Auburn and Cato Plank Road Co. v. . Douglass
New York Court of Appeals
■ The plaintiffs, a corporation organized under the general plank road acts, had built their road upon the line of an old highway which bounded the defendant’s farm on one side, and had erected a toll-gate on that part of their road which ran by his farm.- After the erection of the gate the defendant moved his fence from' the line of the road where it originally stood, ’ back upon his" farm some twenty or thirty feet, and graded a track by the side of the road, but' entirely…
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■ The plaintiffs, a corporation organized under the general plank road acts, had built their road upon the line of an old highway which bounded the defendant’s farm on one side, and had erected a toll-gate on that part of their road which ran by his farm.- After the erection of the gate the defendant moved his fence from' the line of the road where it originally stood, ’ back upon his" farm some twenty or thirty feet, and graded a track by the side of the road, but' entirely upon his own land, extending on both sides of the tollrgate, so that persons traveling upon the road could, if…
1Opinion of the CourtSelden, J.
The plaintiffs in this case must rest their claim to restrict the defendant in the use which he shall make of his own property upon one of two grounds, viz., 1. -That the case is within the scope of that maxim of the common law which requires every man so to use his own property as not to inflict injury upon others; or 2. That the statute which creates the plaintiffs’ franchise impliedly enacts whatever is necessary to protect them in its enjoyment. Unless this action can be sustained upon one of these grounds, there is no sound legal principle upon which it can rest. In regard then to the…
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