Little v. . Denn
New York Court of Appeals
Appeal by plaintiff- from the judgment of the General Term affirming the judgment of the County Court, which reversed that of the justice. The plaintiff brought this action to recover of the defendant the penalty of five dollars, for obstructing a public highway.
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Appeal by plaintiff- from the judgment of the General Term affirming the judgment of the County Court, which reversed that of the justice. The plaintiff brought this action to recover of the defendant the penalty of five dollars, for obstructing a public highway. (1 E. S., 121, § 102.) The complaint alleged that the road was laid out along the line of the land of Bichard E. and William Garrison, and from that point about one hundred rods through the defendant’s land, and that it was opened and worked in 1852, and was used and traveled until the defendant shut it up, by a fence across it, in…
1Concurrence
In the view which I take of this case, the only point of inquiry is, whether, in an action to recover the penalty given by statute for obstructing a public highway (1 R.S., 521, § 102), evidence of the fact of user by the public of the locus inquo as a highway, although for a period of time less than twenty years, is prima facie sufficient to support the action, all the other essential facts being proved? In my judgment it is sufficient.
If the plaintiff were required, in addition to proving actual user, to show also a perfect legal right to such use, in order to make out a prima facie case,…
2Cases cited3 opinions
- Striker v. MottNew York Supreme Court · 1831
- Parker v. Van HoutenNew York Supreme Court · 1831
- Fredonia & Sinclearville Plank Road Co. v. WaitNew York Supreme Court · 1858