Davis v. Smith
Massachusetts Supreme Judicial Court
Tort against the sheriff of the county of Dukes County for the act of Jason L. Dexter, his deputy, in entering the plaintiff’s close in Edgartown and tearing down and removing a fence standing thereon. At the trial in the Superior Court, before Allen, J., without a jury, the plaintiffs offered to prove that the title of the locus where the alleged trespass was committed was in them; and that said locus was not within a town way or private way.
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Tort against the sheriff of the county of Dukes County for the act of Jason L. Dexter, his deputy, in entering the plaintiff’s close in Edgartown and tearing down and removing a fence standing thereon. At the trial in the Superior Court, before Allen, J., without a jury, the plaintiffs offered to prove that the title of the locus where the alleged trespass was committed was in them; and that said locus was not within a town way or private way. The plaintiffs then put in the following evidence: 1. A petition by citizens of Edgartown to either of the trial justices for the county, representing…
1Opinion of the Court
Gray, O. J.
Town ways and private ways laid out under the provisions of our statutes are public ways. Denham v. County Commissioners, 108 Mass. 202. The power conferred upon justices of the peace by the Gen. Sts. c. 46, § 5, to order fences, gates, rails or bars across town ways or private ways to be removed, is no more a judicial power than if it had been vested in the selectmen or in the surveyors of highways, or than is the similar power which any citizen has, under § 4 of the same statute, to remove like obstructions in a county highway. Not being a judicial power, an order of a justice of…
2Cases cited2 opinions
- Denham v. County CommissionersMassachusetts Supreme Judicial Court · 1871
- Marshall v. HosmerMassachusetts Supreme Judicial Court · 1808
3Cited by9 opinions
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- Mobile & Ohio Railroad v. DavisIllinois Supreme Court · 1889
- Casagrande v. Town Clerk of HarvardMassachusetts Supreme Judicial Court · 1979
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