Perley v. Chandler
Massachusetts Supreme Judicial Court
This was an action of trespass for obstructing the plaintiff’s watercourse in Winthrop, and filling up the same with logs, stones, and earth. The defendant pleaded that the watercourse mentioned in the plaintiff’s declaration was a nuisance in the highway in Winthrop, and that the abatement of that nuisance was the trespass alleged.
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This was an action of trespass for obstructing the plaintiff’s watercourse in Winthrop, and filling up the same with logs, stones, and earth. The defendant pleaded that the watercourse mentioned in the plaintiff’s declaration was a nuisance in the highway in Winthrop, and that the abatement of that nuisance was the trespass alleged. To this plea the plaintiff replied in substance, that he was seised of a close of land on each side of the highway, the one close on the north, and the other on the south side; and that he was [ * 455 ] possessed of a right of conducting water * from the close on…
1Opinion of the CourtParsons, C. J.
[After stating the pleadings and the facts.] There is a defect in the case. It is not alleged that John Chandler was seised of the land covered by the highway, which lies between the two closes ; and although this land is expressly levied upon by Amos Perley’s execution, yet it is not stated that the watercourse in question was sunk in this land, nor that the way had been previously laid out.
But taking it for granted, as John Chandler owned the closes adjoining on each side of the way, that he also owned the land over which the way passed; that it was the land described in Amos Perley’s levy…
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