Holmes v. Seely
New York Supreme Court
This was an action of trespass quare clausum fregit, tried at the Westchester circuit, in December, 1835, before the Hon. Charles H. Ruggles, one of the circuit judges. • The suit was brought for passing over an eighty acre lot of land with cattle, carriages, dec., the defendant claiming a right of private way over the same, which right was disputed by the plaintiff; and for taking absolute possession of a portion of the lot by the erection of a fence beyond, as the…
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This was an action of trespass quare clausum fregit, tried at the Westchester circuit, in December, 1835, before the Hon. Charles H. Ruggles, one of the circuit judges. • The suit was brought for passing over an eighty acre lot of land with cattle, carriages, dec., the defendant claiming a right of private way over the same, which right was disputed by the plaintiff; and for taking absolute possession of a portion of the lot by the erection of a fence beyond, as the plaintiff alleged, the true division line between the lands of the parties. In 1792, one Lewis McDonald, being the owner 0f the…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
The judge decided correctly that the plaintiff could not recover damages in this action for the entry upon the close in the spring of 1833, as it was then in the possession and occupation of his tenant, *509The plaintiff must have the actual possession at the time, or what is .deemed equivalent, a possession which the legal title draws after it. 1 Johns. R. 512. 12 id. 184. 9 id. 16. 10 Wendell, 639. Saund. Pl. & Ev. 866, 868, and cases there cited.
The second count of the declaration charges an entry and ouster of the plaintiff in respect to the small portion of land…
2Cases cited2 opinions
- Case v. ShepherdNew York Supreme Court · 1800
- Van Rensselaer v. RadcliffNew York Supreme Court · 1833
3Cited by50 opinions
- Powers v. HarlowMichigan Supreme Court · 1884
- Weimer v. BunburyMichigan Supreme Court · 1874
- Palmer v. . PalmerNew York Court of Appeals · 1896
- Oliver v. HookCourt of Appeals of Maryland · 1877
- Kripp v. CurtisCalifornia Supreme Court · 1886
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