Patrick Morgan v. Manis Boyes

65 Me. 124, 1876 Me. LEXIS 27

Opinion

Walton, J.

This is an action of trespass quare clausum, fregit. The only question is whether the plaintiff’s possession, or right of possession, is such as will support the action. We think it is not. He has only a right of way over the locus in quo. Such a right does not carry with it a right to the exclusive possession of the land. The owner may still use it for any purpose which does not materially impair, nor unreasonably interfere with its use as a way. He may use it as a way himself, or permit others so to use it. The defendant had such permission so to use it. His entry was not therefore a trespass. Certainly it was not a breach of the plaintiff’s close. It in no way interfered with the plaintiff’s use of it as a way. Nor was the removal of the obstruction, placed there by the plaintiff for the express purpose of preventing the defendant’s use of the way, a trespass. The obstruction was a nuisance, and the defendant had a right to remove it.

Judgment for defendant.

Appleton, C. J., Barrows, Daneorth, Virgin and Peters, JJ., concurred.