Wynkoop v. Burger

12 Johns. 222

• Court: New York Supreme Court
• Decided: May 15, 1815
• Status: Published

Opinion

Per Curiam,

The judgment of the court below must be i affirmed. The right of way is established by grant; and there is, of course, no necessity for presuming a grant, from the long acquiescence in the use of the way. The grant does not designate the precise place; but the length of time the way has been used in a particular place shows the location by the„ acts and acquiescence of the parties. It would be extremely*' unjust to allow the plaintiff in error, to be changing this road whenever he pleased. As it is a private way for the accommodation of the defendant in error, it must be kept in repair at his own expense. With respect to the alteration, at the place called the canoe place, it is fairly to be intended, that it was done by the consent of the defendant in error, as it has been used by him, since it was altered, for such length of time as to show an acquiescence in the alteration. But it is not so with respect to the alteration made at the corner, designated upon the map produced to the court, by the letter B : and this alteration is evidently injurious to the defendant in error, as it increases the distance of travelling, in a small degree. Whether the damages recovered do not exceed the injury, is a question which we cannot notice here.

J udgment affirmed.