Hornbeck v. Westbrook

Headnote

The inhabitants of a town, not be~ ins inoorpora~ ted, are inca~ pable in law, to take any estate hi fee. And aproviso in a deed toA. dated in 1728, reserving to the inhibitants of the town of Rocheater, which was not ineor~ porated, the right to cut wood on the lands conveyed, when not in frnce, &c. Was heid to be void. If operative it would Only give the right to the inhabitants of the town, liv. ing at the of perpetnity,

IN error, on certiorari, from a justice's court. The return in the first cause, stated that the parties voluntarily appeared before the justice, and Westbrook, the defendant in error, declared against Hornbeck, the plaintiff in error, in an action of trespass qvare clausumfregit; and for cutting wood, &c. the 1st of April, 1810, on a certain tract of land, which Jacob De Wilt and others, trustees of the town of Rochester, by virtue of the patent to them, by deed, on the 6th of January, 1728, conveyed in fee to Cornelius Hornbeck, for a valuable consideration. The defendant pleaded and justified the trespass, because the deed contained a proviso, that the inhabitants of Rochester should be allowed to cut and carry away wood, &c. from any part of the said land, not in fence, and that he was, and had been, from the 1st of January, 1800, an inhabitant of Rochester, and, by virtue of the said proviso, he entered and cut the wood, &c. and that the locate in quo was not in fence, &c. To this plea there was a general demurrer and joinder, on which the justice gave judgment for the plaintiff for three dollars.

In the Second cause, the return also stated that the parties voluntarily appeared before the justice, and Westbrook declared against Hornbeck, in an action of trespass quare clausum, fregit, and for cutting and carrying away wood, &c. on the 2d of April, 1810, as in the first cause; to which the defendant put in the same plea ; and the plaintiff demurred, and for cause, stated that the proviso in the deed was limited to such persons as were inhabitants of Roches-' ter, on the 6th of January, 1728, and that they were allowed to cut wood, &c. for their own use only. There was a joinder in demurrer ; on which the justice gave judgment for the plaintiff for three dollars.

In the third cause, the return stated the same proceedings as in the last cause, except the trespass was laid on the 3d of April, 1-810, and the defendant in his plea, alleged that the locus in quo was enclosed only by a bush fence, and not by any fence for useful or agricultural purposes; and the plaintiff in his replication, stated that ever since the date of the patent to the trustees of the town of Rochester, the trustees had been in the practice of selling the common lands, by deeds with such provisoes; and that in consequence of such provisoes, it had been a prevalent custom in the town, and universally adopted by the proprietors of the lands, under such deeds, to enclose them with such a fence, for thé purpose of excluding them from the operation of the reservation; and that the defendant knew of such a custom, and that the premises were so enclosed. The defendant rejoined and admitted the custom, and that the locus in quo was enclosed with such customary fence, but that the fence was insufficient, and the custom invalid, &c. The plaintiff demurred, and the defendant joined in demurrer. The justice gave judgment for the plaintiff for three dollars.