¶1The proprietors for whom the defendant acted if they have any remedy for the land taken for a public way, bj virtue of any agreement, have wholly mistaken their remedy The way was duly laid out by competent authority, and became a public way. The fact that the owner was a female, undei age, or under coverture, did not prevent the competent authori ties from appropriating it to the public use. They did no* derive that authority from any supposed or actual contract with the owner; nor could she, upon any alleged failure in the performance of any alleged contract, have power to annul the act of taking, and resume possession of the land thus appropriated to public use. Fencing in part the street, therefore, by hei command and in her right, could not be justified by the defendant, and was a public nuisance. Exceptions overruled
80 Mass. 33
Commonwealth v. Smyth
Massachusetts Supreme Judicial Court
Decided October 15, 1859
Massachusetts Supreme Judicial Court · decided 1859-10-15
Indictment for a nuisance by obstructing a street in Worcester by building a fence thereon. At the trial in the court of common pleas the following facts were proved or admitted: In 1854, Helen F. Haskins, being the owner of a lot of land bounding on said street, was married to Warren Bradlee, having previously, together with him made and recorded an agreement, pursuant to St. 1845, c. 208 that she should hold this land to her separate use and benefit.
Decided 1859-10-15