Fulton v. Monahan

4 Ohio 389 | Ohio | 1829

By the Court :

The plea does not set forth, with sufficient certainty, the authority under which the defendant professes to have acted. The government necessarily acts by its officers ; and whenever an individual undertakes to justify a trespass, under the authority of government, that authority must bo traced to some officer of the government, known and recognized by law as such.

*The defendant, however, in this ease seems to have rested his defense principally upon the grounds that the National road had boon located near the plaintiff’s close, and that stone were necessary in the construction of that road. Admitting these grounds^ it by no means follows that it was necessary to use the plaintiff’s stone. If he chose to rest his defense upon the necessity of using the plaintiff’s stone, he ought to have set forth the facts, that the court might judge of the necessity, A man may justify going over another’s ground, by reason that the common highway is founderous, or out of repair; but, in his plea of justification, it is not enough to say, that it was necessary for him to go upon the adjacent land, but he must allege specially, that the highway was out of repair, or founderous. Doug. 747; 1 Saund. 298; 1. Story’s PL 607.

Demurrer sustained.