William Holcombe, Plaintiff In Error v. John Kusick, Jonathan McKusick, Christopher Carle, Horace McKinstry, Elias McKean, and Joseph York
| Decision Date | 01 December 1857 |
| Citation | 61 U.S. 552,15 L.Ed. 1020,20 How. 552 |
| Parties | WILLIAM HOLCOMBE, PLAINTIFF IN ERROR, v. JOHN McKUSICK, JONATHAN E. MCKUSICK, CHRISTOPHER CARLE, HORACE K. MCKINSTRY, ELIAS MCKEAN, AND JOSEPH C. YORK |
| Court | U.S. Supreme Court |
THIS case was brought up, by writ of error, from the Supreme Court of Territory of Minnesota.
The case is stated in the opinion of the court.
It was argued by Mr. Bradley for the plaintiff in error, upon which side there was also a brief filed by Mr. Brisbin and Mr. Stevens, and by Mr. Cushing and Mr. Gillet for the defendants.
This is a writ of error to the Supreme Court of the Territory of Minnesota.
The suit in the court below was brought to recover damages for wrongfully entering the plaintiff's dwelling-house at Stillwater, Minnesota Territory, and doing great injury to the same, removing it from its foundations, damaging and destrouing the personal property therein, &c.
The defendants, in their answer, set forth an act of the Legislature of the Territory of Minnesota, incorporating the city of Stillwater, and conferring upon the municipal authorities the usual powers for the well government of the inhabitants thereof; the organization of the government of the city under its character, and the election of its officers, and, among others, that one of the defendants, J. E. McKusick, was elected marshal. The answer set forth, also, an ordinance passed by the city council, in pursuance of authority given by the charter, which, among other things, provided for the removal of obstructions in the public streets and landing places, and conferred authority upon the marshal to remove such obstructions. The answer then sets forth that the plaintiff's dwelling was erected upon Main street in the city, and obstructed the free use of the same, and had become a public nuisance; and that the marshal removed the said obstruction, in pursuance of the authority conferred upon him by the ordinance, which is the act complained of by the plaintiff; and that the other defendants were called in to his assistance in the performance of this duty. The answer then denies the special damage set up in the complaint.
The plaintiff, in reply to the new matter set forth in the answer, denies, according to the formula prescribed by the Minnesota code, the existence of the charter of the city of Stillwater, set forth in the answer, and avers that no act of incorporation was ever published, as prescribed by the laws of the Territory. The plaintiff then sets out at large a charter of the city, which was published according to law; denies the election of the municipal authorities under the charter, also the existence of any city ordinance passed by the city council; and the election of the defendant, McKusick, his qualification in the office, or that he ever entered upon his duties. The plaintiff also denies that his dwelling-house was erected on Main street, or that it obstructed the same.
There is also a long statement respecting the title to the land embraced within the corporate limits of Stillwater, which it is not material to set forth. The plaintiff further denies that, in making the removal of the dwelling-house, the defendants used proper care and caution to prevent unnecessary damage.
The defendants have demurred to all that portion of the reply which commences with denying the existence of the act of incorporation of the city of Stillwater, and including the charter set forth in the answer. They demur also to the allegation in the answer, stating that the dwelling-house was erected prior to the 12th day of September, 1848; and, also, to all that part of the answer relating to the title to the land embraced within the city of Stillwater.
The defendants also made a ...
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