The Bennington banner. [volume] (Bennington, Vt.) 1858-1894, 1889-04-25
IN CHANCERY. BENNINGTON COUNTY.


Thomas Powers, Nellie Powers and Nora Power
Whereas William II. stockwell of Benningto
in said County has filed in the office of the Cler
of the Court OF Chancery in and for said Count
his bill of complaint against James IL Fitzgerald
Frank Thompson and Margaret Morrissey Q
Rennin0ton In said County, Edward Morrissey Q
parts unknown Nellie McCurneY, Patrick McCul
ney of Hoosick Falls in the State of New York
Mary Mack and Michael Mack OF Benningto
aforesaid, Margaret Barnes and Patrick Barnes O
said Hoosick Falls E. Z, Houghton administrato
of the estate of Patrick Morrissey, deceased
ofBennington aforesaid, Edward Fitzgerald, Ell
ecutor Of the will Of Michael Fitzgerald, decea'
ed of Troy in the State of New York
Margaret Jones, Luther Irish, Henry Stockwe
and Helen Harvey of Bennington aforesaid, Phil
ip Harvey OF parts unknown, Johanna PParns s.
Thomas Powers Nellie Powers and Nora Power
of Bennington aforesaid, setting forth in sub
stance -
County of Washington in the State Of New York
on the first day of April, A. D., 1oT2 was tn
owner in fee OF about eighty acres OF land situat
in Bennington aforesaid, bounded and described
Ms follows, viz - -
on the north by lands owned by Trenor W
Park and lands owned by Henry d. Hall; on thu
east by lands owned by Trenor W. Park an'
lands owned by widow Nancy Edgertoni on The
south by lands formerly owned by Samuel l.
Preston lands owned by the Widow Terrell anC
lands owned by David Steward and the highway
leading westerly from the Paper Mill Village, Sc
called, to the Stone Church, on the west by land
owned by David Steward, the Widow Terrell
lands formerly owned by Samuel l.. Preston anC
lands owned by IL. Burden 4 Sons.
Ihrt said lands were not in proximity 10, or &C
cessbe from any highway except the highway
above referred to;
That said Pruyn ON or about the first day o.
April, A. d. 1872, and himself and his grantees
subsequently there, to haye divided and subdi
vided said lands into seven or more distinct and
separate parcels
utva pfg nurcplg ha puusPl TO he
ed by Edward, Rice, surveyor, private way lead
ing from said highway northerly across the entire
tract of said land to lands OF II. D. Han, Tor Inc
use, benefit and accommodation of the future pur,
chasers and owners Of four Of said separate and
distinct parcels which otherwise were wholly sep
arated and isolated from said public highway by
other parcels constituting the remainder OF SAID
entire tract; ,,
That said private way was two rods IN width
and the centre line thereof was surveyed Oy the
said Edward Rice as Aforesaid as follows;
Beginning one and one half rods south OF Bur
den's north line and at the fence east OF Paran
Creek, thence on Halls south line east l3lt deg.
south, II rods to n point III rods east OF Hal $
south east corner; thence south "a deg. west, III
rods; thence south ~ deg west, 81 rods, II links
to beech tree; thence south, "a deg west, o.
rods to butternut tree standing in or near the
nOrJh line of the highway leading from the Meth
odist Church at Hnsdillville so Called easterly 10
Bennington Village,
That said Pruyn, A. d. 1872, and before convey:
ing away any of said parcels of land dedicated
SAID DrlNhte way, so surveyor US " lHO
free uninterrupted and unolstructed use OF all
subsequent owners and occupants OF said separate
parcels of land not contiguous to said Highway
forever;
vatiOns express and implied, said right OF way
surveyed as aforesaid, has become and is an ease
ment in and upon all of the lands over which the
sane was surveyed us aforesaid, appurtenant TO
the several parcels of said entire tract divided and
sublvided as aforesaid;
That the defendant Fitzgerald owns in fee and
occupies the lands on the east side OF said prl'
yate way extending from said highway nOrtherly
about twenty-five rods to one OF said four scpa-
rate parcels of land now owned in fee by your ora
tor and occupied by his tenants, Henry Stockwel
and Luther Irish, and that the defendant FRANK
Thompson claims to have some interest in sad
lands owned and occupied by said Fitzgerald
and also in said private way; ,
That the defendants, Margaret, Morrissey as VIA
ow, Edward Morrissey, Nellie McCurney and Pat
rick McCurney her husband in the right OF his wife
Mary Mack and Michael Mack her husband in the
right of his wife, and Margaret Barnes and Pat
rick Barnes her husband in the right OF his WIFE,
as heirs at law Of Patrick Morrissey late of Ben
nington aforesaid, deceased and Edmund
C.. Houghton as administrator oil the es-
tate of said Patrick Morrissey, claims to
own and occupy lands on the west side OF sad
private way extending from said highway north.
erly about thirteen rods - one of said four sep
arate parcels of land now owned and occupied by
Margaret Jones, and claim to have some interest
in said private way;
That the defendant Margaret Jones owns 10 fee
and occupies the lands on the west side OF SAID
private way extending from me said Morrssey
lands northerly about twelve rOds 10 tne salu
lands of your orator;
That one of said four parcels Of land referred
TO as your orators land adjoining the sald iahds
OF Fitzgerald and Jones on the north IS traversen
by said private way and contains about eight
acres of land and has standing thereon Two dwell
ing houses and outbuildings connected Herewith,
which two dwelling houses are occupied rcspec'
lively by the said Henry Stockwell and Luther
Irlsh W hO have and claim to have an interest IN
said private way and who have no other means
ofingress and egress to and from their respective
dwelling houses, and that said out6ulldlngs are
occupied in part by your orator IN common with
the said Henry Stockwell for the purpose of keep
ing cattle aud other farming stock and for storage
of hay and grain and farming tools and Tor other
farming purposes, and that your orator has Occa'
sion to and has a right TO use said right OF way
for the purpose of passing to and from SAID out
buildings with cattle, teams and vehicles ana Tor
transporting farm produce TO and from the sanei
that the said Henry Stockwell and Luther Irish
respectively tenants by parol leases from
" orator, for one year from April trst A. d.
1889;
That Thomas Harvey, late of Bennington afore-
said deceased died about nine years ago seised
in fee simple of of said four parcels, contain.
ing about ten Of land, also traversed by SAID
right OF way and joining your orators parcel oc,
cupied by him and the said Henry Stockwell and
Luther Irish as aforesaid on the north. on which
stands dwelling house and outbulldlngs and the
same is now owned and occupied by the defend
ants Helen Harney, Bnlllp l1arney, JOnhnnd maj
ney, Bridget Harvey, Mary Harvey, James Pow
crs, Thomas Powers, Nellie Powers and Nora
Powers rs Successors to the said Thomas Harvey
in the chain Of title, who have and claim to nave
an interest in said private way and have no other
means OF ingrcss and egress to and from their
said land
That one other OF said four parcels Of land, con.
tanning about eight and one half acres OF land,
also tTayersed by said right of way and Joining
the said Harvey lands on the north. Is owned by
your orator in fee and is occupied by the SAID
Henry Stockwell as tenant under parol lease IRON
your orator for one year from April nrst A. D.
1889, and that your orator and the said Henry
StoCkwel have right TO pass and repass over
said private way to and from said last mentioned
parcel for all proper and necessary purposes Incl
dent to the pasturage and cultivation thereof
That Edward Fitzgerald, surviving executor OF
the last will and testament of Michael Fitzgerald
late of Troy in the County of Rensse aer and state
of New York. deceased, testate, claims TO be the
owner and legally entitled to the possession Of the
SAID parcel OF land claimed and occupied by the
widow, heirs at law and administrator of Patrick
Morrissey, deceased AS aforesaid, and also claims
to have an interest IN SAID private way In MS sau
capacity as executor:
That for many years next prior to April first
A. ID. 1857, your orator personally occupied, cul
tivated and improved the several parcels Ofland
owned by him rs aforesaid for farming purposes
and had frequent occasion and the legal right TO
pass and repAss over said private way with foot
men, animals, teams and vehicles, loaded and I'M
loaded;
That at some time subsequent to April first A.
d. 1872 and prior 10 March twenty fourth A D
1884 but at or near what point of time your orator
is unable to state; passage!way was constructed
commencing at the north line Of lands now own
ed by James H. Fitzgerald as aforesaid at or
near said private way AS surveyed by Edward
Rice and extending southerly in nearly straight
line TO said highway by course bearing slightly
westerly from the said private way as surveyed
by Edward Rice which said passage way has been
fenced on either side for the most part and has
been used by your orator grantors and your ora
tnr nd nv ha and pcpunants of the
eral parcels OF land above referred to not contg
uous to said highway, as means OF ingress and
egIess 10 and from the same IN lieu OF SAID prl
Yate way laid out and dedicated TO that pur-
pose as aforesaid, and the said James IL. Fitz.
gerald claims that the owners and occupants OF
said lands not contiguous to the highway must
continue hereafter as heretofore to use said pas
sage way In lieu OF said private way surveyed by
Edward Rice AZ aforesaid, and that they have no
right whatever to the Of said private way as sur
veyed by Edward Rice from said James H. Fitz-
gerald's north line southerly to said highway, a
distance OF about twenty-five rods; and the said
James IL. Fitzgerald, during his occupancy of the
parcel of land owned and occupied by him as
aforesaid for more than four years iast past, has
maintained fence commencing az or near the
east line of said private way where the same
crosses his north line, thence running obliquely
TO said private way and crossing the Same 10
point on the north line of said highway at the
east line of said passage way and near the west
line of said private way, which said fence has dur
lug all that time as so maintained by the said
James H. Fitzgerald, Wholly oOstructed, inter
rupted and prevented your orator, his tenants and
servants, and the owners and occupants OF other
parcels Of said lands not contiguous TO the high
way from passing and repassing over said pr
vate way as they had rightto do to his and their
great annoyance, interruption and obstruction in
the prosecution OF their necessary and proper
business, and also TO his and their great injury
and damage; which said fence so maintained by
the said James II. Fitzgerald as aforesaid be
tween Its two terminal points, curves to the west
ward and projects beyond said private way into
and upon said passage way and has during all
that time obstructed and prevented your orator
contiguous to the highway, from passing and re.
nassinR said nm IN In and alnnnt their