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Decisions of the Superior Courts of New South Wales, 1788-1899

Bignal v. Cooper [1828] NSWSupC 45

trespass to land - nominal damages - water rights - abatement of nuisance

Supreme Court of New South Wales

Trial, 20 June 1828

Source: Australian, 25 June 1828

 

This was an action brought for an alleged trespass by the defendant upon ground owned by the plaintiff. [1 ]

It appeared that some time, about 18 months back, in consequence of some heavy rains then falling, the defendant found occasion to deepen the channel of a water course, which runs at the rear of the Brisbane Distillery, and divides the defendant's from a part of the plaintiff's land.  To this work of deepening the water course, the defendant was compelled, in order to hinder his ground from becoming deluged, and that portion of his manufactory within the influence of the water from being injured.  It also served the plaintiff, as his ground was thereby so far preserved from deluge.  What stuff was dug thus out of the bed of the water-course the defendant caused to be cast up on his own land, and with the plaintiff's permission first had, by direction of the defendant a cut was made into the plaintiff's land.  The stuff which had been dug out of the bed of the water course and cast up on the defendant's ground, was subsequently thrown in again, and the plaintiff, after this, brought an action of trespass against the defendant.

During the whole transaction it was not once clearly proved that the plaintiff, even admitting a trespass, had sustained any damage whatever, by the act of the defendant.  On the other hand a number of discerning and veritable persons had gone to view the spot where the damages laid in the information were said to have been done, who agreed unanimously in stating a belief that no damage, or none that could be perceived, had been effected by the defendant.  The Assessors, to whose judgment this case was submitted, finally returned a verdict of one shilling damages.  The question as to costs has not yet, to this day (Monday), been determined, but it is not believed the verdict will or ought to saddle the defendant with more than his own costs.

 

Notes

[1 ] There was a similar dispute in R. v. Macarthur, 1828, with a very different outcome.

Published by the Division of Law, Macquarie University