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

Davis v. Kerr [1829] NSWSupC 60

trespass to land - land law, conflicting crown grants

Supreme Court of New South Wales

Dowling J., 26 September 1829

Source: Australian, 30 September 1829

Davis v. Kerr. -- This was rather an important case of precedent.  It was an action of forcible trespass -- a quare clausum fregit.[1 ]  Mr. Wentworth stated the case for the plaintiff, who it appeared had for some years been in the occupation of two separate grants of land, of 100 acres each, from Governors Macquarie and Brisbane, on which plaintiff had raised several improvements, though the grants had not been perfected, otherwise than by the ordinary mode of authorising, through the Surveyor General's Office, the plaintiff to select his land on the spot he had chosen.  Defendant having obtained a grant from the present Governor, Lieutenant General Darling, laid claim to the land so occupied by, and gave the plaintiff notice to quit, which plaintiff refusing to comply with, defendant, with a reinforcement of his men, proceeded to take forcible possession, and pulled down the stock yard, by which means many of the plaintiff's cattle were dispersed and lost, and unroofed the dwelling.  Mr. Kerr, the defendant's Counsel, contended that plaintiff had failed to prove title to the land in question.  But the Court held that if defendant had meant to raise the question as to title (title not being at issue in the case) defendant should have brought an action of ejectment, and not resorted to force, as he had without any right, plaintiff being already in possession.[2 ]  The Assessors found a verdict for the plaintiff -- damages, one hundred pounds.


[1 ] The same cause of action was in issue in Nicholls v. Chisholm, Australian, 9 December 1829.  The plaintiff and defendant had title to adjoining premises, and the defendant leased both to third parties and received the rent.  Dowling J. put four issues to the assessors: whether the land in question belonged to the plaintiff, whether a trespass had been committed, who was liable, and, as to the amount of damages, not considering it a case where excessive damages should be given.  The assessors awarded damages of £25, the plaintiff having claimed £600.  See also Bucknell v. Moran, 1829.

[2 ] The Sydney Gazette reported this trial on 29 September 1829, under the name Davis v. Ryrie.  It stated that the court "held that this was a possessor action in which the title was not in issue/  if the defendant intended to raise the question of title, he should have brought an action of ejectment, and not have resorted to those forcible means which he had adopted.  The possession was sufficient against a wrong doer; and it was therefore for the Jury to say, what reasonable damages they would afford for the losses which the plaintiff was proved to have sustained."

Published by the Division of Law, Macquarie University