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

Munn v Bettington (1831) NSW Sel Cas (Dowling) 491; [1831] NSWSupC 74

injunction, nuisance - nuisance, injunction - land law, inchoate right

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 31 October 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 111] [An injunction will not lie to restrain a [p. 112] party from erecting a Wharf in Sydney Harbour to the prejudice of the Inchoate rights of another party.][1 ]

[p. 111]

Monday 31st October 1831

Munn v Bettington

Coram  Forbes CJ

Stephen J

Dowling J

This was an application for an injunction to restrain the Defendant from building a [p. 112] certain wall or Wharf in Darling Harbour whereby he anticipated great privation of the deep water of the harbour which was necessary to the carrying on of his business of a Ship Builder.  The affidavit of the Plaintiff stated that he being a Ship builder by trade applied in 1824 to the local Government for an allotment of land abutting on the deep water of Darling Harbour, for the purpose of erecting a Wharf Dock and other buildings necessary to the carrying on of his business and having received permission to take possession of said land for such purpose, he took possession accordingly an commenced business under a promise of a Grant of the same land after he should have perfected certain improvements.  That the Defendant occupied some [p. 113] adjacent land in the same harbour and was in the progress of erecting wharfs and walls in such a manner as would abridge him the free use and enjoyment of the deep water of that part of the harbour, which was necessary to the carrying on of the business.

Forster contended that this was a case in which the Court would grant an injunction, to prevent an irreparable permanent injury for which the Plaintiff could never be compensated of the nuisance complained of was suffered to exist.  Norton contra contended that no injunction would lie in such a case and the only remedy the Plaintiff could have was at law.  To stay water or to prevent an injury to property the right of which was indefeasible, was another matter but here the Defendants right of property was inchoate, and non custat if the Grant of land be made out it would be complied with con- [p. 114] ditions which would prevent the Plaintiff from monopolizing the deep waters of a public harbour.

The Court took time to look into cases in which an injunction would lie & finding none to warrant such an application in this case.

Forbes CJ. said the Court could not interfere, under the circumstances disclosed.

Stephen J. same opinion

Dowling J  For anything that appears to the contrary the Plaintiff may himself be overreaching on the Harbour to the injury of the public use of the deep water of the harbour as a highway.

Injunction refused.

Notes

[1 ] The Sydney Herald, 7 November 1831, recorded the preliminary hearing as follows:

"Munn v. Bettington. - Mr. Foster moved for an injunction to stay defendant from continuing a building he had commenced in Darling Harbour, which would irreparably injure plaintiff's property.  The bill having been filed, and notice given, he made the motion on the affidavits of plaintiff and Mr. Florance, the Surveyor.  The Court would look into authorities, and decide the case on Monday."

On land law, see also Napthali v. Thomson, 1831, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 88, which begins with the following summary: ``Where leave and licence was pleaded in trespass for erecting a wall on Defendants land.  Held that after the Plaintiff had at first objected to the alleged Trespass and afterwards permitted it to go on without further objection having the means and opportunity of doing so Held [p. 89] that this might be considered leave and license."

Published by the Division of Law, Macquarie University