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

R v West [1831] NSWSupC 66

land law, title - permissive occupancy - land law, title by prescription - land law, Crown grant - trespass - intrusion

Supreme Court of New South Wales

Stephen J., 12 October 1831

Source: Sydney Gazette, 22 October 1831[1 ]

(Before Mr. Justice Stephen, and a

Special Jury.)

The King, v. West.

The following gentlemen were sworn on the Jury: Thomas Walker (Foreman) G. Johnstone, J. Inglis, W. Hutchinson, J. BH. Montefiore, J. B. Bettington, G. Acres, J. Browne, G. McDougall, J. Thompson, and T. Foster, Esqrs.

This was an action of intrusion brought by the King to recover possession of 34 acres of land, adjoining the South Head road.  The defendant pleaded the general issue - non intrusit.

Mr. D. Chambers opened the pleadings.

The Attorney General stated the case.  The learned gentleman said, this action is brought for the recovery of between 30 and 40 acres of land, adjoining the South Head Road, into which the defendant has intruded without a shadow of right.  He claims under a permission formerly given to him by Governor Macquarie, but it will be seen that that permission, upon which the defendant rests his claim, by no means bears the construction which the defendant wishes to put upon it, and that the defendant himself never, until a very short time ago, pretended any title to that piece of land, for which this action is brought.  The defendant has pleaded the general issue, and probably means to rely, first, upon his possession for 20 years; next, upon the permission granted to him by Governor Macquarie.  With respect to the first plea, viz. the possession for 20 years, if the defendant even could prove such a possession, it does not appear that it would be available to him in the present instance; for that plea is only valid, because a grant, or some good title is presumed, to defeat which the crown must shew a better title; but here the defendant cannot avail himself of such plea, for he has by his own letter rested his claim not upon any length of possession, but upon an authority from Governor Macquarie.  In the year 1810, Mr. Thomas West, the defendant, being anxious to erect a water mill near Sydney, applied to Governor Macquarie to grant him permission to construct one on a scite about a mile and a half from the township of Sydney, and lying near the South Head Road, by which (as stated in the memorial) it is bounded on one side.  The memorial which West presented to Governor Macquarie, with the Governor's answer thereto, which form the ground-work of his now pretended claim, are as follow:-

'To His Excellency Lachlan Macquarie, Esq. Captain-General and Governor-in Chief, &c. &c. &c.

The very respectful solicitation of Thomas West, humbly sets forth -

`That the applicant did humbly petition your Excellency to grant him permission to construct a water mill on a scite about a mile and a half from the township of Sydney, and lying near the South Head road; by which it is bounded on one side.  That the stream which the applicant designs to use (if favoured by your Excellency's permission), empties itself into Double Bay, and appears sufficient for the purpose aforesaid - that the applicant very humbly intrudes again upon your Excellency's consideration, and prays your acquiescence in his said request, and for such indulgence he will evince a lasting sense of obligation, by endeavouring to render the project as extensively useful as it may admit.

`Most humbly subscribed,

`THOMAS WEST.'

On the back of that memorial, Governor Macquarie wrote in his own hand as follows:- ` The memorialist, Thomas West, has my permission to erect a water mill to the ground specified in his memorial, with an exclusive right to the stream alluded to, and of which he will receive a lease or grant, so soon as the mill is finished - L. M.' ---  After this permission was given, West commenced and built his mill in a situation to have the benefit of the various streams which joined into one channel above his mill.  His mill was completed, but there is no trace of his ever having applied for, or having obtained any lease or grant from Governor Macquarie, in pursuance of his promise.  In the same year (1810), a person of the name of Leith, applied to Governor Macquarie, stating, that a number of springs of water in the vicinity of Sydney might be collected into one pond, so as to form a reservoir to turn a grain mill, and solicited the Governor to give him (Leith), a grant of the said springs, and of a competent portion of land whereon to build a water grain mill, to which Leith received a reply, that the Governor had no objection to grant him an adequate quantity of land whereon to build a water-mill, provided the situation did not in any way interfere with a prior engagement of Mr. Thomas West, whose ground and spring must be strictly secured and previously marked out.  At this time West had not commenced building his mill, but it so happened that the very scite chosen by Leith was the same upon which West chose to erect, and on which he afterwards did erect his mill; and consequently Leith gave up his intention of building a mill, and afterwards went to Launceston, where he built other mills.  Leith having abandoned his project, West built his mill, and used the waters of the different springs, which concentrated above his mill, and of which Governor Macquarie had promised him a lease or grant, so soon as the mill was built.  West, however, never did obtain a grant, but took possession of a quantity of ground surrounding his mill, and remained in possession thereof, as originally fenced in, until the present time.  He, however, gradually (unperceived) made encroachments beyond his original boundaries.  Upon search being made among the records in the Surveyor-General's Office, a survey and chart of West's ground, which was made in 1816 by Mr. Meehan, then Deputy Surveyor General, has been discovered, and subsequently - a surveyor having been sent to verify Meehan's plan - the boundaries, as described to him, were correctly defined.  Of the identity of the ground, there is no room to doubt.  A marked mahogany tree, mentioned in Meehan's measurement, was found, and also the road to defendant's house - the bearings of the two corners of the mill - the junction of the two drains and water-courses, with other particulars set down in Meehan's field-book were all ascertained, and the boundaries thus defined contained 43 acres, 1 rod.  Now, although even to this portion of the land the defendant has no legal claim, yet the Government have no desire to deprive him of it, as it appears from Meehan's memorandum, that in 1816, the defendant thought himself entitle to so much.  About three years ago, the Surveyor-General, in order to complete his plan of the allotments on Woollomolloo Hill, and not being able, at that time, to find any record of the survey of the defendant's ground in his office, applied to the defendant to point out the boundaries, who having done so, the Surveyor-General delineated, on his plan of the vacant lands in that neighbourhood, the fences which then enclosed the grounds occupied by the defendant, as the boundaries of his land.  A short time since, however, the defendant called on the Surveyor-General, and stated his intention to fence in his land to the South Head road.  Major Mitchell reminded him of what had passed at the survey taken three years before, and the boundaries which the defendant had then pointed out; but the defendant replied that he had since found a paper, which he produced, by which he considered himself entitled to the land he was about to enclose.  The Surveyor-General cautioned him against putting up the fence, and immediately reported the circumstance to the Colonial Secretary; and upon farther search among the old field-books in the Surveyor-General's Office, the survey of Meehan was discovered, which described the land as measured in 1816, and containing 43 acres, 1 rod.  Upon the defendant being informed of this description having been found, and of its date, he denied that the land had been measured that year; though afterwards, when Mr. Dixon, a surveyor, had gone over Meehan's survey, on the ground, the defendant stated that he had not followed exactly, the line of Meehan - a circumstance which shows how well he must have known of Meehan's measurement.  It appears also, that the fences which have been erected by the defendant a few years ago, and which the Surveyor-General took, from the defendant's own statement; as the boundaries of his land, contained seventeen acres more than were measured to him by Mehan; so that, even then, he had encroached considerably, without its having been discovered.  Not content, however, with that encroachment, he has lately thought proper to fence in 19 acres and a half more (though cautioned against doing so by the Surveyor-General, coming up to the South Head road; and making curved lines, which were never known in any grant made in this Colony.  Upon being applied to by the Government to know what title he had to the land he was enclosing near the new gaol, on the South Head road, he replied that ``Governor Macquarie had ordered the land to be measured to him, as a remuneration for putting up the first water-mill erected in the Colony, and which land was so measured by Mr. James Meehan, Deputy Surveyor;" and, he adds, ``I hold a document under the hand-writing of Governor Macquarie, ordering my occupation of, and describing this land as bounded by the South Head road and Rush Cutters' Bay."  At the time he this reply was given, the survey made by Meehan had not been found, and the defendant having heard from the Surveyor-General that no survey was recorded in his office, he thought he was safe in saying that the land upon which he was encroaching had been measured by Mehan.  But coupling his statement that Meehan had measured his land, with the survey itself, abundant evidence is afforded that he is not entitled to more land than is contained in Meehan's survey.  With respect to the second ground upon which the defendant relies, namely, the document under the hand of Governor Macquarie, it is worthy of particular atrention.  He applies for permission ``to construct a water-mill on a scite about a mile and a half from the township of Sydney, and lying near the South Head road, by which it is bounded on one side."  He then adds, ``that the stream which he designs to use, if favoured by His Excellency'' permission, empties itself into Double Bay, and appears sufficient for the purpose aforesaid."  It is manifest, therefore, that he wanted merely a scite for a mill, and a grant of the streams of water which flowed to, and concentrated at, the scite, not to obtain 70 or 80 acres of land.  In fact, the land there, at that time, was not deemed of any value, and if it had continued as valueless at the present day, the defendant would never have set up this pretended claim.  If the government were to insist strictly on the rights of the crown, they might dispossess the defendant even of the 40 acres, as measured to him by Meehan, and leave him nothing but the scite of his mill; but the government are willing to cede to the defendant the 40 acres which were measured to him in 1816, and of which he has since then been in some sort of possession.  It would be absurd to suppose, that the crown could be divested of its title by such a document as that under which the defendant claims, to any quantity of land which he chose to demand.  He might as well demand the whole of the ground from the South Head-road to the Pacific Ocean, as that which he now claims.  The defendant's title against the crown could not be complete until he obtained the promised lease; and if that lease had been made out, it is very probable that it would not have comprehended even the 40 acres.  There is nothing in Governor Macquarie's answer binding him to give any quantity of land; and it would have been a perfect fulfilment of his promise if he had granted but one or two acres, together with the springs of water; for it was the water, not the land, which he wanted.  Notwithstanding a notice from the Colonial Secretary, the defendant persevered in fencing in the land, and has now enclosed 37 acres beyond the boundaries of Meehan's measurement.  If he had been satisfied with the land within his old fences, containing 70 acres more than he was entitled to, he might probably never have been disturbed; but now, by his further encroachment, he has enabled the government to ascertain clearly that the boundaries which he himself pointed out to Major Mitchell four years ago, contained 17 acres more than he was entitled to, and of which 17 acres, he will now be deprived.  After some further observations, the learned Counsel proceeded to call the following witnesses:-

Major Mitchell examined by Mr. Therry - I am Surveyor-General of the Colony; I succeeded Mr. Oxley in June 1828, or 1829; previous to which I had been Deputy Surveyor-General; while I filled that office, I was directed to make a report of the vacant land in the neighbourhood of Woollomolloo; I found the defendant in the occupation of some land, the boundaries of which I found some difficulty in ascertaining, as I could find no plan in the office; I asked defendant what were his boundaries, and he pointed to some old stumps, which he said had been marked by Mr. Meehan; I marked his fences on my sketch, which I considered the easiest way of ascertaining his boundaries; this plan shows my original sketch as I found the fences standing; defendant would not admit that the cross line marked by me on the plan was any part of his boundary; I asked him if that cross line was his boundary; he said it ran to a black stump beyond the line, which he said had been marked by Mr. Meehan; he said the line was to run somewhere thereabouts; the utmost extent claimed by defendant was to the  black stump of which I have spoken; he made no claim to the extent of the South Head road, as marked on this plan; at that time there was no idea of forming the present Woollomolloo road; some time after this, defendant called on me, and said he intended to enclose all his ground, which was the first time he claimed it to extend to the South Head road; he said he had discovered some paper since I had before surveyed the land; I think he showed me the paper, which was an application from the defendant to Governor Macquarie, and His Excellency's memorandum on the back of it; I advised him not to encroach, but he said he would go on; I appointed a day for him to meet me at the office, and in the meantime another search should be made for any document which could throw light on his claim; such search was made, and Meehan's original survey-book was found in the Surveyor-General's Office, and also a chart in the Colonial Secretary's Office, which proved the correctness of the memorandum in the book.

Thomas Meehan - I am the son of the late Deputy Surveyor-General Meehan; these memorandums are in my late father's handwriting.

Major Mitchell re-called - West said, before this sketch was found, that we did not know the quantity of land he was entitled to; it was after that conversation, and after I had cautioned him not to put up the fence, that these documents were found; after they were found, I sent Mr. Dixon, a surveyor, to rectify the lines, according to Mr. Meehan's book; I also sent Mr. Hoddle subsequently to do the same; I think Mr. Dixon's measurement was 40 acres; I understand that Mr. Meehan used to allow rather more than less, generally, than the alloted portion; the memorial to Governor Macquarie was the only document produced to me by the defendant, to ground a claim to a larger quantity; it made no impression on my mind; the value of land in that neighbourhood has considerably increased since 1810; more than from shillings to pounds I should think; it was scarcely worth fencing in 1810; the universal mode of measuring in this Colony is by straight lines, except in following a natural line, such as a river; defendant's fences are in curved lines; West might have accompanied Meehan when he measured the land, and he might have marked the boundaries in accordance with his wishes; previous to finding Meehan's documents, I considered the boundaries pointed out by West to be his; I was anxious to make my report as consistently as possible; previous to the documents being found, I asked the defendant to sell the whole of the land, but he seemed unwilling to enter into any negociation [sic]; he represented the fences as his boundaries, and I afterwards found that they exceeded Meehan's measurement; he told me the fence was up before the land was measured.

Cross examined by Mr. Wentworth - The black stump pointed out to me by defendant, as his boundary was some distance beyond the old fence; the south-eastern fence, I think runs very near the stump; there was a line of fence on the east side, but it did not extend to the tree; had that line of fence continued on to the road, I think it would have taken the line on which the new fence stands, very nearly; it is not unusual for a person to enclose only part of his ground; I asked the defendant where his boundary was; he said it ran upon a stump, and that that fence was not a boundary; the stump he pointed out was a stump which he said was on his Eastern boundary; Double Bay is at a considerable distance from Rushcutting Bay; had the defendant's application for land to Governor Macquarie been handed to me, I, in measuring it, would have made the South Head road a boundary; I would not now, and I think I should, even then, have looked about me more than has been done in those days, and saved the land about the shores of Port Jackson; in those days, of course, I should have gone by the Governor's orders, but I speak of what I should do, if left to my own discretion; I am not aware of any instance in which there is a grant of water without the lands through which it runs; I think what is called Double Bay in the memorial, is, in fact, Rushcutting Bay; the stream on which the mill is built runs into Rushcutting Bay; the marks in Meehan's survey book are very well defined; it is the custom in this country to survey in straight lines, except where there is a natural boundary; Meehan's survey is in curved lines, but I suppose defendant accompanied him in the measurement, and that he measured according to his wishes; the ground now claimed by defendant would not be sufficient to secure the sources of the stream, some of which come from beyond Mr. Busby's tunnel over the road; Meehan's sketch gives very defined limits for three of the sides and part of the fourth side of the land which it is admitted belongs to the defendant; leaving the swamp; I was anxious to learn the defendant's boundaries on all sides; it was a year afterwards that I got a slice in that quarter myself; I had no notion of getting any at the time I went to ascertain his boundary; I afterwards proposed to purchase a piece of him; there is no intervening ground between my land and the defendant's; I shall not, as a matter of course, get any more land, if defendant is ejected as my land is already measured out up to defendant's old fence; defendant has made a good deal of improvements but not on this particular land; Meehan's book was found in my office, and the map in the Colonial Secretary's Office; we are now in possession of nearly all the boundaries of located lands in the colony; it was about two year after I made the first survey, that defendant showed me the memorial to Governor Macquarie; I wrote to Mr. McLeay that defendant was encroaching after he showed it to me, but not till he had put up part of his fence; supposing Meehan's survey to be established, there will be about two acres vacant for location between Elizabeth Bay and defendant's farm, but it is very bad land; it is worth having, however, as it might be improved, and lying so near Sydney it has an intrinsic value; it is not worth £100 an acre; Mr. McLeay is not in the habit of buying land there, and I do not think he would give much for it.

Re-examined - I never considered defendant in possession of the land in dispute, but to save the case from coming into court, and to do away with any personal interest I might be supposed to have in it, I offered to purchase it of him; in memorials like this it is usual to designate the boundaries in a very general way, but they are by no means to be taken as an exact description of the land.

By the Jury - Had similar instructions to these been given to me in those days, I would have consulted the party himself, and ascertained where he wanted to erect his mill, and what water would be sufficient; had he pointed out the South Head road to me, and having these directions, and in the absence of any other document, I would have made it a boundary; the memoranda of Meehan's surveys are the only guides we have to establish boundaries to a great portion of land in the county of Cumberland; if the Governor granted a large portion of land, and that the surveyor measured a smaller through error, I should consider the Governor's grant would stand good, but still the measurement is what we go by.

By Mr. Wentworth - When I was taking a survey of defendant's land, he said something to me about his having a claim on the government for having allowed them to work quarries on his land.

Mr. Hoddle examined by the Attorney General - I belong to the Surveyor General's department; I was directed to verify the lines, as marked by Meehan, on defendant's ground; the description of the boundaries, as given to me by defendant, answered the description laid down in Meehan's field book, and the sketch which I had with me.

Cross-examined by Mr. Wentworth - There is a dam consiberably above the Southern boundary, as laid down by Meehan, which seemed to have been formed several years; there were also several cuts above the dam to let the water down; I cannot take it upon myself to say, whether there were any drains cut into the South Head road; I can't say how many rods the third mill dam is above Meehan's survey.

By the Jury - I accompanied some of the Jury, the other day, to look at the ground, and we observed the remains of a mill dam, and several cuts, a very considerable distance to the South Head road, above Meehan's boundary.

Mr. Joshua Thorp examined by Mr. Chambers - I belong to the department of public works in this Colony; I know the defendant's land, and also the lands adjoining it, upon which the government have been working stone quarries and brick-kilns for several years, without interruption, until last year.

Cross-examined by Mr. Wentworth - I was not employed by government when the quarries were first worked; I think that either Sir Thomas Brisbane or Major Ovens promised defendant a compensation for allowing them to be worked.

The evidence of William Leith, now residing at Van Diemen's Land, taken by a Commission issued out of the Supreme Court, on the application of defendant, was here read by the Clerk of the Court.  The deponent said, - I know Thomas West; I have known him since the year 1810; I arrived in the Colony of New South Wales in the month of August, 1809; I came out a free settler; in the month of April or May 1810 I applied to Governor Macquarie for a grant of land in New South Walas, for the purpose of erecting a corn-mill; I applied for a piece of ground on the north side of the South Head road, within 40 rods of the road, so as to take in all the springs there, called the Forked Springs, for the purpose of erecting a corn water-mill, but did not obtain the same in consequence of Thomas West having made a previous application.

Cross-examined - I applied to Governor Macquarie, then Governor of New South Wales, for a grant of land there, in the year 1810; the land I applied for had a stream of water running through it, suited to the building of a mill; I received an answer to my application, through the Secretary, Mr. John Thomas Campbell, dated 21st June, 1810, but such answer is not now in my possession; I believe, the paper now produced, and on which I have endorsed my name, is, to the best of my recollection, a copy of the answer I received; I selected a piece of ground containing about twenty acres, on the south side of the South Head road, within about forty rods of the road, so as take in all the springs there, called the Forked Springs, and particularly the head branches; I had fixed upon the same spot for erecting my mill that Mr. West afterwards erected his mill upon; I did not get possession of this land in consequence of Mr. West having previously applied for the same; when I found that Thomas West took the head and greater part of the springs, I relinquished all idea of erecting a mill.  Thomas West claimed some of the land I selected; but I do not know what proportion; he claimed an exclusive right to the water which was running in part of the land I selected; I do not know what distance defendant's land was from the South Head road; I do not recollect seeing any fence or boundary to the defendant's land; I do not know his southern boundary; I have never received any letter on the subject of this suit; I was called upon by Mr. Thomas Underwood on the 20th of April last; he asked me if I knew Mr. Thomas West; I told him I did, if it was the person who had built a mill on the Forked Springs, near the South Head road; he said it was; he then asked me if I recollected applying for the same piece of ground; I told him I had some recollection of it, and that I would, in the evening, search for all the papers I had on the subject; I afterwards delivered to him the original copy of the memorial I sent to Governor Macquarie, applying for the Forked Springs, Mr. Campbell's answer, being the original letter of which the paper writing now produced purports to be a copy, and a copy of my letter to Governor Macquarie, informing him that the springs I applied for were the same that Mr. West claimed.

The documents referred to by the Attorney-General in his opening, and a letter addressed to the Colonial Secretary, in answer to one calling upon the defendant to produce his title to the land in question, were also put in.

Mr. John Thompson examined - I found this map, among others, in the office of the Colonial Secretary, about four or five months ago; I also found this memorandum book in the office of the Surveyor-General about six months ago.

This was the case on the part of the crown.

Mr. Wentworth addressed the Jury, on behalf of the defendant. - You will have perceived, gentlemen, that the object of this action is to dock an old man of about one-half of the land of which he has been in possession for upwards of twenty-one years.  Gentlemen, this attempt has also been introduced to you with a most comfortable assertion for the Colony, for the Attorney General has declared that this defendant owes his right to retain even that portion of which he is willing to allow him the undisturbed possession, to the concession of the Crown - yes, gentlemen, the Crown officer has not hesitated to tell you this day that this possession of land for twenty one years and upwards, or for any other greater term - if through the neglect of this or of any other Government, the holder has not had a grant in due form, does not constitute any legal title in him; that he may he thrust out at a moments warning; or if he should be permitted to retain any portion of it, that such permission is a matter of favour from the Government.  Gentlemen, I trust that this is the last time we shall hear such doctrine laid down in this Court - I trust that this the last expiring struggle - the last occasion on which the Colonists of New South Wales will be in[s]ulted by being told that, because the Government has not done its duty, persons are for ever liable to be disturbed in the possession of their property.  Gentlemen, the same authority it has admitted, that, at the time this land was given to the defendant, it was a worthless gift, but that it has since increased in value - increased, too, by the industry of the defendant - and he is therefore to be ousted of it.  Such is the language and such the reasoning which we have heard this day applied to a British jury, to induce them to succumb to the Government, and committ an act for which, if they were capable of committing it, they would deserve, not only to be served in the same manner themselves the very next day after they had delivered their unhallowed verdict, but to be scouted out of the society of every honest man.  I do not, I am satisfied indulge in any unwarranted anticipation, when I say that this is the last time my learned friend (the Attorney General) here, if he will allow me to call him so, will ever lend his participation to a disgraceful action like this.  I do say, and I am happy to say it, that it is highly creditable to him that he had no hand in brining this action.  It was commenced when he was out of the Colony; but I am sure that it is the last occasion on which he will ever even lend himself to proceedings of such a nature, which have been so frequent in the bad times of the Colony, to the indignation and alarm of the people, and the scandal of the public justice of the country.  Gentlemen, if even there was a possession which ought to be held inviolate, it is a possession like that under which the defendant claims this day; because it is a notorious fact that three parts of the landholders in the Colony might in the same way, be ousted of their property, of which they may have had undisturbed possession for a series of years, if owing to the laches or intrigue of this or former governments they have not obtained grants.  I concede to my learned friend that the soil is vested in the Crown, and that, in England, the Crown could only alienate the Crown lands in a particular way.  But if it were necessary here to moot that point, I should say that those necessary and proper restrictions which are in force in an ancient kingdom, to restrain the Crown from alienating public property, are in no way applicable here; and that while every impediment should be thrown in the way to prevent the Crown lands being granted away to the vermin that flock around a Court - for none other receive grants in the present day - that every facility should be given to the granting of lands here, from equal motives of state policy; and that, instead of obstacles being placed in the way of grants in this Colony, the loosest chit, a mere verbal gift from a Governor, ought to be of equal validity with the most solemn deeds of grant in the mother country.  I trust, therefore, this is the last time that the Colony, or its Juries, will be insulted by being told that an individual after twenty-one years' possession, is entitled to forty acres of land, merely as a boon from the government, and that he has no legal title whatsoever.  Gentlemen, the turn which the case on the part of the Crown, has taken during the trial, is of the most extraordinary nature.  We have a document produced in evidence, the authenticity of which has not been disputed - namely, the memorial to General Macquarie, in which the boundaries of the land are clearly pointed out - and, on the back of it is endorsed the Governor's answer, in his own handwriting, authorising the defendant to take possession.  Gentlemen, place that document in competition with the Surveyor's field-book and the sketch, which were found only the other day among the old rubbish in the Surveyor General's and Colonial Secretary's offices, and I ask you whether, if ever there was a document at variance with that book, and that sketch, it is not that document?  I care not for Major Mitchel's interpretation.  A fig for such interpretations!  I ask you if it is credible that the applicant did not believe that the land for which he applied was to be bounded by the South Head road, and whether the Governor did not intend it to be so?  But, gentlemen, while we have this document religiously observed with respect to the boundary on one side, it is attempted to be violated in an equal degree on the other.  And here, gentlemen, let me call your attention to the simple terms of the memorial, and the plain man to whom it was addressed, who must have been well known to many of you, and ask you whether it is not obvious that the grant, as well as the intention of the giver, has been religiously observed?  It has been contended on the other side, that all the defendant wanted was the sources of the streams, and that to this extent only the grant from Governor Macquarie went.  But, I would ask, how was this object to be secured, unless the defendant were put in possession of the sources from which the water was derived?  The intention, it is said, was to grant the water, for the purposes of a mill, but not the land through which it flowed!  But, I would ask, where is the man in this Colony who ever heard of the water being granted without the land? or how the water could be secured to the defendant for the purposes for which it was intended, without the possession of the land through which it runs?  Why should the Surveyor, Meehan, have so far disregarded the defendant's memorial, as to have given him that part of the grant which was of the least, and withheld that of the most importance, namely, the command of the streams?  If it were so, what does it prove, but one of two things; either that the Surveyor took upon himself to disobey the commands of the Governor, or that he was drunk, and did not know what he was about?  Then with respect to the field survey.  Suppose you can believe this book, and the interpretation put upon it, it is clear that the observation, ``West does not want to go higher," has reference to the eastern boundary.  But, gentlemen, suppose you view that observation as a waiver, and that it meant no farther southward, at all events we have the fact that the defendant did go higher, and that he got hold of the land, of which he has now been in possession for twenty-one years, under the authority of that document which has been laid in evidence before you this day.  Gentlemen, I shall prove to you, that not only did the defendant go considerably higher up on the land, in digging dykes, and forming dams for his mill, but that this was done under the immediate eye of Governor Macquarie, who was constantly in the habit of riding to the mill, both before and after its completion - that both before and after the survey, he saw the defendant erect his mill-heads considerably above the survey; and that having given him an exclusive right to the water, the old man naturally thought that he had a right to the land also.  Even Major Mitchell, when questioned on that subject, does not deny the defendant's right to the stream.  What, then?  Is he to have the use of the water without the land?  It is conceded by the Attorney-General, that he has a right to the water, and it follows, as a consequence, that he is entitled to the land on each side of it, gentlemen, I shall prove to you, that Governor Macquarie saw all the operations carried on by the defendant, up to the day of his departure - and that Sir Thomas Brisbane, who, poor, good-natured man, was something of the same kidney, and not in the habit of directing trigonometrical surveys, taking away the lands of the colonists held in the good old way, or pulling down people's fences, so little doubted or disputed the right of the defendant to the land in question, that before he attempted to quarry there, he took the precaution to send his Secrerary, Major Ovens, who made a regular bargain with the defendant, that he should be remunerated for the use of his quarries with 1600 acres of land.  That, gentlemen, was the bargain entered into for the sufferance of an act which is now adduced as an admission of right by the Crown, and a commission of wrong by the defendant.  Gentlemen, what can be stronger than the testimony of Leith?  Is it not complete proof, coupled with the letter of Mr. Campbell, that the spot of land now claimed by the Crown, is the same for which he applied, and of which he did not contain possession because the defendant was already in possession of it?  Can there, I ask, be any thing more corroborative of the right of the defendant than his own memorial, aided by the evidence of Leith?  Gentlemen, as I have already stated, the stress of the case, on the other side, rests upon a document attempting to show, not that the defendant had no right to the land, but that he had refused it when it was offered to him.  But, even if I supposed that you could believe such a monstrous proposition, I shall be able to prove to you, at least that he repented of his refusal, and that he did occupy the land by using it, by cutting drains to the road, and in every other manner necessary for his purpose.  I admit that there have been struggles about this land for the last two or three years, and I believe also that the Government have been prudent enough not to quarry there any more.  My case, however, is wide of the maps - I care not for them, even if they were to produce fifty.  I rest upon that document that has been already given in evidence, and an uninterrupted possession since the year 1810.  Gentlemen, I am fortunate in this day addressing individuals who are well acquainted with the tenure by which a large proportion of the located lands in this colony is held, and who are therefore aware of the important question they are called upon to try.  I admit, as I before stated, that lands belonging to the Crown, in the mother country, cannot be alienated except in a particular way.  But I also contend, that this is a doctrine applicable only to recent grants; and, fortunately for this colony, there is a case in the books to show, that, although the statutes of limitation do not bind the Crown, the Judges have held an uninterrupted possession for a term of years, to imply a grant, for the purpose, and from a principle of quieting possession I have, in this case, thank God, been enabled to plead the general issue, under a particular Act of Parliament, so that your verdict will be final, and the defendant, in case of its being in his favour, cannot be subjected to after-motions, and to be ousted of his property, notwithstanding the solemn finding of the Jury, as in the case of the King against Cooper and Payne.  Gentlemen, your verdict will therefore be final, and I call upon you to apply the reasoning of the case I have just referred to, to the one you have to try.  If I prove that the defendant has been in possession of this land for twenty-one years, I trust, by your verdict, you will teach this Government (thank God, the lesson cannot be of service to them long!) as well as future Governments that they are not to trample on the rights of the people, because the Hononrable Alexander chooses to order a trigonometrical survey, and to dispute the claim of an humble individual to a portion of land, of which he has been in possession for a series of years, and in the improvement of which he has spent the greater part of his life and industry.  Gentlemen, I trust that this is the last action of the kind that will disgrace the Colony.  It is disreputable in every point of view - Admissions, by the defendant, are sought to be inferred from loose and casual conversations.  The Surveyor General admits that the defendant told him that those which he pointed out were not exactly his boundary lines, but is it possible that the defendant could, at that time, been aware of lhe [sic] business of his interrogator?  A strange mode of surveying is adopted; the old man was, perhaps, as usual, digging in his garden, or pruning his trees, when he sees a strange personage hovering about his land; and, because, when he is asked, he does not at once say that his boundary extends to the  road, he is to be ousted from his property.  Gentlemen, you, I am sure, will not suffer a possession of twenty-one years to be disturbed by supposed admissions, not arising from the words, but from the silence of the party.  Why did not the Surveyor look about and see the evidences of possession in the dams and dykes?  Where were his senses?  If he had asked West what those things were, would he not at once have said yes, that they were his handy-work?  I repeat, therefore, gentlemen, that this case has been disreputably brought before you; and that the attempt to support it by admission of the defendant fully exhibits the character of the proceeding.  The defendant's case rests upon twenty-one years' possession and a grant from Governor Macquarie.  He has occupied the land and used it under the administration of two, I may say three Governors - for it is only at the fag end of the third that this disgraceful attempt to deprive him of it has been made - he has produced to you an order from Governor Macquarie to take possession - he has bestowed his substance and his labour in the improvement of it  - and it is for you to say whether you will now deprive him of it, on account of the neglect of a surveyor, or his disregard of the Governor's order.  Gentlemen, I shall now proceed to call witnesses, and then leave the case in your hands, satisfied that your verdict must and will be for the defendant.

Previous to calling witnesses, the learned Counsel said he was anxious to go into the merits, but at the same time, he requested the learned Judge would take a note of an objection he had to make in point of law, namely that the action was not maintainable in the manner in which it was brought before the Court.  An intrusion was merely a trespass, quare clausam fregit; and it was laid down in Stamford's Prerogative and Comyn's Digest, that no proceeding could be taken unless Office first found for the King.

The learned Judge said he would minute the point.

The following witnesses were then called on the part of the defendant:-

H. C. Antill Esq. - I was Aide de Camp and Brigade Major to Governor Macquarie up to the time of his departure from the Colony; I know the defendant very well; I know that he took possession of a piece of land at the commencement of the South Head road, under the authority of the Governor in 1810; the writing on the back of this memorial is in the handwriting of General Macquarie; after defendant took possession of the land the Governor frequently paid him a visit in my company; he was in the habit of riding about the town; I was in company with the Governor when he went to defendant's; we saw his dams, drains, and other works on the land; I considered his land to extend from the South Head road to the water, on each side of the streams; the mill was considered a very meritorious undertaking by General Macquarie; land was of little value in those days, and that part of the land held by the defendant remained unoccupied only because no person applied for it; I remember a man named Leith, applying for a portion of the land between the mill and the road, and he was ordered off because he interfered with West; West's land extended beyond the mill, because it extended to the road.

Cross-examined by the Attorney General - I know that it was the intention of Governor Macquarie that defendant should have the land from the road down to the water, but what breath at each side of the stream I don't know; the anxiety of the Governor was to reserve the water to defendant; the land was of no value; I knew Mr. Meehan, and I was with him on defendant's land several times.  I know he was ordered to survey defendant's land, for the purpose of giving him a grant of it, after the mill was finished.

Re-examined - Seventy six acres of land was not much for the Governor to give to a man like the defendant; he would have given him some if he required it, as he considered him an honest hardworking man; I am satisfied the General intended to give defendant the land from the South Head road.

Hugh Collins - I am an old soldier; I belonged to the 73 and after that to the 102 regiment, I knew the defendant very well, and worked for him many a day; in 1812, I cut several drains for him, right up to the South Head road, to assist in conveying the water of the springs to the mill-dams; at this time there were two dams, one at a great distance from the other.

Cross-examined - I did nothing with the land but cut drains in it up to the South Head road; I did not cultivate or fence it in.

By the Jury - I cant say whether it was on defendant's grant I cut the drains, but I suppose he would not have done so if he had not authority; I am 87 years of age.

By the Court - I got a grant of 100 acres from Sir Thomas Brisbane, when he was going away.

William Downess - I was overseer of a quarry in the time of Sir Thomas Brisbane; about 9 years ago I opened a quarry on Mr. West's ground, for stone to build the new gaol; I was sent by Major Ovens to look out for a quarry, and I pointed out one on Mr. West's land, which Major Ovens came to look at, and having approved of it, he promised, in my presence, that Mr. West should be allowed a recompence for suffering it to be opened.

Mr. William Hutchinson - I was not present at any time when a conversation occurred between Major Ovens and the defendant; I went by desire of Major Ovens, to ask him to allow the quarry to be opened to build the new gaol; I know defendant was to have had some remuneration from the Government; the quarry was opened both inside and outside defendant's fence.

Cross-examined - I did not consider the fence was defendant's boundary; I considered it only part of his land fenced in; I always considered his land to extend to the South Head road; I always understood so from common report; that part of the South Head road now adjoining defendant's ground has been in existence for 16 or 17 years.

The defendant closed his case here.

Mr. Therry replied to evidence.

The learned Judge charged the Jury, who retired, and after some time returned into Court with a special verdict that the defendant was entitled to his boundary to the South Head road, but that he had intruded on a piece of land, near the new gaol, on the western side, which they marked by drawing a line on the map, but could not state how many acres.

After some argument between the Counsel on both sides, the Court told the Jury they must retire and find some quantity of land on which they might be of opinion the defendant had intruded, or otherwise return a general verdict.

The Jury said it was impossible for them to find, from the map; whether the defendant had intruded on one acre or on ten.  They then retired, and shortly after returned into Court with a verdict for thedefendant.

Counsel for the Crown, the Attorney General, Mr. Therry and Mr. D. Chambers; for the defendant, Mr. Wentworth.

Notes

[1 ] See also R. v. West, 1832; and see Australian, 14 October 1831, commenting: "Happily, this time, to the credit of a Jury, the sharks are outwitted!!"

See Sydney Herald, 21 November 1831: the three judges in Banco "without granting a veniere de nova, strongly recommended that it should be settled by adjustment between the parties out of Court."  See, too, Australian, 18 and 25 March, 25 November 1831; and Brown v. Alexander, 1828.

Published by the Division of Law, Macquarie University