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

Munn v Bettington [1832] NSWSupC 80

trespass on the case - water, rights to - land law, title, proof of - Crown grants

Supreme Court of New South Wales

Dowling J., 20 October 1832

Source: Sydney Herald, 25 October 1832[1 ]

Saturday - Before Judge Dowling, and the following Special Jury: - G. Bunn (Foreman) Gardner, Kemmiss, Verge, Acres, Spark, Coghill, Johnstone, Shelly, Betts, Clements, and Scarvell, Esquires.

Munn v. Bettington.[2 ] - This was an action of trespass on the case to recover a compensation in damages for defendant depriving plaintiff of the use, benefit, and enjoyment of certain deep water in Cockle Bay, on the north side of his premises, on the 1st September, 1831, and on other days, by which he had sustained great loss.  The damages were laid at £1000.  The defendant pleaded the general issue.

On the part of the plaintiff, it was proved that on the 10th August, 1824, he addressed a letter to Sir Thomas Brisbane, requesting permission, as His Excellency had promised him a town allotment, to occupy a water side allotment, situated at the point in Cockle Bay, at the same time sending a sketch with the letter, pointing out what he required, and stating that he wished the deep water on the north side for building ships of large dimensions.  To this application His Excellency gave his assent, and plaintiff took possession, and commenced making improvements.  The adjacent allotment was occupied by a person named Hazard, and he was present when Munn put down his fence, running in a south line from the upper end of the grant to the water, where it diverged off considerably to the S. W., by which he secured the deep water.  To this arrangement Hazard assented.  On the 15th October, 1825, defendant applied to Sir Thomas Brisbane for a grant of the land.  His Excellency endorsed the application, referring it to Mr. Oxley to report upon, when a grant would be made in conformity with the regulations, and on the 19th of the same month he received a letter from Mr. Lithgow, stating that a grant would be made accordingly.  Since that time, up to 1831, things went on quietly, when defendant purchased Hazard's grant, and commenced building a wharf, running his eastern boundary due south, thereby cutting of the deep water claimed by plaintiff, leaving merely the present frontage of shoal water, with a depth of mud from 7 to 10 feet, and on which it would be impossible to lay ways to launch large ships.  For this alleged encroachment the present action was now brought.

Plaintiff's case having been gone through, Mr. Wentworth moved for a nonsuit, on the grounds - 1st, it was set forth in the declaration that plaintiff had been deprived of the use, benefit, and enjoyment of deep water on the north side of his land, without setting out how he became possessed of that right, as required by law, and laid down in 2d Saunders Collitton v. Lithiby, and 4th East. Fenthman v. Smith; 2d, that the water was said to be on the north side of the allotment, whereas it was on the S. or S. W. side, even as shown by his own sketch.  This was fatal to the declaration, 2d East. 500; and lastly, there was no proof of plaintiff's having sustained any special damage; but proof of special damage was a necessary ingredient in this action, Rose and Wise, 4th Selwyn.

Judge Dowling replied, that as this was a case of great importance to both parties, he should leave it to the Jury.

The only evidence on behalf of defendant was a letter from the Colonial Secretary, in the name of the Governor, authorising defendant to continue on his south boundary line below high water mark, so as to enable him to erect a wharf, providing it did not interfere with the navigation.

The learned Judge put the case to the Jury, on four following points:- 1st, whether they were satisfied there was such a variance in the description of the scite [sic] of the water, as stated by Mr. Wentworth; if so, it was fatal; 2d, if they were not satisfied upon that point, then had plaintiff shown a right to the deep water described; 3d, whether they were satisfied the plaintiff had sustained any injury at all; 4th, if they were satisfied upon that point, to what extent.  There was also equally good authority shown on the part of defendant to build, as on the part of plaintiff.

The Assessors found a verdict for defendant.

 

Notes

[1 ] See also Australian, 26 October 1832.

[2 ] See also Bettington v. Munn, 1832; Martin v. Munn, 1833;  Munn v. BettingtonSydney Gazette, 24 October 1838; Australian, 25 October 1838.

Published by the Division of Law, Macquarie University