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

Parnell v Small [1832] NSWSupC 72

trespass on the case - nuisance, public - highway, obstruction of - Kissing Point

Supreme Court of New South Wales

Dowling J., 1 October 1832

Source: Sydney Gazette, 4 October 1832[1 ]


This was an action of trespass, a case to recover damages for stopping up a certain public highway, at Kissing-Point, leading from the farm of the plaintiff to the public highway to Parramatta, so that plantiff was prevented from going along the said highway, with his carts and other vehicles, &c. to the plaintiff's damage of £100.

The defendant pleaded the general issue.

John O'Donnell examined by Mr. Stephen - I am a general dealer and live at Parramatta; I know Kissing Point, and have known it for eleven or twelve years; I know the farms on which the plaintiff and defendant live; [looks at chart] I cannot say perfectly that this conveys to my mind an accurate idea of the different forms marked on it; plaintiff's farm is on Kissing Point; it is called Bayley's Farm, and there is but one public road leading from that farm to the high road to Parramatta; plaintiff can't get on the Parramatta road except by the road in question, unless by trespassing; there is a cross-road by which a person on foot might go, but not bring a cart; the road is over a hill and through a gully; it would be impossible to bring a cart that way.

Mr. Justice Dowling - It is really astonishing, in a case like this, that gentlemen have not condescended to give us the names of places, so as to inform our minds as to the real situation of the place in question.  Not one spoke spoken of by this witness can I find named in the chart laid before us.

Examination continued - I have often passed the road in question on foot, and seen others pass it; it would be impossible for plaintiff to take a cart that way since the fence was put up; I don't know who stopped the road up.

Cross-examined - There are no slip-rails in the place where the defendant is said to have stopped up the way; it is stopped up by a fence, which fills up a chasm between two other fences; I do not think there are any slip-rails, but I never tried;  I won't swear these are not slip-rails, but I have seen no persons pass that way since the fence was put up.

Mr. John Thomson - I am one of the surveyors in the Surveyor General's Department; I produce a map in which the lands of Kissing Point are laid down; Kissing Point is a point of land going into the Parramatta, and in the parish of Hunter's Hill; the small map corresponds exactly with the official map, as to the roads: they are merely marked as roads, not as public roads; they are occupation roads, for the purpose of leading from the farm to the public high-road, but they are still the property of the crown; I can't say that they are used as public roads; I should say that an individual would not have a right to enclose one of these roads; the parties living on these farms cannot move off them to go to the Parramatta Road without using the particular road marked here; this road forms a boundary to a farm marked as Bayley's farm, and is a road laid down as a road reserved by the Crown as a road leading from Bayley's farm to the Parramatta Road.

Examined - by Mr. Norton - There are two other lines of road laid out here which were laid out as roads of general communication between Parramatta and the punt from West to South east, and between Castle Hill and Parramatta River North to South; they were laid out since this chart was drawn; in laying out farms some time ago, there was a practice of giving in a surplus quantity to allow for roads; these two new lines of road in no way adopt those various avenues leading from farm to farm; they are intended as one general line of communication with the Parramatta Road; if the new public road be laid down correctly on the map, the occupier of Bayley's Farm could get out without using the narrow road along the farms.

Mr. Justice Dowling - Mr. Stephen, you must first make out that this road in question is a public highroad, or your action must fail.  The most Mr. Thompson has proved is that it is an occupation road; a way leading from farm to farm, it does not, therefore, follow that all mankind have a right to go there.  You must show that it was dedicated to the public.

Edmund Lockyer, Esq. - I live at the Field of Mars, near Kissing Point; I have traversed several of the old roads there; I see a road marked on this chart as the boundary of Bayley's farm; it runs between six farms; if the farms were formed, those persons living at the lower farms, could not get to the church without using this road, unless by trespassing on some of the other farms; that and other similar roads on the chart appear to me to have been originally mere imaginary lines, left as way of convenience between the different farms; in some of the places so marked it would be impossible to take a road; if I wanted to go to Mr. Farnell's, I must go that way, that is provided the farms were all fenced; if they were not I might go many ways.

By the Court - I know the spot where the fence in question was put up; the plaintiff must go along that road to get to Parramatta; I should think that road was intended for a highway, and not merely an occupation road for the use of the settlers in that neighbourhood; I have never known it used as a public-house.

William Bennett - I know plaintiff's farm as at Kissing Point, and also defendant's farm; I have often been at plaintiff's house from the Field of Mars, where I live within a mile of the church; I used to come first to the church; then I went down to Mr. Develin's yard. and I then turned to the left to a thoroughfare which took me down to Mr. Farnell's; they were no fences at each side of the road formerly, but I have seen some in some placed lately; I have also seen a fence across the road, but I passed that way on horseback, by taking the split-rails down; I dare say there was room enough for a dray to pass.

Joseph Hatton - I live at Kissing-point, on the farm adjoining the place where the road in question was stopped up; Weavers' land is opposite to my farm on the other side of the road; that was the road by which I have seen people go, and by which I have myself gone from the Church to plaintiff's house; defendant put up a fence across the road; he sent me notice that he was about to put up the fence, and that I would have a part of the expense to pay; the land abutting to the fence at the opposite side to mine, was then in the occupation of the defendant; there is another cross-road by which plaintiff might go from his house to the Church, on foot, but it would be impossible to take a vehicle that way, on account of the inequality of the ground, the stumps, and the miney soil; there is a slip-rail in the fence put up by the defendant, but I don't know that there is space left sufficient for a dray to pass through; I do not think it could; there are two fences across the road, within sixteen or seventeen rods apart; in one of those the slip-rail is, in the part that runs across the road, but in the other it is in the part of the fence abutting on defendant's land, but still on the line of road which people used to take before that; I know the original line of the Government-road, but the people never kept strictly to that line, but used to verge on either side as they found it convenient; they could not have kept to the strict line of the Government-road, it was so bad - one of the fences closes up the Government ground; there is a slip-rail in the part of that fence which abuts on defendant's land; there is also a slip-rail in the part which crosses the road, but not wide enough for a cart or dray to pass.

Cross-examined - There is another way by which the plaintiff might have gone, but, like all the roads about Kissing Point, it is very bad; I did not see defendant putting up the fence across the road; there is no regular fence across that road by which I have said the plaintiff might have gone.

Re-examined - I mean that there is no obstruction to pass the road.  I mean, except for the brush, the stumps, and the soft bottom.

William Ryan - I am a shepherd to the defendant; I know the farm occupied by him at Kissing Point; he lives on a thirty-acre farm, adjoining a fifteen-acre farm; there is a road through defendant's farm, to the water-side; there are roads every where about there, wherever you like to go; I know where Hatton lives; there is only one side line between his land and defendant's; I know nothing about tracts;  I always had a good road wherever I wished to go; I have been at Kissing Point eighteen years, and was never stopped any where I wished to go; I know there is a fence runs across the road from one of my master's farms to the other, with slip-rails in the middle; one John Cavenagh, was one of the men who put up that fence; he was then in defendant's employment, and is now.

Cross-examined - Plaintiff could go the church, or to Parramatta, without passing through this road on defendant's farm; there is a Government road measured out, joining Hatton and O'Donnell's farms.

Thomas Bray - I am a farmer, and live at Concord; I know plaintiff's house at Kissing Point; I know the way from his house to the church; I have gone it frequently for about four years; I landed at his wharf, and took a footpath which had been used for a great number of years, but it has been fenced up lately; when I found it stopped up, I referred to the chart, and saw it was one of the tracts laid down there; there is a fence across, with a moveable rail in the centre, but not space sufficient for a cart or gig to go through.

Cross-examined - I know there is a government road laid down, by which the plaintiff might go from his house to the church, but I understand it is very bad; I have no doubt a person might go that way on foot, by scrambling over very rough places; people were not in the habit of keeping to the government road at the place where the fence is put across; they were in the habit of going over defendant's land' he has fenced that part of the land, and people cannot go that way now; I do not think the new line of road that has been laid down, is practicable at present.

Richard Farrington - I reside at Parramatta; I went to the plaintiff's house from Parramatta, about four month's ago; I kept the high road till I got to Mr. Develin's, and asked him which was the best road to the plaintiff's house, and he desired a lad to let me through his yard, and directed me to go a little farther on and I would find another slip-rail, which I did, and got out of my gig to open, and passed through; after I passed that slip-rail, I passed along a line of road fenced in on each side, to plaintiff's house; I had never been that road before; on returning, I was shown another road, where there was no fence at all, but part of the way was very bad.

Cross-examined - I certainly passed through some farms on my return.

John O'Donnell, re-called - I know where the first slip-rail is at Devlin's; there is a road there leading down to defendant's house; that is not what is called the Government-road.

This was the plaintiff's case.

Mr. Norton said that no case had been made out to go to the assessors.  The plaintiff sought to recover damages for stopping up a certain public highway, being prevented from using it, and from letting his estate to advantage.  All the witnesses proved that there was a certain footpath, described as one that they had adopted in walking from the church to the plaintiff's house, but they all stated that it formed no part of a government way; but on the contrary.  It was also no proof that there was a line of road laid out; and although he admitted it was no proof that it was in a bad state, still to entitle the plaintiff to maintain this action, that fact ought to have been alleged in the declaration.  It ought to have been alleged that in consequence of the impossible state of the government road, the people about there was obliged to make use of this particular way, and that the defendant stopped it up.  Besides this there was no proof that the fence was either put up by the defendant, or by his orders.

The learned Judge said, as there was some evidence, he would prefer leaving the case to the assessors.

Mr. Norton then addressed the assessors on the part of the defendant, contending that no right of road whatsoever had been shown, but that, in fact, all the plaintiff's witnesses had not alone failed to make out his case, but had established a case for the defendant.  The learned gentleman then called the following witnesses:

Isaac Shepherd - I am a farmer, and reside at Kissing Point; I am well acquainted with the whole of that district; I have heard the witnesses to day describe the place said to be stopped up; it was a footpath, and not any of the government reserves or roadways; previously to the fencing of the country these wandering footways were general, and were merely made use of as means of communication between one farm and another; I have seen carts pass over the road in question, but before farms were fenced in it was the practice to take carts over the most eligible ways they could be taken; there is a reserve of road leading from plaintiff's house into the main road by the church; that road forms one of the boundaries of Hatton's farm; that line is laid down in the chart; the road in dispute is not laid down; that road from plaintiff's house, if put in proper order, would be equally convenient to the line in dispute; I should fence in such paths, more especially as government has marked out a line of road so convenient to the neighbourhood.

William Small - I have lived at Kissing Point for several years, and am frequently back and forward there now; I have known the road in question as long as I can recollect; it is not a government road; not at all; it never was former into a road; it was one of those ways irregularly formed in communicating with the several farms before they were fenced in; a general line of road has been lately formed; if all the ways that have been were opened on the defendant's farm, it would be little else than roads; there is a way leading from plaintiff's house to the public road, by going a little farther up.

This was the plaintiff's case.

Mr. Stephen replied to evidence.

His Honor, in summing up, told the assessors that there were three propositions for their consideration in this case; - namely, first, was this a public highway; secondly, was it stopped up by the defendant; and, thirdly, has the plaintiff sustained any special damage?  The plaintiff alleged in his declaration that the road in question was used for his own carts and carriages, not that it had been so used by others; and that use by the plaintiff alone, did not constitute it a public highway.  If they were satisfied that, although the public were originally trespassers, had acquiesced in its being used as a public highway, he would be bound by it.  But what evidence had they of that fact?  That was solely for their consideration.

The assessors found a verdict for the defendant.

Counsel for the plaintiff, Mr. Stephen; for the defendant, Mr. Norton.


Source: Proceedings of the Supreme Court, vol. 76, Archives Office of New South Wales, 2/3259[2 ]


Dowling J. summing up.

The plf declares for the obstruction of a public highway - i.e. a way for all the Kings subjects to go along the same with their carts, carriages, horses, cattle & so forth,  whereby he is prevented from going along the said public highway, & using the said public highway, as of right and necessity he ought to do.

Three propositions are necessary to be made out to support this declaration.

First, that the way alleged to have been obstructed is legally speaking a public highway for carts and carriages. - Proof that this is a mere occupation road - a way of necessity - or a foot way is not sufficient.

Second, that the deft has obstructed the way; &

Third, there must be some proof that the Plf has attempted to use the way and has been obstructed by the deft.

1. If you should be satisfied upon the evidence, that this is only an occupation way, or a way of necessity then the Plf has mistaken his remedy for he declares for a public highway, i.e. for all mankind.  If you can collect from the evidence that this way has been used by the public or dedicated by the deft to the public without limitation, then the Plf, (if you are satisfied upon the other points) will be entitled to recover.  If the crown has marked out a way for the public & the public have tho.t proper to deviate & go upon the Defts land, that will not give the public a right of way over the land deviated upon, unless the Deft has dedicated it to the public, or has so long acquiesced in the use of it by the public, as that a dedication may be presumed then the resumption of the land by the Deft is not lawful.  Rugby Charity v Merewether.  - note the evidence upon this point

2d.  there is reasonable evidence that the deft had put up the crop fences complained of

3d. then what proof is there that the Plf has sustained any damage i.e. that he has so attempted to exercise the right and been hindered and prevented by the Deft?  Although slight injury is all that is requisite to sustain the action yet some proof is necessary.



[1 ] See also Sydney Herald, 4 October 1832; Australian, 5 October 1832.

[2 ] The trial notes are from pages 1 to 41, and this page is pinned to p. 41.

Published by the Division of Law, Macquarie University