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

Pike v Bates [1832] NSWSupC 35

land law, title, prescriptive right - right of way by prescription - reception of English law, footpaths

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 June 1832

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 72, Archives Office of New South Wales, 2/3255

 

[p. 68]Trespass quare clausam fregit.  Pleas. 1. Not Guilty.  2. A right of way by prescription over the locus in quo.  3. A right of way over the locus in quo of necessity.  Issues thereon.  At the trial before Stephen J. last term the plf had a verdict for One Shilling.

In this case it was conceded as an indisputable point that  prescriptive right of way [p. 69] could not be pleaded in the British Colonies - the Statute of Richard 2. according to the resolutions of the Lord's of the Council, not applying in the Colonies.

The other parts of the case, negatived the defts plea of a right of way of necessity.  He had made a short cut over the Plf's farm to get at his own, there being a more circuitous way for him by another road.

Rule for a new trial refused.

Published by the Division of Law, Macquarie University