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

R v West [1832] NSWSupC 79

trespass to land - intrusion on crown land - land law, title, proof of - land law, Crown grant - specific performance - water, right to - adverse possession, Crown land - Woolloomooloo - Vaucluse - Rushcutters Bay

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 17 and 18 October 1832

Source: Sydney Herald, 18 October 1832[1 ]

Wednesday. - Trial at Bar. - The three Judges having taken their seats, the following Special Jury was put in the box and sworn.

David Allen, foreman, Frederick Michael Stokes, George Druit, Nathaniel Norton, Thomas Barker, John Dixon, Henry Smith, John Foster Church, William Shelly, Robert Johnstone, John  Scougall, and William Wallace, Esquires.

The King v. West. - This was an action of intrusion to recover possession of 50 acres of land on the South Head-road.

The defendant pleaded the general issue, non-intrusive.

Mr. Therry opened the pleadings. This was a writ of intrusion filed by His Majesty's Attorney General, to recover 50 acres of land, situated on the South Head-road, belonging to the Crown.  The information stated the property had been intruded upon defendant.

The Attorney-General addressed the Court.  This was an action to recover possession of 50 acres of land that defendant had intruded upon; the case had been tried before, but he would not call their attention to that; but the Jury on that case being under some misapprehension, he wished the case to have every consideration, and therefore the present case had been appointed to be tried at bar.  On the former occasion his learned friend on the other side had made harsh remarks on the part of the crown, for bringing the case before the Court, but mildly towards himself, as the instrument of the crown, but he forgot that every person's property should be inviolate, and it was as much incumbent on the part of the Government of this Colony to protect the public property, as to protect the property of private individuals.

On the present occasion they only claimed a portion of the land, and not all his property; they made no objection to what he was entitled to, but defendant claimed 77 acres of land, where he was only entitled to 43, the right to which he obtained under a Memorial to Governor Macquarie in 1810, and on the Governor's Reply.  But this Memorial was so indefinite as to the quantity of land required, and the reply equally indefinite as to the terms on which it was granted, that should two individuals come before the Court, one calling upon the other to comply with similar terms, he was sure their Honors would decide that the specific performance could not be executed.

In 1810, Mr. West wishing to erect a mill near Sydney, memorialised Governor Macquarie for a piece of land, situated one mile and a half beyond Sydney, near the South Head-road, the springs in which ran into Double Bay.  It was, therefore, plain he did not know what he was applying for, as the streams ran into Rushcutting Bay.  The Memorial requested permission to erect a water mill, and endorsed on the back, is the Governor's permission, and the exclusive right given to the stream of water alluded to, and that he would receive a lease of rent as soon as the mill was finished; but whether it was to be a grant in fee simple, or a lease for years, or for what term is perfectly undefined.  About the same time a gentleman named Lee, wishing to erect a mill, applied for 20 acres adjacent, which was granted, on the express condition that he should not interefere with West's water, that being West's object, and not the land.  A grant of a water course was perfectly distinct from a grant of land, it did not convey the adjacent land, and so anxiously preserved was it, that persons entitled to it might trespass on the land of a third person to preserve the course.  West built the mill, but either from want of water, or other cause, it was a failure; Governor Macquarie used to go constantly to observe the progress, anxious to forward it, and secure the property to him.  Up to 1816 matters were as they originally stood when Meehan, the Assistant Surveyor, went over the ground, and a document would be produced showing the lines marking out the land said to contain 40 acres, but by a fresh survey it was found to contain 43 acres, but they made no objection to his retaining the difference of the two surveys.  On the survey West was present, as will be found by a notabene in Meehan's survey to the following effect: ``West does not wish to go higher in this point."  At a subsequent period Mr. Dixon was sent to survey the land, & after he had gone over it, Mr. West told the Surveyor General he did not go over the lines of Meehan, how could he have told this if he had not attended the first survey?  Further, in his own letter to the Colonial Secretary, when called upon the explain the meaning of the intrusion, he replied, that the ground had been surveyed by Meehan, and he held it under the letter of Macquarie.  Independent of these corroborative circumstances, that he was cognisant of Meehan's survey, he should put in public documents from public offices in the Colony, and public charts from the Surveyor General's department, and coming from regular offices, it was evidence as to the survey, boundaries, and fences of land, without reference to any extraneous subject.  After the survey the papers of the office got into confusion, and at the time the present Solicitor General came into office, the documents were not easily got at, and it so happened, that Meehan's survey was not known until West applied to the Surveyor General.  When Major Mitchell was appointed to survey the land, he applied to West for his boundaries, and on that occasion defendant pointed out to him certain lines as them, and as such they were taken, and were found to contain 57 acres, being 15 more than Meehan's lines gave him, this would have been allowed, nothing being known at the time of Meehan's survey.  He should prove that the land from Meehan's line up to the South Head-road was in the occupation of the crown, or persons permitted by them to occupy it.  Those Gentlemen of the Jury who yesterday inspected the ground, were aware how correct every thing was laid down in Meehan's survey, and on reference to Meehan's survey, it will be found that the 57 acres were 17 more than he was entitled to, independent of that, he wished to take in up to the South Head-road.  On this intrusion, the crown thought it necessary to proceed against him, and it would be their province to decide what he was entitled to.  There are quarries on part of the ground, fenced in by defendant, and in ignorance Sir Thomas Brisbane applied to him to work on what he considered his ground, but that had nothing to do with the case here.

On the late trial all parties were in total ignorance, except the learned gentleman on the other side, that the present South Head-road was not the one that existed at the time of Meehan's survey, but now he would prove two distinct roads, and let them take their bearings from which they pleased, they could not fence up to the South Head-road.

The defendant had pleaded the general issue under the 21st James, but they must see what the Act of Parliament required before they could find a verdict for defendant; 1st. that the King was out of possession 20 years, and that defendant had been in possession during the whole time, not only of the 40 acres, but every other acre during these 20 years, and that the crown did not enjoy the profits of any portion of that ground.  He was sure they would give the case every consideration to put an end to this unpleasant case between the crown and the subject.

Thomas Meehan proved the handwriting of his father, the Assistant Surveyor General, in a field book, and a small sketch purporting to be the survey and draft of West's land, found after Meehan's death among his private papers, and handed over to the executors.

T. L. Mitchell, Esq. Surveyor General, deposed, that in 1828 he surveyed Woolloomoolloo Hill.  He asked West as to his boundaries, who equivocated, but he understood him to say that the then fence was the boundary, and as such he laid it down.  His land laid between the house and the South Head-road, but did not come up to the latter, within ten chains.  He did not then claim that piece of land, but had since fenced it in, and enclosed 57 acres.  One of the Surveyors measured the land, and he pointed out to him Meehan's line, which be said went over some rocks to square the measurement, but he had modified it himself.  No part of the fence then came up to the Woolloomoollo-road.  Part of the fence now runs up to the South Head and Woolloomoollo-roads.  West pointed out a stump at the corner of his land, from which he said Meehan commenced the survey.  At that time he could not find any record of Meehan's survey, and therefore he was willing to adopt those boundaries.  Some years after, West had a conversation with him respecting the boundaries.  He said he was about to fence in his land.  Witness reminded him of the boundaries he had pointed out long before.  He said he had since found a paper, and showed an old Memorial to Governor Macquarie, applying for a piece of land on the South Head-road, and signed on the back by Governor Macquarie granting the petition.  He said on the strength of the paper he should fence up to the South Head-road, and he did so.  Witness cautioned him, and wrote to the Colonial Secretary, acquainting him with the encroachment about to be made.  Shortly after West came to witness, and said he had been to the Colonial Secretary, who sent him to make matters clear, He asked if witness was aware of the actual quantity of land he was entitled to, who replied no.  Witness appointed a day for him to come, and in the mean time fell in with the field book of defendant's land by Meehan, in the Surveyor's Office.  They were as authentic as any other documents in the Surveyor's Office, and the maps of the Colony were made from them.  They were written in the field by the Surveyor.  The plotting of the land was transmitted from the Colonial Secretary's Office.  Witness once applied to West to purchase some of his land, but no portion of that recently enclosed.

Cross-examined by Mr. Wentworth. - The dotted lines on the chart are those mentioned in the sketch book.  At the time he asked West about the boundaries, can't say that he knew he was Surveyor General.  Had a sextant with him, but can't say whether or not it was in his pocket.  If the old fence was carried in a straight line, it would run diagonally through the new gaol.  I have seen the appearance of dams on the land said to be encroached upon.  By the Memorial I should have made the South Head-road one of the boundaries, but not without further instructions.  Never knew an instance in this Colony of water being granted without the land.  Once wished to purchase the whole of West's land, and subsequently a bill that was a distinguishing feature in my scenery.  West's land is not bounded by the South Head road, according to Meehan's survey, except a diagonal piece.  Meehan's survey excludes the source of the stream.

Mr. John Thompson, belonging to the Surveyor General's Office, deposed that he found Meehand's field book among other documents in a room called the map room, in the Surveyor General's Office.  It was amongst other public documents.  When Surveyors are sent out to take surveys, they do not immediately return the field books into the office, except when they leave a district.  Should consider those documents sufficient to make maps from.  The sketch or plotting was found in the Colonial Secretary's Office.

Cross-examined by Dr. Wardell. - The field book was found in the office after West began to fence.  Don't know how long it had been there, but it must have been a considerable time. - When crown lands are alienated, it is mentioned on a map.  The plotting finding its way to the Colonial Secretary's Office, it could not be available to the Surveyor's Office.  The plot does not show the survey to be up to the South Head-road.  The old South Head-road passes through West's land, and therefore cannot be bounded by it.

Mr. Robert Dixon proved the surveying of West's land, under the direction of Major Mitchell, in 1830, according to the survey made by Meehan, and that his survey agreed with Meehan.  West was present part of the time.  A fence was in progress.  In some of the old charts the variation of the compass was 8. e., and some taken since are 8½s, and even 9.  This variation might have made a difference in the bearings of the survey, but not the quantity.  A letter from West to the Colonial Secretary was put in, and admitted.  It stated that the land was given him, called Barkam Glen, as a remuneration for his erecting the first water mill in the Colony.

Samuel Tree proved that he arrived in 1812; knew where Mr. West lived; had seen the new fence, but it did not come up to where he used to work - he occupied a piece of land between the two fences by permission of Governor Macquarie, the latter end of 1821.  West never made any claim to the land or interfered.

Mr. James Underwood proved that he resided on the South Head-road, and had been 41 years in the Colony to-morrow, did not know West's boundaries; West built his mill shortly after the arrival of Governor Macquarie; he cut about three quarters of a mile towards my place for water, nature stopped them up; if West had a right to the water he would have kept them open; there were two South Head roads; i.e. in 1811, a subscription was raised to make the upper or new road, the lower one is a foot path called a maroo, and went down the water side.

Dr. Harris, J. P., deposed that he had been in the Colony 42 years; in the year 1803, he made a road to South Head, for £100, and lost £80 by the job, the Government only giving him £20 - it was to be 15 feet wide, and the trees felled and stumped, and it went through the present new jail - there was also a Maroo but he knew of none other.

Cross Examined - I am positive my road was to the north of the present one; at Belle Vue it comes within a few yards of my old road - I have been the road but twice since 1814 - I know nothing of West's boundary.

Mr. James Chisholm. - Had been in the Colony nearly 42 years - Governor Macquarie came in 1810; knew the South Head Road - the first one went through Woolloomoolloo, till a 100 acres was given to Mr. Palmer, and it was stopped; they then went further up, almost the same road as now; through the fail walls, and down, passing West's house, leaving it on the right and over the stepping-stones - the present road is more to the southward than Dr. Harris's road.

At 5 o'clock the Court adjourned, till this day at 10 o'clock.



Source: Sydney Herald, 22 October 1832


Thursday.[2 ] - At ten o'clock this morning the Court resumed its sittings.  Continuation of the case the King v. West.

John Hazard. - I was first in the 102d regt., and then volunteered into the 73d; I have been in the Colony 40 years; I was in the Country in 1809; the present South Head-road was made by the 73d; before that we went by Rush-cutting Bay, and over some stepping stones; I never lived at South Head, but know the road from shooting on it.

William Tiernan. - I have been 42 years in the Country; in 1810 I used to go to South Head through Woolloomoollo and Rush-cutting Bay, over stepping stones; West's ground was on the right; there was no other road then; afterwards Dr. Harris made a road near the present one.

Cross-examined. - The sea flowed over the stepping stones; they are in the creek, a hundred yards from the beach.

Henry Hughes. - I arrived in the Colony in 1791; I was here when Governor Macquarie arrived; at that time there was a road to South Head through Woolloomoollo, but Mr. Palmer obtaining a grant, it was stopped up; they then had to go round, and over where the new gaol now stand; it went down through West's land by the side of a water course; it was to the left of the present road, and was made by Captain Taylor, under the direction of Dr. Harris, for which he was to receive 40 gallons of rum; the road by the waterside was most frequented, and called when Governor Macquarie came here, the South Head-road.

Cross-examined. - A horse or carriage could not go the foot path; I lived 6 years at South Head; the provisions generally came by boat.

This closed the case on the part of the crown.

Dr. Wardell replied. - The Solicitor General had told the Court that he had closed his case here, and he (Dr. W.) might safely close his case to; he might without argument or detail rely on the evidence given on the part of the crown, and further he might take the detail of the Attorney General himself to ensure him a verdict.  Now what was the amount of the details on the part of the crown.  He would begin with the admissions of the Attorney General, that the defendant was rightfully in possession of some portion of land; he also admits that he is in possession under a genuine document, which he does not mean to dispute.

Solictor General. - Only as far as it goes.

Dr. Wardell. - It goes far enough; it goes to the extent of West's boundaries.

Dr. W. in continuation. - This was a good deed, as good as parchment and seal.  The Attorney General had stated that it was very vague, he could make nothing it, that there had been an encroachment on boundaries not marked out, but the fact is, they dispute the only one marked out, the South Head-road.  He goes on to tell you that after defendant was rightfully in possession of his land, he put up fences, and built a mill under the terms of the deed, and the conditions on which he received the land; that after six years the Governor orders somebody to measure West's land, and he tells you, but mind, he only tells you, that he marked out the boundaries, and that defendant saw them marked out.  He also tells you that Meehan seeing by the deed the extent of the land up to the South Head-road, seeing that defendant required a supply of water, and that it was so scanty, and that he had a greater distance to go for it than was contemplated, yet he tells you in the face of all this that defendant voluntarily stated to Meehan that he did not want the spring, he only required to be bounded by the stumps of trees, excluding the springs and several streams, limiting himself thereby to the use of one.  What, after he had built his mill, to surrender the land most beneficial to him.- Now taking the statement of the Attorney General, what proof is there, in fact, or in law of a surrender.  I can tell him that if assent was given, it could not do away or unconfirm the deed.  If there was a surrender, it must be a surrender, and if an abandonment, it must be a legal abandonment.  I am now arguing on the statement of the Attorney General.  They were according to that, to presume, that defendant applied for the land, and finding the necessity of it, abandoned it.  Why was there not some note of this?  Why was he not asked to give up the deed?  On the statement of the Attorney General the case fails here.  There was nothing in that statement showing any proof of surrender.  The learned gentleman supplies evidence on the part of the crown to make good defendant's title, but he tells you the deed does not describe the boundaries.  Most potent objection, and with a consistency to be admired. -  He wishes to destroy the only land mark of the man as to his possession.  He gives first a statement of four lines as boundaries, the sea, the fences, and the South Head-road.  Then I say, out of his own case, mine is made out.  But, gentlemen, I shall prove undisturbed possession for 20 years, and a right to that possession.  What more can be required?  Supposing, gentlemen, any of you had a deed, making the Liverpool-road as the boundary of 100 acres, and that 20 years after the Government should have doubts, and because you could not point out every boundary or fence, that you should be curtailed of fifty acres, and the only satisfactory boundary shall fail you?  That case is this case, supported by the statements of the Attorney General.  This is a deed in every sense of the word, and many deeds are as vague of this, of which many of you, no doubt, have had experience.  Many grants were not more specific, or of greater weight than that.  The defendant takes possession, and connecting that with the deed, the title is complete.  So much for the statements of the Attorney General.  He had no occasion to go further into this case, because the statements supported his case.  But how was this case supported by evidence.   The only point on which they could by possibility have made out part of the case, or have expected a favorable result had failed.  He was convinced their Honors would support his law, and no Act had been committed on the part of the defendant, which could divest him of his land, agreeably with the tenor of that deed, or deprive him of his right. - Even if he accompanied Meehan, there was nothing in that, but he would prove that he did not; it was an ex-parte act without the knowledge or assent of the defendant.  Then how stands the case?  Why, the point the Crown rests upon has no existence.  Then the survey; how was it supported?  The Attorney General tells you that West informed Major Mitchell that Dixon did not go over Meehan's survey.  Dixon swears that he did.  This proves West knew not of Meehan's survey; it could not be his, as it did not go up to the South Head-road.  How is the case supported by evidence?  A gentleman is put in the box, who tells you that a conversation he had a long time ago with defendant, he could not detail or tell in substance.  What faith then can be placed on the evidence of the party, after this candid avowal?  Yet he afterwards enters into a detail as to certain admissions, but you cannot depend on that as faithful evidence.  As the case is at present presented to you, the defendant is entitled to a verdict; but when you hear defendant's case, it will not leave a doubt on any one's mind.  Here is a contest for a paltry portion of land between the Crown and a subject, and a meritorious subject too, who, at the time, was bestowing a benefit on the public, when all the people in the Country would not have given a straw for all the land.  I am surprised, gentlemen, that you should have been brought here on a second day, on a second trial, after the evidence of Dr. Harris and Mr. Chisholm.  Gentlemen, if Governor Macquarie existed, and could cast his eye over this day's proceedings, and see what had resulted from his own acts, and how different matters were transacted in 1810 to what they are in 1832, it would disturb his rest in the grave.  Yet, gentlemen, for a few feet of land is all this array, all this trial at bar, and you, gentlemen, are brought into this Court to try the right of the Crown to a rod of land.  Ought it to have led to this paltry, this miserable result?  The question is, shall a portion of land be taken from one subject, to be distributed between three or four, for the protection of you and the public.

The following witnesses were then called on defendant's behalf:-

H. C. Antill. - I was on Governor Macquarie's staff from 1810 to 1821; I know defendant; I know he made application to Governor Macquarie for land in Barkum Glen, (memorial put in,) that is Macquarie's hand writing; I know West built a mill at Barkum Glen; the Governor used to inspect it almost daily; West made dams and reservoirs for water far above the mill; the Governor saw them; the top one was no great distance from the road; West's land extended from Rush-cutter's Bay to South Head-road, and a strip of land above the springs; I never knew of a grant of a water course without the land on one side; I think the Governor must have been aware of the extent of West's land; he was often over the ground; a man named Leith was in possession of a piece of land between West's mill and the South Head-road; he wished to build a mill; he was ordered to relinquish it; I was not present when the Governor ordered him off; I know the Governor did order him off; the undertaking West was engaged in was considered of importance by the Governor; 70 or 80 acres of land in that direction was at that time no value; people applied for better land than that; at that time a person might have had all the land between Sydney and South Head; a man taking land there would have been laughed at from one end of the Colony to the other (memorial put in;) I have no recollection of any South Head-road; the road was made shortly after our arrival; I knew no land near it; I do not remember the road marked out by Dr. Harris; I have a faint recollection of the officers clubbing together to make a road, but that is all.

Cross-examined. - I came with Governor Macquarie in 1810, and was Aid-de-Camp till 1812, and was on the staff till 1821; West commenced his mill shortly after our arrival; we used to ride to see the building; I do not remember then any road to South Head; the Governor was much interested in West's undertaking; West's was the first water mill in the Colony; there was a strip of land given on each side the water; I suppose he would not make dams on land not belonging to him; that is my reason for supposing so; I would not then have taken the land as a present, unless I could have looked into futurity; it was of no value; the mill I think was completed in four or five years; he was a poor man, and made slow progress in the work; I think I have seen the stepping stones at the creek; Leith applied to build a water mill; the stream was not sufficient to turn two mills; West was considered to have the exclusive right to the water; I knew Meehan; I can't say that he had any directions to survey the land; I have been on the ground with him, but never saw him measure it; no grants were given away there at the time, except Woolloomoolloo.

By a Juror. - Looking at the memorial, I have no doubt the land West occupies is the land there mentioned; at the time West applied for the land the present road was not made; I have no recollection of the road.

Re-examined. - I think at the time West's land was measured the present road was made; there must have been a road, or it would not have been mentioned in the memorial.

By a Juror. - I don't suppose Leith would have been ordered off if the land had not belonged to West; it was considered West's; I cannot say West erected dams on the land, from which Leith was ordered off.  [The evidence of Leith de bene esse was here read.  He stated that in 1810 he applied for some land above West's, in which the forked springs took their rise, for the purpose of erecting a mill, but was refused by the Governor, as he had promised it to West.  The land he applied for was about 20 yards from the road.]

Hugh Collins. - I landed here in 1804 as a veteran; I know West; I was employed 20 years ago in West's service opening drains from a main dam to the South Head-road; the head of the drain was a yard or two from the road, which was higher then; the old road was to the right of the present one over the sand hill; I assisted to build three dams for West.

Cross-examined. -  The old road ran to the south of the present one; I never knew one running to the north; I never knew a road over the stepping stones.

Mr. R. S. Walker. - I have been in the Colony off and on 26 years; in 1808 I lived at Vaucluse; there was a good road to the south of the present one, a considerable distance to the south of West's present fence; the road to the south of the present one was always called the South Head-road; no one ever thought of calling the Maroo the South Head-road; it was impassable except at low water.

R. Campbell, Esq. - I have been 26 years in this Colony; in 1811 I was Treasurer to the new South Head-road, that is the only line of road I know of; before it was made there was a path by Rush-cutters Bay; the first mile stone to the second was not altered by the new road, but there it branched off.

Cross-examined.  - I knew a foot path that ran along the beach; I tried to go that way on horse back, but could not.

Mr. S. Lord. - I have been 42 years in the Colony; I have been acquainted with the South Head-road since there was one; I know the present line of road; in 1809 it came up to the upright sunk by Mr. Busby, as it does now, and then went off to the right over the sand hill; the whole line of road was south of West's present boundary; the traces of the old road are still visible.

Cross-examined. - The old road went over the hill, and came into the present road near Mr. Cooper's house.

By a Juror. - The Governor refused Leith, because he had promised West the land and water.

Mr. S. Terry corroborated Mr. Lord in every particular respecting the road.

Captain Thompson. - I first came to this Colony in 1806; I was here in 1810; I remember the South Head-road at that date; at this end the old road was to the south of West's boundaries.

Cross-examined. - I have heard of a foot path along the beach, but I never went that way; that was the thoroughfare for foot passengers.

This closed the evidence on the part of defendant.

Mr. Wentworth contended that this being a trial at bar, he was entitled to reply on his own evidence, but was overruled by the Court.

The Solicitor General having replied at great length, the Chief Justice summed up.

This was not a case between party and party, but between the public and an individual.  A party having possession, it was a legal possession against another party, unless he can prevail on the strength of his own title, and not on the weakness of that of the party in possession.  The plea to the present information was not guilty under the statute of James, but the points required to be established under that statute, and to support the plea, was twenty years uninterrupted possession of the locus in quo, before the filing of the information in this Court, if not, the Crown must prevail, and it was necessary to prove strictly such possession.  As to the document which had been put in, it had been contended that it was equivalent to a grant from the Crown; but this was not law, the Crown lands could only be parted with by record, therefore a loose piece of paper like this, a party could not stand upon.  In law it was not a grant, a deed, or equivalent to a grant.  It might be put in evidence for as much as it was worth, that the possession was taken according to the terms of it; thus far, and no further.  It came within the judicial knowledge of the Court, that the King delegated his prerogative to the Governor of the Colony, to dispose of waste lands, but without this he could not alienate one inch.  Appointing a Governor did not necessarily authorise the grants of lands.  He drives this expressly from a grant in his own commission.  A grant must go through the necessary offices, and the seal of the Colony being appended and received by the party, then only is the Crown precluded against its own right.  But no one of these things being complied with in reference to the paper produced, the Crown was not bound by it as by a grant.  He and his learned colleagues agreed as to the way in which the case should be left to the Jury, and this single question was the only one for their consideration, is the fact of possession for 20 years set up by defendant, fully proved, when did he take possession, and to what extent.

At 6 o'clock the Jury retired to consider their verdict and at seven came into Court, and informed their Honors there was no chance of their agreeing; they were accordingly locked up till 9 o'clock, when on coming into Court, they found a verdict for defendant, finding that he had been in uninterrupted possession of some portion of the land for upwards of 20 years, but that he had trespassed on a certain portion.  The Chief Justice informed them that if they found the defendant had trespassed at all, they must find a verdict for the Crown.  The question was first, had defendant trespassed; and secondly, to what extent.  The Jury, after a short absence, found a verdict for the Crown, and that defendant had trespassed on a portion of land within the lines A. B. and F. as described in the chart annexed, giving however to defendant for his southern boundary, the South Head-road.  The piece trespassed upon is about five acres.[3 ]



[1 ] The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 77, Archives Office of New South Wales, 2/3260, p. 1.

For another full report of this case, see Sydney Gazette, 20 October 1832.  For commentary, seeAustralian, 19 October 1832, which said that this case was unprecedented in that the three judges of the Supreme Court sat in banco with a special jury.

For earlier proceedings, see Sydney Gazette, 18 September 1832; Sydney Herald, 17 September 1832; Australian, 21 September 1832.  The Australian, 5 October 1832, claimed that the case was about to be brought up again for the five hundred and fiftieth time.

For earlier litigation, see R. v. West, 1831.

See also R. v. Steele, 1834.

[2 ] 18 October 1832.

[3 ] The Sydney Gazette, 20 October 1832, concluded its report of the case by noting that it diminished Mr West's land by about eight acres, as well as removing nearly half of his frontage on the South Head road and the whole of it on the new Woolloomooloo road.  However, to his advantage, the paper noted, it asserted his right of possession of the very valuable land between his former fence and the present South Head road.  The Gazette noted that the Attorney General, Solicitor General and Therry acted for the Crown, and Wardell and Wentworth for the defendant.


Published by the Division of Law, Macquarie University