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

Wilson v Tarlington [1832] NSWSupC 68

trespass to land - land law, title, proof of - Prospect

Supreme Court of New South Wales

Dowling J., 24 September 1832

Source: Sydney Herald, 27 September 1832[1 ]

Wilson v. Tarlington. - This was an action of tresspass, to try the right to a piece of land, of about an acre and a half in extent, at Prospect.

The defendant pleaded, first, not guilty, and secondly, a justification.

On the part of the plaintiff, it was endeavoured to be proved that a piece of land of fifteen acres had been leased by plaintiff to defendant; during the existence of the lease, it was contended that defendant had erected a fence between his and the plaintiffs land, by which he encroached about an acre and a half.  The lease having expired in January last, plaintiff required defendant to give up the land, and to remove the fence, which defendant refused, alleging that was the proper boundaries, and had always been so; in consequence, plaintiff obtained the assistance of Mr. Edward Hallen, the Surveyor, who decided that defendant should remove the fence, as he had encroached on plaintiffs land.  To this both parties assented, but plaintiff would not consent to be at the expense of removing the fence; this took place on the 26th June.  A few days after defendant pulled up the stake put down by Mr. Hallen, turned his cattle into the land, and ploughed up part of it, for which trespass, and keeping him out of his ground, the present action was now brought.

The defence to the action was this:- On the 1st  May, 1797, Governor Hunter granted to one Myles 30 acres of land, at Prospect.  On the 31st January, 1802, Myles granted 15 acres of the land to plaintiff, and subsequently the remainder to a man named Rowe, who sold it to defendant, at which time a fence existed between the land, but which did not go fully up to the side line; about eleven years ago defendant pulled down the old fence, but erected one in the same spot.  The reason of the present action being brought, it was alleged, was in consequence of a valuable quarry of stone having been found on the land, which had been purchased by Government of defendant for 1000 acres of land at the Murrumbidgee, and that plaintiff wished now to obtain half of it.

The original grantee and another man having proved that defendants fence stood where it had for the last 28 years, plaintiffs council agreed to take a nonsuit, as he was not prepared to combat such evidence.  Plaintiff nonsuited.

Messrs. Foster and Rowe for plaintiff; Messrs. Wentworth and C. H. Chambers for defendant.

 

Notes

[1 ] See also Australian, 28 September 1832.

Published by the Division of Law, Macquarie University