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

Little v Larkham [1833] NSWSupC 44

trespass to land - land law, title, proof of

Supreme Court of New South Wales

Burton J., 4 June 1833

Source: Sydney Herald, 10 June 1833[1 ]

Little v. Larkham. - This was an action of trespass, quare clausam fregit, brought to recover damages for defendant's breaking down plaintiff's fence.  To this the defendant pleaded - first, the general issue; second, liberum, tenementum, justifying the act on the ground that it was her own free-hold; and third, that she had possession.  To these pleas an assignment had been put in, setting out precisely the boundaries on which plaintiff alleged the trespass to have been committed; to this rejoinder the defendant had pleaded not guilty, and thereupon issue was joined.  On the plaintiff's behalf it was proved, that in 1810 or 1811, the ground in dispute, situate in Kent-street, was in the possession of a man named Brady, a baker, who built a house upon it, leaving on the south side two feet of land for a barrow-road to his oven, and which he fenced in; the houses and premises subsequently came into the possession of the plaintiff.  On the 1st September, 1832, the defendant whose land adjoins on the south side, pulled down the fence between the premises, alleging the ground up to plaintiff's house to belong to her, and pulling it down on several occasions when it had been erected; also, that she had offered to purchase the piece of land in question.  For these alleged trespasses the present action was now brought.  The defence to the action was, that defendant had only made use of her own property.  The assessors found a verdict for the defendant.

Mr. Foster for the plaintiff, and Messrs. S. Stephen and Norton for the defendant.

 

Notes

[1 ] See also Australian, 7 June 1833

Published by the Division of Law, Macquarie University