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

Purcell v Brooks [1833] NSWSupC 49

trespass to land - land law, title, proof of

Supreme Court of New South Wales

Burton J., 13 June 1833

Source: Sydney Herald, 17 June 1833

Purcell v. Brooks.  This was action of trespass quare clausam fregit, brought to recover damages for breaking and entering defendant's close, and distraining his cattle.

The defendant pleaded the general issue, and a justification that it was his soil and freehold.

This action was brought to try the right to the piece of land, the subject of the last action, between the present plaintiff and defendant, and the impounding of the cattle having been proved, the plaintiff put in the original grant of the land, and called the following witnesses to prove title:-

John Armstrong  I am a private Surveyor; I have surveyed some land in the Parish of Banks Town for plaintiff; it is nominally fifty acres, but contains fifty-five; it was originally granted to John Handel by the Government chart (grant shown;) this is the grant I surveyed; I never saw it before; I saw the Government map, and collected such information as I wanted for the survey; Purcell was with me, and one of his men, when I measured the land; I took as a guide trees which surrounded the farm, and trying other farms found out the situation of this; Chapman's farm adjoins, and there is a small encroachment on it by Handel; I did not take that in, but only determined the Government lines.

Cross-examined  I mean by an encroachment that the fencing on Handel has encroached on Chapman's farm; what is now enclosed is very different from the Government lines; where a farm has been set out for many years, they are difficult to survey; it is an old location; where the boundaries are set out by the ancient inhabitants, it is difficult to discover them; Purcell showed me the corner pin of Handel's farm; there is sufficient data in the sketch I have produced to find the boundaries; one is the river, another the road, and another a stump of a tree pointed out; I paid most attention to the tree; I took a point which I was shown, as that from which Mr. Meehan started when he measured those farms; Purcell gave me the information; the first time I went to survey the land Purcell asked me to point out the boundaries; I did so, in a rough way; afterwards I returned and surveyed it satisfactorily; I should not call them two surveys; the stump of the tree near the river was swamp oak, and marked on three or four sides; the marks were visible, but partially obliterated; when I commenced the survey, I saw Whalen, Captain Brooks' servant, and I sent by him a verbal message to Captain B. that I should be glad to assist to settle it for him; the data for this survey was from Purcell, Whalen, and Purcell's servant; I would not swear that any of the marks I saw were the orignal marks.

The plaintiff stopped short here, not being able to prove the transfer from Handel, and was consequently nonsuited.

Published by the Division of Law, Macquarie University