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

Sempill v Lethbridge [1833] NSWSupC 60

nuisance, public - trespass - abatement of nuisance - highway, obstruction of - highway, when public - Maitland

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 26 June 1833

Source: Australian, 1 July 1833[1 ]

Sempill v. Lethbridge and others. -  This was an action to recover damages against Captain Lethbridge and others, for removing certain obstructions erected by plaintiff on the road to Patterson's River.  Defendants pleaded that the road in question was a public road for all His Majesty's subjects, and that therefore they were justified in removing any obstructions unnecessarily built upon it by Mr Sempill the plaintiff.  The case came on to be tried at the sittings of last term before a special jury, when Mr. Justice Burton directed the jury to find a special verdict to the effect, that if the Court  were of opinion that the road was a private one then they should find for plaintiff, damages ten pounds.

On this day the case was fully argued by the learned counsel on both sides, when the Chief Justice and the other Judges pronounced their opinions seriatim in favour of the defendants, thereby establishing that what in this country is termed an occupation road is a public road, and that the road in question being marked by a government Surveyor and on which Mr. Sempill thought proper to raise obstructions, was a highway for all the King's subjects, and that Captain Lethbridge was perfectly justified in removing such obstructions. -  Counsel for plaintiff, Mr. Foster and Mr. Norton, For defendants, Mr. Wentworth and Mr. Sheehy.

 

Forbes C.J., Dowling and Burton JJ, 26 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

 

[p. 115] Trespass quare clausum fregit.  Not Guilty.  Justification that the locus in quo was a public highway.  At the trial before Burton J. & a special jury, the following special verdict was found: "As to the matters in the two first counts of the declaration & notice of plea mentioned the jury find that a road of occupation was marked by the surveyors & can through the land of the plf., & over which the hut was built.  But whether the said way was, upon the evidence, a public or private way, the jury are not advised, & pray the opinion of the Court.  And if upon evidence the Court should be of opinion that the said way was a public way as alleged in the notice of [p. 116] plea of the said deft then they find a verdict for the deft; but if the Court upon the evidence should be of opinion that the said way was a private way then they find a verdict for the plf, & assess his damages as 10£.

The case was now argued by Foster & Norton for the plf, & Wentworth for the Deft.

In arguing the case, it was conceded that the Judge's notes must be taken as part of the special verdict, & as finding sufficient facts to raise the question.

It appeared from the evidence, that in 1827 the surveyor general by his deputy, surveyed & laid out a road at Maitland leading to the allotments of the veteran soldiers there settled.  It was 33 feet wide, & called the veteran's [p. 117] road, and ultimately led to a ford in the Hunter's River.  The witness called it an occupation road, in contradistinction to a public road, because the public roads are laid out 90 feet in width.  The plf had built a hut upon the road in question, which the deft caused to be pulled down.  There was no evidence that the locus in quo had ever been used by the public as a highway.

Forbes. CJ was of opinion that the mere calling the way in question an occupation way, did not negative the idea of its being a public way.  The Court was not tied up merely by the name given to it by a witness.  This road had been surveyed & laid out by a public functionary [p. 118] - the surveyor general -.  As such it must be considered as between these parties, a public road, though never before used by the public.

Dowling J.  There is no magic in the words, "occupation way".  The question is, whether this can be considered a public way.  Having reference to the circumstances stated in the special verdict, & disclosed in the Judge's notes, which were to be considered as part of the verdict, I think this is to be held a public way.  It is laid out by the authority of the Government, & if not disaffirmed, it must as between these parties, be considered a highway for all the Kings to go over & along the same with their carts & carriages.  This act of measuring & laying out by the Surveyor General I look upon as a dedica of the road to the public.

[p. 119] Burton J. was of the same opinion.

Judgement for the Deft.

 

Notes

[1 ] See also Sydney Gazette, 29 June 1833; Sydney Herald, 1 July 1833.

On 28 June 1833, Dowling and Burton JJ refused an application for the trial to be before a special jury, saying that the application was out of time: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 129.

Published by the Division of Law, Macquarie University