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

Wilson v Bray [1833] NSWSupC 91

trespass to land - land law, title

Supreme Court of New South Wales

Dowling J., 2 November 1833

Source: Sydney Herald, 4 November 1833[1 ]

Saturday. - Before Judge Dowling and the following Special Jury; S. North, Foreman, P. Demsestre, T. Burdekin, W. Dawes, G. B. Suttor, J. Campbell, J, J. Moore, G. Druit, R. Crawford, P. Hosking, C. Marsden, & S. Marsden, Esquires.

Wilson v. Bray. - This was an action of trespass, to recover compensation in damages done by defendant, in forcibly pulling down part of a building erecting by plaintiff, near Market-wharf, Darling Harbour, which was alleged to over-reach a few inches at one corner of it, on the land of defendant.

Mr. Wentworth for plaintiff called witnesses and produced charts and plans to show the relative position of lands held by the parties to this action, which were adjoining.  The land held by plaintiff was purchased of Robert Green, who received title from the Crown by purchase, under an extent which title was not disputed.

Messrs S. Stephen and W. Foster for defendant, also called several witnesses, surveyors and others, to prove that plaintiff had trespassed on the land of defendant some five and a half inches, tapering off to nothing at a point, and that in consequence defendant was justified in removing the building so begun on his soil.

His honor in summing up stated, that defendant had not proved right and title in the soil and freehold of which he held possession for the last 12 or 13 years, as applied to this action; whereas plaintiff had fully produced documents and evidence as to his right and title to the land adjoining; - that, therefore, defendant's plea of possession could not entitle him in law to that part of the land in dispute, and that this disqualified him in his second plea of justification in pulling down a part of plaintiff's building.  In law he thought, therefore, the Jury must give a verdict for plaintiff.

The Jury after retiring a few minutes, returned a verdict for plaintiff, Damages, 40s.

His honor then discharged the Jury, stating that no more Jury cases would be heard until next term.

 

Notes

[1 ] See also Dowling, Proceedings of the Supreme Court, Vol. 90, State Records of New South Wales, 2/3273, p. 105.

Published by the Division of Law, Macquarie University