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

Kenney v. Byrne [1834] NSWSupC 110

land law, title, by prescription - Appin - highways

Supreme Court of New South Wales

Dowling J., 21 October 1834

Source: Sydney Herald, 23 October 1834[ 1]

Before His Honor Mr. Justice Dowling and a Special Jury.  Kenney v. Byrne and others. -  This was an action of trespass, brought against defendants for breaking and entering a certain close belonging to plaintiff, at Appin, whereby he was subjected to much damage and injury. - Damages were laid at £300.  Defendant pleaded first the general issue, and second a public highway.

Mr. Wentworth opened the case. - The learned gentleman stated, that the present action was brought to try a right of way which the defendant claimed over the land of the plaintiff; defendants reside in Upper Minto, and possess farms immediately adjoining the property of the plaintiff; plaintiff for some time resided in Argyle; not finding it convenient to occupy his property in Appin, he had put the whole under the management of an overseer, who superintended the cultivation and other arrangements for upwards of two years; about that period plaintiff returned to his farm at Appin; the overseer had permitted the neighbours to pass through the farm with their teams and cattle, as a friendly accommodation, it being a much shorter cut than by the regular way; when plaintiff returned he found that many great inconveniences and damage had resulted from such courtesy to his neighbours, and he refused to allow person to pass through his ground henceforward, and, in order to effect his determination in the quietest manner, he had the gates secured with padlocks; the defendant, not choosing to go the round about way, persisted and went through plaintiff's land, on the 16th April last, breaking and demolishing the fences and other necessary obstructions; not content with having broken one road through the land, they subsequently, on the 1st May, forced a passage through another part of the farm close to plaintiff's house, brandishing an axe and threatening personal violence to any person who should oppose them.  This action would be defended on the ground of a public right of highway along the line of road made through plaintiff's farm; but before a plea of that nature could be sustained, it was necessary for defendants to prove, that not only themselves but the whole of the King's subjects had so used it for a period of six years, the permission of the plaintiff thereby dedicating it to that purpose; any proof of private right would be unavailable; to shew the nature of the trespass complained of , he would put the following witnesses into the box:-

William Aldridge. - I know James Byrne, Thomas Shoughnessy, and James Warrington, their farms were near Mr. Kenneys; Byrne has since shifted, the farm belongs to him; he comes backwards and forwards sometimes; I have seen Shaughnessy there sometimes; I remember seeing Shaughnessy and Byrne coming up the avenue in front of Mr. Kenney's house; the gate was locked, and Byrne asked plaintiff if he might go that way; plaintiff said he should not; they had a few words, when they went back to another gate, which leads from the avenue to plaintiff's paddock; they broke the lock off and went through to Warrington's farm, their way being over plaintiff's farm; they had a horse and cart; the distance to Warringtons is about three quarters of a mile; there was a draw pannel which led from Mr. Kenney's to Byrne's farm, through which they also passed.  On the first or second May they came in a different direction, in front of plaintiff's house, close by the verandah; there was a drain dug across the avenue, which they passed on the 16th April; they borrowed an axe, cut down the fence, and went through the orchard; there was no road through the orchard before they made it; the three defendants were present on that occasion; I don't know where they got the axe; I don't know where plaintiff was at the time; I saw them cut one fence down; they split the foot and let the rails out; they all assisted in doing this.

Cross-examined. - I have been on plaintiff's farm above twelve months; I saw defendants pass that way, and several others; they were never prevented until April last; I don't know how far Mr. Kenney's farm is from the main road; there is a road through Mrs. Broughton's, which leads to the main road; I am not aware that defendants were ever stopped before; they smashed the lock, they could not get through without breaking the lock; I can't say how long the lock was up before that time - I  know a good while; I have heard Mr. Kennedy is ill, I know he has gone that way also; they came in front of Mr. Kenney's house on the first of May; the road they made is about fifteen or sixteen roods from Mr. Kenney's house; the road they have used since is by Larry D'Arcys; James Bisgrove and Samuel Walker were present and saw defendants cut the fence down.

James Bisgrove. - I am an assigned servant to Mr. Kenney, the plaintiff; the defendants occupied a farm next to that of plaintiff; I recollect defendants on Monday last coming to my master's farm; I was breaking wood in front of the house; I heard the crack of a whip; I had strict orders not to allow any one to come through the gate or by the house; this was a gate leading through a wheat field from Donnelly's farm, which my master bought; I had been watering a horse and left the gate open, but, on perceiving them, I ran and shut the gate; the defendant took the gate out of my hand saying, if I did not let go he would knock my head off; they then went through; when they got to the avenue they found there was a drain cut across; Byrne then went to Fitzpatrick's and borrowed an axe, and cut the fence of the orchard; Shoughnessy cut the post at the bottom, and then handed the axe to Warrington, who split the foot and let the rails out; I then went and told my master, and he desired me to go back and see if they cut any more; on returning, I saw them further down the orchard cutting another part of the fence; Mrs. Fitzpatrick was present, and Byrne had an axe; Byrne said, if any one had stopped him he would have sunk the axe into his head as far as it would go; this was on the 1st or 2d of May; the orchard is a good size, and full of valuable fruit trees; I saw them pass through the wheat field; they had a horse and cart and a three bullock team; I never saw any one pass through the orchard before they did so on that occasion; in passing through the orchard they must necessarily have passed near Mr. Kenney's house.

Cross-examined. - I have been in Mr. Kenney's employ about ten months; I saw Mr. Byrne on one occasion on horseback; I would have stopped him, but I did not know him; I have had orders to stop everybody; I received these orders about a fortnight after I went; they used to be a nuisance in coming by drunk; the reason I did not stop Mr. Byrne was, I was in the kitchen, and did not hear him until he was through; I received these instructions before I heard of the padlock being broken off; after they broke the lock, there was a drain cut to oppose the passing of persons through the farm; I was before the Police Magistrate at Campbell Town in reference to this case; I went their to prove that Warrington took an axe, which he flourished about, threatening to knock any one down who would prevent his breaking the lock off the gate of the avenue; plaintiff summoned Warrington before the Magistrates for cutting down the fence; I don't know whether Byrne and Shaughnessy were summoned also; the avenue is close to the orchard; the avenue is on the left of the house, and the orchard is on the right, the ditch was there on the 2nd of  May, there was no other obstruction; I know Mr. Byrne's Farm, there is a slip pannel [sic] between my master's farm and Byrne's; I know my master did not make it, his cattle used to get through and get into the pound; I never say any one but the defendant pass that way; Mr. Kennedy is my master's brother-in-law, I would suppose it strange if he prevented his going through; Mr. Kenney passes through Mrs. Broughton's Farm to the main road, there is another way, which goes through Donnelly's Farm, and by D'Arcy's; Mr. Kenney never uses that road, we go that road to get wood; Mr. Kenney and Mrs. Broughton are on good terms; I don't know what other roads there may be from Mr. Byrne's Farm to the main road, than through Mr. Kenney's, with bullocks and cart; I have seen cattle driven through the Pass Creek, bounding the plaintiff's Farm, through the Government ground; I do not know whether carts and drays could go that way, Byrne might go by his own house and pass over the Government ground, as other people.  This closed the plaintiff's case.

On the part of the defendant, Mr. Keith took an objection to the Declaration, inasmuch as no proof had been adduced, that the trespass had been committed in Appin and the Country of Cumberland as set forth, which plaintiff was bound to prove.

On the part of the plaintiff, Mr. Wentworth opposed the objection - The learned gentleman submitted to the Court, that it was not a matter of Local description, but one of mere venue, which plaintiff was no bound to prove; even a direct variance, he held, would not be a fatal objection, supposing the trespass to be laid in Appin, and proved to have been in Minto, under the authority of 2nd East, 520.

His Honor the learned Judge observed, that on the objection, which came very late, he should certainly not stop the case, he would however make a note of it.

Mr. Keith contended, on behalf of the defendant, that the way in question was a public highway, and had been used as such by defendants, in passing to and from their respective farms, for a long time prior to the purchase of the farm by the plaintiff, on which the trespass is alleged to have been committed; it was, in fact, the only means they had of passing between their farms and the main road; the learned gentleman quoted a case ``Smith v. Spearing, tried five years ago in that Court, in which it appeared that the plaintiff had a farm situated between the only run of water in the neighborhood, and the farm of defendant; who had always driven his cattle thereto, passing near the plaintiff's house; but plaintiff took it into his head to erect a large paddock around his house, wholly cutting off the use of the water; defendant in that case had been obliged to resort to means similar to those adopted by the defendants in the present case, when plaintiff brought his action; in that case, the Court held it to be a public highway, although it did not appear that any other person had so used it besides the defendant; and the Jury, under the direction learned Judge, returned a verdict for the defendant; the learned gentleman contended, that the Court must feel bound by its former decision, as to the point of law exhibited in the pleading; the present case was perfectly similar in its character, with an advantage of the additional fact, that numerous persons had been obliged to use it for a number of years, with the permission of plaintiff, who had thereby made the dedication to the public, contemplated by the law in the establishment of the fact of a public highway.  Mr. Keith, in closing the defence, stated his readiness to leave the case, as it stood, in the hands of the Jury, and should decline calling any witnesses, when one of the defendants stood up, and begged the Court to allow him to call witnesses in support of his defence.

Mr. Rowe replied - That himself and his learned friend Mr. Keith, being judicially advised, were of opinion that in declining to call the witnesses named by the defendants, they were adopting a course, having for its object, the interest of their client; if he persisted in upsetting their arrangements, he must of course take the responsibility upon himself.  His Honor informed the defendant, that his case being in the hands of his legal advisers, gentlemen of honor, character, and capacity, the Court could not admit of the unnecessary, not to say the injudicious interference of a client.  A Court of Justice did not sit to indulge parties I a spirit of litigation, its object was to adjudicate on matters of right between man and man, and in the exercise of that principle, the interests of clients would be consulted; in the present case, there was no cause of complaint as to the zeal evinced on the part of the gentlemen who conducted the defence.  His Honor then recapitulated the evidence, and on submitting the case to the Jury observed, that he apprehended that no difficulty could present itself, as to the fact of its not being a public highway.  In order to sustain a plea of that nature, defendant could not rest himself in shewing his own personal use of it, he must unquestionably shew that it was open for the use of the public at large; otherwise, no man's property would be safe from the intrusion of his neighbors; the question therefore for their consideration was, whether or not, according to the evidence, the plaintiff had for the accommodation of his neighbors and the public, allowed them to open a way through his orchard, or whether he had not taken reasonable means to check the intrusions which had been made during his absence from his Estate at Appin.  With respect tot he objection to the Declaration, taken by the learned counsel for the defendant, he felt bound to tell them that the present case was not one of local description, as in the case of a trial for burglary, alleged to have been committed in any particular place; there the locus in quo became a necessary matter of proof; in the present case, the Declaration set forth all that was necessary to the issue.  The Jury retired a few minutes, and returned a verdict for the plaintiff, damages twenty shillings.



[1 ] See also Sydney Gazette, 23 October 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3287, vol. 104, p. 43.

Published by the Division of Law, Macquarie University