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

Blue v Lavender (1835) NSW Sel Cas (Dowling) 976; [1835] NSWSupC 11

North Sydney ferry - succession - injunction - Blue, Billy

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 21 February 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]

[p.22]

[1835

Saturday

21st February]

[Testator devised an exclusive right of ferry between an allotment of land on the North shore &Sydney, to his eldest son, & restrained his other children from interfering with the same, without consent of the son, upon pains of forfeiting their share of his estate.  One of the children set up another ferry on his land adjacent to the old ferry without consent.  Held that injunction would not lie to restrain her from continuing the ferry.]

In Banco

Blue v Lavender and wife

The father of the Plf, William Blue died possessed of land on the North Shore opposite the Town of Sydney, and devised the same to and amongst his children in certain proportions as tenants in common.  The father in his life time plied a ferry boat, and exercised a right of ferry from a point of his land to Sydney.  He devised to the Plf his eldest son the exclusive right to the said ferry, & restrained his other children from exercising the said right without the permission of the plf & declared that if any of his other children trespassed by going there, to disturb the plfs ferry they should incur a forfeiture of their shares respectively of the estate devised by his will.  The deft married one of the testators' daughters, and it was alleged that he had commenced plying another ferry from that portion of his wife's land, which was adjacent to the point occupied by the plf & on which the [p.23] old ferry was established, to the plf's injury and in violation of the stipulations of the devise.

Kerr now moved for an injunction to restrain the Deft from plying the ferry he had set up in opposition to that devised to the Plf.

Sed per curiam.  We do not think this is case for an injunction.

Injunction refused.

 

Notes

[1 ] What appears to be the original of this (in Dowling's shorthand) is in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3290, vol. 107, p. 164

Published by the Division of Law, Macquarie University