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

Williams v. Campbell [1838] NSWSupC 26

squatting, trespass - trespass, squatting run - land law, trespass to squatting run - land law, title, squatting run - repugnance to English law, land law - land law, repugnance to English law - Menanglo - sheep, scabby - sheep farming - separation of powers

Supreme Court of New South Wales

Burton J., 19 March 1838

Source: Australian, 23 March 1838[ 1]

MONDAY. - Before Mr. Justice Burton and a Special Jury.

Williams v. Campbell - This was an action of trespass.  Declaration contained two counts.  First, for taking possession of plaintiff's huts at Menanglo, in the County of Murray; second, for breaking and entering certain closes of defendant at Menanglo aforesaid, and depasturing there a large quantity of sheep infected with a certain infectious disease called the scab, by which plaintiff's sheep then and there became infected and deteriorated in value, &c. to the damages of plaintiff of three thousand pounds.  Plea general issue.  ``Librum tenementum."  Replication - New assignment; upon which issue was joined.

It appeared in evidence, that plaintiff was possessed of several flocks of sheep, valued at from four to five thousand pounds, and that in the years 1833 and 1834, he employed his friend and agent, Mr Donald Macleod, to select a station for him, who fixed upon the spot in the pleadings mentioned, where defendant erected huts, and took possession, placing his overseer, men, and sheep, on the premises.  Subsequently, plaintiff caused the land to be put up for sale, pursuant to the Government Regulations, when the same was purchased by Mr A. Polack, who forfeited his deposit when the time for completing his purchase had arrived; the plaintiff in the mean time keeping possession.  On the 14th of March last, the overseer of defendant came to plaintiff's station and informed his overseer that his master had purchased the land at a Government auction; giving him notice to quit.  The overseer not having a dray or bullocks on the station, was unable to do so; on the 14th, the defendant's servants, with drays, arrived on plaintiff's station with a flock of scabby sheep, and herded them close to plaintiff's clean sheep, the shepherds of defendant following plaintiff's sheep on the run, in order, as was contended, to drive plaintiff away.  On the 16th March following, plaintiff's overseer requested defendant to assist him in moving, with the loan of drays and hurdles, which he did, on plaintiff's overseer lending defendant a man to dress his dirty sheep.  The plaintiff's evidence on the second count, as to scabbing plaintiff's sheep, was contradictory, the bias of testimony leaning towards the conclusion, that they were still clean, and had not been infected.  The Attorney General contended the plaintiff must be nonsuited, on the grounds - first, that he had not set out his huts and boundaries with sufficient strictness, according to the description contained in his new assignment; and, secondly, no trespass had been committed, as defendant's overseer voluntarily departed from the station, on a regular contract for the loan of defendant's dray, in consideration of plaintiff's overseer lending defendant his man to clean defendant's scabby sheep; and even if no contract existed, one had as much right to the land as the other, being both squatters.  His Honor held the huts and boundaries were correctly proved, as set forth in plaintiff's replication.  That the trespass was committed on the 24th of February, and the removal did not take place till the 16th March, when plaintiff's overseer was compelled to fly, or endanger his master's property.  With respect to the parties, His Honor held the plaintiff was entitled to recover, if the Jury believed the trespass committed; for if the law did not recognize possession, the result would be an appeal to force and bloodshed, and riot would be the consequence.  M r. Williams clearly had possession, and could maintain an action against all wrong doers; the crown only could disturb the plaintiff.  The Attorney General having addressed the Jury for defendant, His Honor summed up, observing the alleged trespass was the merely taking possession of plaintiff's huts; the gravamen turning plaintiff out of his sheep station.  Verdict for the plaintiff - Damages, £100.

Counsel for the plaintiff, Messrs Foster, Windeyer, and Raymond; attorney, Mr O'Reilly.  Counsel for defendant, the Attorney General and Mr Kerr; attorneys, Messrs Chambers and Thurlow.

The learned Judged certified for three Counsel and a special jury.

 

Notes

[ 1]See also Sydney Herald, 22 March 1838.

On legislative changes to squatters' runs, see Gipps to Glenelg, 7 November 1838, Historical Records of Australia, Series 1, Vol. 19, 649; Chief Justice's Letter Book 1836-1843, State Records of New South Wales, 4/6652, pp 101-102.  Burton and Willis JJ had declared a local Act (2 Vic. No. 19) to be repugnant to English law, on broad grounds touching on the crown prerogative to raise territorial revenue.  On the governor and Attorney General objecting to their opinion, they agreed to withdraw their objection and draft a new one going only to minor points.  The governor agreed to redraft the Act to meet their concerns on the minor issues.  In a private letter of the same date (at 651f), Gipps told Glenelg that he thought Burton J was of the highest integrity, but that he had some ``peculiar notions" on the rights of the crown to dispose of colonial land.  Burton had now changed his mind: initially he held that the £10 licence was a tax, but now he saw it as a permissible matter of territorial revenue.  Willis was less explicit about this change of mind.  Both, however, thought that it was illegal for the crown to sell land without the express consent of imperial parliament.  Burton based this on 1 Anne c. 7 which he thought was in force in New South Wales.  Willis based it on the Civil List Acts under which the King gave up all control of territorial revenues to the parliament.  Dowling disagreed, according to Gipps.  The governor thought that if the puisne judges' views prevailed, no title holder could succeed in an action in ejectment.

Chief Justice Dowling was most reluctant to exercise this power to declare legislation repugnant.  In a letter to Governor Gipps, dated 18 December 1838 (Forbes papers, Mitchell Library, A 1267-18 (CY 2710, p. 2), he expressed the opinion that "the Legislative and Judicial Offices are incompatible and should be kept as distinct as possible, especially in so small a community as ours."  He stated further (at p. 3):

I know of no greater curse to society than a political Judge. Under any circumstances in this thinly populated Colony, it is difficult for the most cautious and prudent man to escape the influence of party favor. The very air we breathe is tainted by it, and it requires entire separation from the diseased to escape infection. The anxious career of my able and distinguished predecessor, Sir Francis Forbes, affords a sufficient illustration of the force of these observations. That gentleman was originally placed, against his will, both in the Executive and Legislative Councils. At his own earnest entreaty he was permitted to withdraw from the former but was retained in the later against the conviction of his own mind as to the prudence and policy of the proceeding. Doubtless the Crown felt the necessity of placing the Chief Justice in Council when the present system of local Government was established in 1823, but if it is intended to enlarge the Legislative Council by Royal nomination, or infuse more popular elements into its present constitution by the elective franchise, the necessity of retaining the Chief Justice may cease, or at all events render it expedient  to relieve him from a position so inconsistent on constitutional ground, with his judicial functions.

 

Published by the Division of Law, Macquarie University