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

Hallen v. King [1839] NSWSupC 47

land law, title of squatters - squatting run, trespass on - Big River - water, rights to - riparian rights

Supreme Court of New South Wales

Stephen J., 8 July 1839

Source: Sydney Herald, 10 July 1839[1] 

Hallen v. King. -- This was an action of trespass damages laid at £1000.

From the evidence adduced for the plaintiff, it appeared that in April, 1836, he obtained possession of a run beyond the boundaries of the Colony, at Green-bark Creek, on the Big River.  He remained in possession of the run, having about one hundred head of cattle on one part, and a flock of sheep on the other until July, 1838, when the defendant drove a number of sheep on to it, which made the plaintiff's cattle run away, and although considerable search was made for them, there were from twenty to thirty which could never be found.  One part of the Green-bark Creek being considerably higher than the other, the plaintiff spent nearly £100 in cutting through the rocks, and making a dam, so as to make a convenient place for washing his sheep.  This dam the defendant's servants broke down, and then drove the sheep through the water for no other purpose, as was alleged, than to muddy the water and prevent the plaintiff from washing his sheep.  Subsequently the defendant said that the men had acted under his orders, and that he would put sheep into every waterhole, and that he had plenty of money, and would ruin the plaintiff.

The defence was that Mr. Hallen was not actually in possession of the run on which Mr. King put his sheep, and that the dam was removed because it had the effect of preventing the water from running down the river to the place where the defendant washed his sheep.  Several witnesses were called, but they only proved more strongly the plaintiff's case.

His Honor said, that the foundation of this action was possession; and that, therefore, the first question for the Jury was, whether the plaintiff was actually in possession of the Green-bark Creek run.  In every action of trespass it is a well-known principle that possession is a prima facie title, and the possessor of land or a house can resist every person who cannot prove a title.  This land was said to belong to the Crown, and if it did, it would have been a good defence to have proved an authority from the Crown to occupy the land, but nothing else would.  It was asserted by the defendant's Counsel, that the dam prevented the water from running to the defendant's land, and thus prevented him from enjoying some of his rights, but if it was intended to rely upon that plea, the plaintiff should have had notice of it.  The loss of the cattle, if any were lost, and the evidence on that point was very loose, the Jury could not take notice of, because it was not in the declaration, but he thought that the expense incurred in looking for those cattle was fair matter of damages.  The Jury retired about five minutes, and returned a verdict for the plaintiff, damages £200.

Counsel for the plaintiff, the Attorney-General and Messrs. Foster and Windeyer; for the defendant, Messrs. a'Beckett and Broadhurst.

Notes

[1] See also Keyes v. Smith, 1839.

Published by the Division of Law, Macquarie University