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

Lewis v. Klensendorlffe [1839] NSWSupC 14

land law, title - right of way - road way

Supreme Court of New South Wales

Willis J., 21 March 1839

Source: Sydney Gazette, 23 March 1839[1] 

(Before Mr. Justice Willis and a Special Jury)

Lewis v. Klensendorlffe. -- This was an action of trespass. Damages were laid at £300.  The case lasted a considerable time. The declaration describing the trespass was answered by the defendant pleading firstly, not guilty; and, secondly, that the soil of the closes on which it was alleged he had trespassed was his own, and that he was therefore justified. The plaintiff, on this, joined issue on the first plea, and asserted that the soil was not the property of the defendant. The defendant then pleaded that he was not guilty, and that there was a public road through the closes, and that he only removed certain obstructions he found thereon; that there was a permission by which persons occupying the plaintiff's land had a right of way through his closes, and that he was obliged by necessity to go through the land. On the first of these latter pleas the plaintiff further joined issue, the others he denied. It was proved for the plaintiff that on several occasions the defendant had gone through his land and destroyed the gates and fences. For the defendant it was contended that there had always been a right of way, in proof or which several witnesses were called and proved that during twenty-six years there had been a road through the land, although the land had been fenced up, by means of slip rails, &c. His Honor held that all the pleas except the second one, that it was a public way, had failed, and that to constitute it a right of way it was necessary that it should be given over to the public use without any gate, bars, or any reservation. The Jury returned a verdict for the plaintiff, damages £25. Counsel for the plaintiff, Messrs. Stephen and a'Beckett; for the defendant, Messrs. Foster and Windeyer.



[1] See also Australian, 23 March 1839.  An application for a new trial was rejected: see Sydney Gazette, 2 July 1839; Australian, 2 July 1839.  See also Bellamy v. Taylor and Webb, Sydney Gazette, 20 June 1839; Australian, 20 June 1839.

Published by the Division of Law, Macquarie University