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

Scott v. Dight [1839] NSWSupC 16

trespass to land - land law, title of squatters - squatting run, trespass on - Liverpool Plains

Supreme Court of New South Wales

Willis J., 22 March 1839

Source: Sydney Herald, 25 March 1839[1] 

FRIDAY, MARCH 22, 1839 -- Before Mr Justice Willis and a Special Jury.

Scott v. Dight. -- This was an action of trespass.  The plaintiffs were Messrs. Robert and Helenus Scott, of Glendon, and the defendant Mr. George Dight, of Liverpool Plains.  The declaration set forth that on the 1st of August, 1837, and at other times, the defendant broke and opened the closes of the plaintiffs and eat up the grass and cut down the trees, thereby causing a great deficiency in the grass which made the plaintiffs' cattle suffer from want.  Damages laid at £1000.

The case was very simple.  In the year 1835, Mr. Bingle, of Puen Buen, formed a cattle station at Liverpool Plains near the junction of the Gwyder and Big rivers, to which he sent a number of cattle; these cattle and the right of station Mr. Bingle sold to Mr. Ward Stephens, who transferred his right to the plaintiffs, who remained in quiet possession until August 1837, when Mr. Dight sent two flocks of sheep into a flat where the cattle bedded and which was described as being the best spot in the run.  Cattle will not feed after sheep, and the consequence was, that the plaintiffs' cattle were dispersed and much injured.  Defendant, when spoken to on the subject, positively refused to remove his sheep.

The defence was, that the plaintiffs occupied more land than they required, and that a party must not take possession of more land than he can actually use, and that there was plenty of room for both of them.

To this it was replied, that as the run only extended over twelve and a half superficial miles, it was not too much land for the cattle that were upon it; that if there was too much land, that was not a subject for the defendant to judge of; and that the only question for the jury was, which party was the prior occupant.

His Honor told the Jury that the right of occupancy exists so long as the party occupies the land, and as it was proved that the defendant took his sheep into the best part of the plaintiffs' run, there was undoubtedly a trespass if they believed the evidence, and it was for the Jury to say what damages they would give.

The Jury retired about an hour and returned a verdict for the plaintiffs, damages £200.

Counsel for the plaintiffs, the Attorney General and Mr. Windeyer; for the defendant, Messrs. Foster and Broadhurst.

 

Notes

[1]  See also Sydney Gazette, 26 March 1839; Australian, 26 March 1839.

Published by the Division of Law, Macquarie University