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

Doe dem. Hall v. Matthews [1841] NSWSupC 34

ejectment - Surry Hills - Crown grant

Supreme Court of New South Wales

Dowling C.J., 18 March 1841

Source: Sydney Herald, 20 March 1841

SUPREME COURT. - CIVIL SIDE.

THURSDAY. - March 18. Before the Chief Justice and the following special jury: William Salamon Deloitte, John Buckland, George B. Christmas, John Brown, G. S. Cox, Esquires, Tales; Edward Brown, Thomas Cadell, James Chisholm, Randolph Dacre, William Dawes, Lesslie Daguid, and Charles Fairs, Esquires.

This was an action of Ejectment. Counsel for the plaintiff, Messrs. Windeyer and Foster; attorney, Mr. C. B. Rodd; counsel for the defendant, Messrs. a'Beckett and Broadhurst; attorney, Mr. George Allen.

            Mr. Windeyer opened the case for the plaintiff, and was followed by Mr. Foster, who, after giving an outline of the case proved the Deed of Grant, made in favour of the plaintiff by Governor Brisbane. By the evidence of Mr. Holt, it appeared,that he originally obtained a Grant of an hundred and eighty-five acres on the Surry Hills, part of which the plaintiff subsequently disposed of, by measurement, to the extent of, at least, one hundred and eighty-six acres, being one acre more than the Deed of Grant conveyed to him. It was proved, that the whole land conveyed to the plaintiff by this grant was contained within the limits defined by the Deed of Grant. The whole conveyance of the lots sold by the plaintiff to the various purchasers, were put in, and were as follow:- Mr. Levy 75 acres, Mr. Underwood 28 ditto, Mr. Jenkins 75 ditto, Mr. Riley 8 ditto. The plaintiff also insisted that there being more land contained within his boundary lines than were specified in his grant, was a consquence of the custom which prevailed with the surveyors at the time when his grant was surveyed, viz., of making an allowance for swamps and water holes where they occurred, and that therefore there was nothing strange in his having to claim a greater measurement than that specified in his Deed of Grant. It was also proved that the portion of ground claimed, comprising about eight acres, had been a portion of the original grant to the plaintiff, and there it was contended by his counsel, that he had a legitimate claim to it, because it was not specified in any one of the grants, that he had even disposed of it.

            The defence set up was, that as there was one conveyance in existence which had been executed by the plaintiff in which he recognised all the conveyances previously made as being part of the said grant, and also professed to convey the whole of the remainder of it. There were a dozen of charts, maps, plans, &c. produced in the case besides a half a dozen conveyances. The whole question resolved itself into determining what was the eastern boundary of the plaintiff's original grant, and in putting the case to the Jury, his Honor told them that if the old Botany road was the boundary of the Plaintiff's original grant, they were to return a verdict for the defendant, but if they were of opinion that the Sydney common was the eastern boundary there they would return a verdict for the plaintiff. The jury returned a verdict for the defendant.

Published by the Division of Law, Macquarie University