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

Wright v. Titterton [1847] NSWSupC 61

land, right to support of, pleading

Supreme Court of New South Wales

Dickinson J., 11 October 1847

Source: Sydney Morning Herald, 12 October 1847, in Supreme Court Collection, Vol. 2, p. 18


His Honor Mr. Justice DICKINSON delivered the Judgment of the Court in this case as follows:-

The first count of the declaration stated that the plaintiffs were seised in fee of divers houses, and being so seised, the defendant maliciously contriving and intending to deprive the plaintiffs of the advantage of the said houses, and unjustly to aggrieve the plaintiffs, did dig, and excavate earth and soil, in a certain piece of ground called Wilmot-street, so near to the said houses of the plaintiffs that by reason thereof afterwards, the said houses entirely tumbled and fell down upon the ground in the said piece of land so dug and excavated as aforesaid. The declaration contained another count, but as the difference between the two is immaterial to the question we have reserved, it is not necessary to set out the second count in this Judgment.

The defendant demurred to the declaration on several grounds, all of which, we decided, during the argument, in the plaintiff's favour except the following, which we reserved, viz., that the declaration did not show any wrongful act committed by the defendant, nor that the plaintiff had any legal right which had been violated by the defendant. The demurrer was argued on Friday last by Mr. Fisher, for the defendant; and by Mr. Boadhurst, for the plaintiff. The following cases were cited:- Wyatt v. Harrison, 3 B. and Adol. 871; Partridge v. Scott, 3 M. and W. 220; Dodd v. Holme, 1 Ad. and El. 493; Roberts v. Reed, 16 East. 215; Chadwick v. Trower, 6 Bing. N. C. 1; Grocers' Company v. Doune, 3 Scott 356; Slingsby v. Bernard, Rolle's Reports, 430; and Smith v. Martin, 2 V. Wms. Saund. 400.

We have considered this case. Upon the authorities cited and others it is clear that every man has a right to use his own land as he likes, provided he does not thereby injure the rights of others. The plaintiff has in his declaration stated no specific right to the support of that land which he has charged the defendant with excavating. Neither does the declaration aver that the defendant's acts were performed on his own land. The declaration therefore differs from those in the cases cited, with the exception of that in Smith v. Martin, 2 Saund. 400, from which (as we were informed by Mr. Broadhurst) the declaration in this case was framed.

On comparing the declaration in Smith v. Martin with that in the present action, we find that they are substantially similar. The only question, therefore, is whether the frame of the declaration in Smith v. Martin, which was not objected to upon the ground here taken, is an authority in favour of the declaration in this action, against the objection now under our consideration. As the declaration in this action does not state that the defendant excavated the earth of the plaintiff's land, or the soil of a public place or way, we have great difficulty in intending that the defendant's alleged act of excavation was wrongful, as from aught that is averred the act might have been performed upon the defendant's own land, in which case, if we construe the excavation to have been wrongful because it was done to aggrieve the plaintiffs, then we see nothing in the declaration from which we can collect that the plaintiff's houses had a right to the support of the soil which is stated to have been dug by the defendant. But from the report of Smith v. Martin, although it appears that Saunders himself assigned for the defendant several grounds of error, he made no such objection to the declaration as that in question. Neither Serjeant Williams in his note to Smith v. Martin, nor Patterson and V. Williams in their edition of Saunders have suggested any doubt as to the validity of the declaration in the last mentioned case; nor has Mr. Justice Vaughan Williams, in his recent edition of the same work (though calling attention to Trower v. Chadwick and the other more modern cases, and to the fact that the declaration does not show that the defendant worked on his own land), expressed any opinion that the declaration in Smith v. Martin is bad. The last mentioned declaration is the only one we can find like that before us; for though in Trower v. Chadwick the declaration resembles this in that it does not state that the defendant worked on his own land, it nevertheless differs from the present because the plaintiff does not ground his complaint upon the defendant's operations, but on his own performance of them, without giving the plaintiff notice, and is moreover no authority in the present argument, as the attention of the Court does not seem to have been distinctly directed to the absence of any averment that the defendant worked on his own land.

As therefore the distinguished lawyers who have had Smith v. Martin under their particular consideration, have not impugned the declaration in that case, we feel compelled to hold that the declaration in this action is valid. The defendant may, on the usual terms, withdraw his demurrer, and plead to the declaration.


Published by the Division of Law, Macquarie University