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

Published by the Division of Law     Macquarie University

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[squatting - land law, title - trespass to land]

Nowlan v. Reid

Supreme Court of New South Wales

Dowling A.C.J., 6 October 1836

Source: Sydney Gazette, 11 October 1836[1]

 

Before the Chief Justice, with Messrs. Johnstone and Somphill Assessors.

Nowland v. Reid. - This was an action of tresspass, damages laid at £100, which the Attorney General characterised as being one, not only of importance to the parties concerned, but also to the public generally.  The facts of the case were these.  In the year 1823 plaintiff arrived in this colony, bringing with him instructions that he was to be allowed a certain grant of land, Sir Thomas Brisbane the then Governor of the colony, issued an order for him to take possession of 4000 acres in the district of the Hunter.  He accordingly took possession of the said land, but in consequence of a government order having been issued, previous to the grant being made out, he was told that he could not have more as a free grant, than 2000 acres, but was allowed to purchase the other portion at the rate of 5s per acre.  In the year 1835, plaintiff went down to Van Diemen's Land; during his absence it was necessary to move a portion of his sheep from one part of the estate, to another, when so moved, defendant thinking that plaintiff had no actual grant of that particular part of the property, then took possession, which he had since held.  Previous to any evidence being gone into, his Honor enquired, whether the case could not be settled out of Court?  As such actions, let the result be as it might, never produced any good feeling between gentlemen.  The suggestion however was not attended to, and the case proceeded.  The chief point relied upon by the defendant was, that they were only granted to plaintiff upon a seven year's lease, which lease had expired before the former took possession, and that plaintiff himself had previously abandoned the station.  The chief Justice in putting the case to the Assessors observed, that plaintiff had held a clear right of possession beyond any other, except the crown.  But it would be for them to say whether when he drove his flock from the land, he meant to abandon it.  His (Chief Justice's) opinion was, that it was not an abandonment, but that plaintiff was merely exercising the priviledges which settlers were in the habit of doing, viz. running his flock upon unoccupied government land, whilst his own might come round.  The Assessors after a short consultation returned a verdict for plaintiff damages one farthing.  Mr. Windeyer asked his Honor to certify for two counsel, but which he refused.

 

Notes

[1] Squatting was legitimised by the government granting a licence to settle on land beyond the limits of occupation: see (1836) 7 Wm 4 No. 4.  In March 1836, there was a petition for the restriction of squatting (Australian, 22 March 1836): the opposition to squatting did not mention that Aboriginal land was being taken, but concerned class interests and crime.  The land was referred to as vacant Crown Lands.  See also Australian, 8 April 1836 (the petition and Bourke's reply, that permissive occupancy is the best solution, on payment of a small ``rent"); and see Australian, 12 April 1836 (newspaper's reply).