Kearney v. McKay

Supreme Court of Van Diemen's Land
Pedder C.J., 14-15 January 1830
Source: Tasmanian and Austral-Asiatic Review, 15 January 1830[1]

KEARNEY v. McKAY.

Mr. Hone and Mr. Hamilton, Assessors.

Mr. Gellibrand stated the law for the Plaintiff. This was an action for Trespass. The circumstances were shortly these. - The Plaintiff, Mrs. Kearney, resided in a non descript part of Hobart-town. The front of her premises was formerly a street; upon another laying out of the town, Collins-street and Argyle-street passed in directions whereby the premises of Mrs. Kearney became insulated. They were then bounded by the rivulet, as it then ran, on the rear, and her front was shut in by the rear of the premises in Macquarie-street. In order, then, to have access to her house, a road was left to her from Argyle-street. This was continued for 16 or 17 years. Last year the Government altered the course of the rivulet, and its former bed became Collins-st. Mr. McKay, the Defendant, purchased his present premises from Mr. Loane, and they shut in Mrs. Kearney on the side of Argyle-st., except the roadway which we above mentioned. But Mr. McKay, considering that now Mrs. Kearney has a new front into Collins-st., that she ought to do what military men would call "change her front by counter-marching her premises from the right," and he therefore, during an occasional absence of Mrs. Kearney from home, by a rapid manoeuvre of war, took possession of her road-way into Argyle-st., and, in the course of one night, having erected a very handsome building thereupon, he shut her in on the Argyle-st., side, by closing up the whole and attaching them to his premises. Our readers can from this description form, we hope, a tolerable accurate idea of what the lawyers call the "Locus in quo," a scrap of a Latin sentence the remainder of which is understood. To settle this question of right the present action was brought. The premises had been formerly viewed by the Assessors, and they fully understood the localities of the case.
The Chief Justice. - I should think all which you have to do, Mr. Gellibrand, is to prove possession for the period you speak of. I apprehend that is sufficient in this action.
The Solicitor General - I submit to your Honor, if a legal right of possession is shewn by me that will be a full answer to Mr. Gellibrand.
Roger Gavin. - Mrs Kearney has been in possession of her premises since 1808. (Mr. Gavin here described Mrs. Kearney's premises, as above stated, to have so been at the above period.) Mr. Gavin's evidence was so connected with the plan of the premises produced in Court that it cannot be well described. It is sufficient to say this it went to explain the state of the streets now and formerly, relative to each other.
Mr. Frankland - Is Surveyor General; produced Survey Books containing the description of the premises. It is to be understood that the descriptions are such as were then given by the possessors themselves. Mrs. Kearney's are then described as bounded by a road-way of ten feet, being, as we understand, the road-way in question.
Chief Justice - Then it appears that the descriptions in this book are merely those of the persons who furnished them to Mr. Sharland.
Mr. Frankland - It was the object of Government to issue grants or leases for town property to such persons as; after public advertisement, should prove to the satisfaction of the Solicitor General (in the event of dispute) that they were the rightful owners. In fact, the descriptions published in the newspapers by no means pledged the Government to its accuracy, it was published merely to indicate the premises.
George Simpson - He lived 20 years in the Colony; built the house in Argyle-st. now possessed by Mr. McKay; he built it for Mr. Wade, for whom he afterwards repaired it; he put up a fence between Mr. Wade and Mrs. Kearney; it was put up to the premises then Falknor's now Bethune's, but Mr. Evans, the Surveyor General, ordered me to take down 12 feet of it, that having been always left open as a road for Mrs. Kearney. I afterwards made an addition to Mr. McKay's house for Mr. Loane; I carried it to the boundary ordered by Mr. Evans, being within 12 feet of Mr. Fawknor's back line; I went to that extent by Mr. Loane's orders.
This was the case for the Plaintiff.
The Solicitor General addressed the Court for the Defendant. After some appropriate preliminary remarks, he went to the merits of his case. He urged that Mr. Gellibrand must show that he had a right to the road claimed. No evidence of an uninterrupted usage for a less period than twenty years gives any right to another. I will show it has been claimed repeatedly, -- that is to say, it has been interrupted frequently. Mr. Stephen went very much at large into this point, which our limits prevent our reporting. Mr. Stephen explained fully and clearly the right of way to land, -- that no grant of land can exist without a right of way leading to it, which must be both convenient and accessible.
Chief Justice - Suppose you sell me a piece of land in the center of your grant, can I pass to it through any part of your land? And if not, how is the actual road to be defined?
Solicitor General - I submit that I can give a temporary road until I can establish a permanent one; and I so apply this case, that the road in question is the temporary one, and the street now made, being equally convenient, is the permanent one.
Chief Justice - But Mr. Solicitor, does not the law give a right of road to every man to his premises.
Solicitor General - I submit that the right of way does not exist, if necessary, by any one particular way. If any other, equally convenient one, is provided, I submit that that becomes the rightful road. I mention this without fear of contradiction. I will shew that this road was never granted by the Crown to either party, that it was merely permission to pass until the road now completed was perfected, and that then this way should become a part of the property now possessed by Mr. McKay. I will shew that it was granted to Mr. Loane, and by him has been conveyed to Mr. McKay. Mr. Stephen here argued, with infinite force, upon the case, which he treated with great ingenuity, energy, and address, and made a great impression in favor of his client. We regret our limits prevent our inserting it, and some very important observations made occasionally in the course thereof by the Chief Justice. Mr. Stephen's address was of nearly three hours continuance, and all the way excited great interest and attention. Various documentary evidence was then exhibited; after which Mr. Gavin was re-called, to explain what passed between Mr. Evans, the Surveyor General, and himself. He stated that in 1827 or 1818 Mr. Evans stepped 4 paces from the fence now the wall of the premises occupied by the Colonial Secretary, and said, put up a post here and be very particular to limit your fence thereby. I did put up a fence from Argyle-street to Mr., Loane's store, being the road-way to Mrs. Kearney's premises, and it continued until it was removed by Mr. McKay.
Madame D'Hotman - I know Mr. Loane and Mrs. Kearney; I know the road in question; I know of no dispute about it; I heard Mr. Evans and Mr. Loane talking of it in 1819; Mr. Evans said, the road was Mrs. Kearney's and she must have it; I have known it these 12 years; Mr.Evans said Colonel Sorell wished Mrs.Kearney to have a road there; when Mr. McKay bought it he was well aware there was a passage; Mr. Loane never sold him any.
Mr. Sharland - I am an Assistant Surveyor; I was directed by Mr. Evans to survey the town; he instructed me as to the passage in question; he said it belonged to the allotment now Mr. McKay's, and that when the proposed improvements took place it would revert thereto, until then Mrs. Kearney could continue to use it; after this I still described these allotments as bounded by the road way, because the contemplated alterations had not been effected.
Cross-examined - I inserted the advertisement describing the allotment at the request of Mr. Kerr on the part of Mr. Loane; if no caveat had been entered, a grant would have issued in terms of the advertisement.
Arthur Conolly - Mr. Gavin and myself showed the premises to the Assessors; my house stood in Collins-street; I considered the road to be my property; it was given to me by Governor Collins, even beyond where the wall now stands, which is an encroachment; Governor Collins stepped out my allotment himself. Col. Sorell rode up ten years ago with Mr. Evans, and said Coholly I hope you have no objection to allow Mrs. Kearney and her cattle to pass through the road until Collins Street is formed and then she will have no further occasion for it. I considered I had a right to stop it up whenever I liked. Mr. Evans was present with Col. Sorell. I had cultivated the whole of the ground way long before it was a road.
Mr. William Morgan. - I know the premises; I recollect the old road; Mr. Wade allowed Mrs. Kearney a passage that way into Argyle-street; until a passage in Collins-street could be opened; Mr. Wade was my brother-in-law; I have heard frequent altercations between him and Mrs. Kearney about the passage-way, which Mr. Wade threatened to stop up if she did not act more neighbourly.
Mr. Falknor - I do not think the wall of the Secretary's Office yard, which bounds the road in question, has encroached, if at all, a very little; her front was to be in Collins-st., but the rivulet prevented her having any way but through Argyle-st., until Collins-st. was formed.
Mrs. Wade - I am the widow of the late Mr. Wade; I know all the premises in question; I lived there in 1808 and left in 1818; we used to go through the passage to Argyle-st.; we never had any body's permission to go through it; there were no altercations between my husband and Mrs. Kearney about the passage, but there were about the stores.
Cross examined - I know nothing of Mrs Kearney's rights.
Mr. Gellibrand replied. He stated that he was so exhausted after so long a day, so unceasingly occupied with this cause, that he was quite unequal to do that justice to his Client which his case deserved; he should confine himself entirely to a few points. First, that by the evidence of the Surveyor General few persons in the Colony possessed any title whatever to landed property in Hobart Town, notwithstanding the Hundreds of Thousands of Pounds expended thereupon. He commented upon the circumstances of the Government Survey Books affording no proof of the boundaries of any single allotment; and refe[r]red to the reference to the rights of the Crown made by the Solicitor General, which he contended had nothing whatever to do with the question between the parties. He urged the importance of the case to the public, inasmuch as upon the present decision depended the right of property of every man in the Colony. Mr. Gellibrand then went into the law of the case; and we really lament that it is quite impossible for a newspaper to do justice to a speech as able and impressive as ever was delivered in a Court of Justice. And certainly no two Advocates, in any court or in any country, ever more zealously and more ably exerted themselves for their Clients than did the Solicitor General and Mr. Gellibrand.
Upon the latter Gentleman sitting down, the Solicitor General rose to explain the manner in which he had made the reference to the rights of the Crown, referred to by Mr. Gellibradd.[sic] He stated that he had done so solely and entirely in his capacity as a private Advocate and in the performance of his duty to his Client, and declar[e]d that if he was to be precluded from so doing because he was Solicitor General, he would throw up his gown to-morrow morning, which, in such case, instead of being an advantage, either in comfort or professional emolument, would, on the very contrary, be a burden.
The Chief Justice interfered expressing his opinion that Mr. Stephen had only alluded to the Crown Rights in his private capacity as Counsel.
Mr. Gellibrand disclaimed any intention of a personal nature, but having considered the reference to the Crown quite uncalled for, he had commented upon it solely in that view of the subject.
Chief Justice. - I really can not sum up this case to-night. If you are exhausted, how must I be? If it was not for the web of law with which the Solicitor-General has thought it necessary to entangle this question, I should have treated it as a plain and simple case. I shall, however, devote to-night as much as possible of the little time left me for necessary refreshment, to the consideration of the case. But I must say, I cannot conceive on what possible practice the rights of the Crown have been introduced in this case? I am at a loss to understand why the Crown has been even named? What has the Crown to do with it? - and if so, on what pretence has Mr. McKay chosen to assume a right of so extraordinary a nature. I can no more conceive on what the rights of the Crown have to do with the case, than the rights of the Emperor of China. But I am quite satisfied that the Solicitor General made reference thereto solely in the performance of his duty as a private Advocate, and by no means in his official character.
Court adjourned to 9 o'clock this day.

Source: Tasmanian and Austral-Asiatic Review, 15 January 1830[2]

The Chief Justice. - I think it would be the most desirable course, that a verdict should be found for the Plaintiff, subject to future argument as to the Law of the case. Inasmuch as contrary to the impression which I had last night, I do now very much feel that the rights of the Crown are materially interested in this case. Because if Mrs. Kearney is herself a trespasser, it cannot be permitted that one trespasser should proceed against another trespasser, to defeat the rights of a third party. This I consider a very important part of the case, and I should wish it to be fully argued. I should wish that many of the facts be found by yourselves.
Mr. Gellibrand. - The Assessors must find some of the facts; such as the right of way.
The Solicitor General. - I humbly submit, that it would be a more desirable course, that a verdict be found by the Court, and the grounds of it stated, upon which it will be open to move, in such manner as may be necessary.
The Chief Justice. - Very well, then I will now sum up with that understanding. His Honor then went through the whole of the evidence as stated above, and commented as he proceeded upon the facts as they were stated by the witnesses. It is unnecessary to repeat these in detail, because they will appear in the argument which is to ensue. His Honor wet at a great length into the points to whether the road in question had ever been located by authority of Government, to anybody. "It is clear from Mr. Frankland's and Mr. Sharland's evidence, that no boundaries whatever are settled of many, if not most of the town allotments, and therefore the consideration of this part of the case, became extremely material. It appears that Mr. McKay wanted to have the road included in his town allotment; of course then, it could not have been before so included. It certainly would seem that the Government has not given possession of this road-way to either of the parties. It seems that on another road being formed, the possessors of the land on each side, closed up, taking each a part of it. But it does not appear by what authority they did so, or whether at this very moment, the road has been given by the Crown to anybody. The Plaintiff says, we claim a right of way, the property of which, is in the Government; and it is quite clear that the fee is in the Crown, and Mr. McKay has shewn no right whatever thereto. Neither has the other party. It seems to be still in the Crown. That even to this very day it is left open by the Government, to hear what their decisions are, and to decide thereupon.
Mrs. Wade's evidence is very strong, to shew that in her time, there was no claim whatever on the part of her husband to shut up this road. But then Mr. Fawkner says, that Mrs. Kearney's cottage was to be in Collins-street. But what right does that give to another party to step in and say, I will take possession, just as the other occupants have closed in before me. It is then material to consider what is the state of the question as regards the Crown. It appears that up to this moment, Mr. McKay had no more right to the road than I have. If the Government does not take away this road, what right has a third party to do so. The Court retired for two hours, and on their return the Chief Justice spoke as follows:--
We find a verdict for the Plaintiff, (not unanimously as to the amount of damages,) for ONE HUNDRED POUNDS. We leave it for you to settle between yourselves, at what period Mrs. Kearney first occupied her allotment. We find that whenever she did so, the old road way described by the witnesses, existed. That that road was used and occupied by her as a passage, without the permission of any of the owners or occupiers of the lands adjoining. We find that at the time of the survey of the town in 1824, it was then expressed by the Government, that Mrs. Kearney should have the use of that passage only until the Government should make new arrangements; but we do not find that she had any notice thereof, or that she consented thereto. We find that the Crown has neither granted, nor leased, nor given a possession, nor authorized possession of any part of the old road, to the occupiers of the adjoining allotments, between Mrs. Kearney's and Argyle-street. We find that Mrs. Kearney and others have encroached upon that road, without any authority for so doing. Lastley, that thie road-way has existed with the knowledge of the Government."
Some conversation then ensued between the Counsel for the contending parties, as to the points to be settled between themselves. The Essence of which seems to be how far the Rights of the Crown to the passage in question has been transferred to either. Upon this we apprehend the question will ultimately turn.

Notes
[1] See also Colonial Times, 15 January 1830. AOT SC 139/1 gives the parties as Catherine Kearney, a dairy-keeper, and David McKay. The case was ultimately nonsuited on 26 November 1831, AOT SC 139/2, p.8.
[2] See also Hobart Town Courier, 23 January 1830. The Colonial Times, 15 January 1830 noted that the two points of law to be decided were whether it was necessary for the plaintiff to prove a right of way against the crown, and whether the facts show such a right.