[land law, surveying - New Norfolk]

Bastian v. Bridger

Supreme Court of Van Diemen's Land

Pedder C.J., 16 March 1831

Source: Tasmanian, 18 March 1831[1]

BASTIAN V. BRIDGER. - This day this cause (by much, of the greatest importance of any which ever yet came before the Courts of either of these Colonies) came on for trial. It was in itself of trifling importance as respected the intrinsic value of the land in dispute, but the PRINCIPLE was of vital importance to the whole Colony! It was, shortly, whether the Assistant Surveyors have the power, without the authority of the Head of the Government, or even of the Head of the Department, to mark out new roads upon the property of individuals, where old roads have from the fullest extent of Colonial memory existed, and to authorize whoever they may chuse, also to so authorize unauthorizedly, to commit the indelable offence of erecting stockyards thereupon, at their sole will and pleasure. The Solicitor-General STEPHEN for the Plaintiff, and Mr. GELLIBRAND for the Defendant, eminently distinguished themselves and exhibited a display of forensic talent highly creditable to the Tasmania Bar. The close of Mr. Stephen’s reply will be seen in the full report of this vitally important case (which independent of the above question, involved others, and elicited facts which will be seen to comprehend the dearest interests of the Colony.) That gentleman made a public and most energetic declaration of professional independence most creditable to him in every consideration. The case occupied the Court until past midnight, and it will be finally decided tomorrow. In our next our readers shall have the very fullest report.

Pedder C.J., 16 and 19 March 1831

Source: Tasmanian, 25 March 1831

ASSESSORS - Captain Bell, Mr. Beamont, Counsel for Plaintiff, Solicitor-General, and Mr. Butler, The Defendant, Mr. Gellibrand, and Mr Jennings.

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Mr. Solicitor-General Stephen stated the plaintiff’s case. He first went through the written pleadings. The declaration contained four counts, but the defendant having pleaded that they were in fact but one, he should confine himself principally to the first. It charged the defendant with having on the lst of January, 1830, with force and arms, broken into and entered the close of the plaintiff at New Norfolk, and put up posts, rails, pales, and stalls, and thereby greatly incumbered the close, and prevented the plaintiff from having the use thereof as otherwise he could have done. The counts varied in their description of the spot in contest, but they were arranged so as to meet all possible description of it. To this declaration the defendant pleaded, first the general issue, not guilty, and then certain special pleas - that the close now is, and was, the close of the King, whereupon the said defendant, as the servant of the King and at his command, went as he lawfully might, the same close being the property of the King. The other pleas were to the same effect, justifying the trespass upon the ground that the place is a public highway. The replication of the plaintiff takes issue upon the general issue; and to the plea of the King’s command the plaintiff denies that the close is that of the King - also that the defendant is the servant of the King - nor did she commit the trespass at the King’s command. And as to the plea of justification, the plaintiff replied that the place in question is not a public highway. Then follows a new assignment of trespass, to which the plea of not guilty is joined. The Solicitor-General then addressed the Court nearly to the following effect. Although this case is not perhaps of much intrinsic importance, yet it is infinitely so as respects the public interests. The first notice which I shall take of the pleadings, is that in which the command of the King is set forth. Now it is obvious that when such an assertion as this is pleaded, it is necessary to state which King so commanded the defendant, whether the late King or the present King. If they shew that they have the license of the late King it will go to cover all trespasses committed in his reign - so also as to the present King. But the plea will not apply to the reigns of both Kings, and therefore whichever King they proved licensed them, they are unlicensed in their trespasses during the [the reign of ???]. I suspect the license they rely on is not that of his present Majesty, whom God long preserve, and therefore the license of the late King is no reply whatever to the charge. They plead then that the place in question is a public highway, - that such ran through it. We deny this. But even if it did, we assert that they have gone out of the highway and trespassed upon our land. We state that our property is bounded by a highway, and yet in defiance of our description of the place upon which we complain of their having trespassed, they unnecessarily refer to a highway of which we make no complaint. In order, however, to avoid all possible misconstruction, I have added a new assignment, in which I assert that they have not kept to the highway but have departed from it, and so committed the trespass we complain of. The facts of the case are as follows. Sometime ago, Mr. Bastian, the plaintiff, determined upon establishing a ferry across the river. In order thereto he purchased a piece of land on the north side of the river, adjoining the highway, purposing to erect the necessary buildings thereon, and knowing that the King himself (with respect be it spoken) could not himself trespass upon the highway. He got a license for his ferry, and obtained possession of all the land between the highway and the river. The defendant, Mrs. Bridger, seeing that this promised to become a good thing, determined upon out-manoeuvring him, and she accordingly applied to the Lieutenant Governor, stating the great advantage to the Government and the public, which would attend a ferry at the place she mentioned, taking care to carefully keep the plaintiff’s proposed ferry out of view, and that it should be supposed that she was actuated by pure public spirit, - ardent desire to benefit the Government and the public in short, that out of pure patriotism, she was induced to solicit permission to establish a ferry upon the property of the Crown. Here, Gentlemen, I must explain to you, that the road bends with the sinuosities of the river; in one place it comes down nearly close to the river, in another place it forms a large arch of a circle. (Mr. Gellibrand here offered to the Solicitor-General several charts of the place in dispute, and the neighbourhood, which had been prepared by the defendant, and upon which, after some discussion as to their accuracy, certain points were agreed upon as being those in question, and the charts were handed up to the Court). Mrs. Bridger’s request is referred by His Excellency to the Surveyor General, and by him to the District Surveyor, who, in order to carry into effect Mrs. Bridger’s pure and patriotic purpose, takes upon himself to turn the road form its old established course and to carry it round the arch of the circle I have mentioned. You will of course suppose, Gentlemen, that Mr. Bastian lost no time in remonstrating upon the act. And in consequence, His Excellency immediately ordered that the road should be made to return to the old course, so as to pass across the diameter, instead of round the arch of the bend, which the river there forms, as it had been made to do, to oblige this public spirited defendant. She then moves higher up; and some Surveyor in her interest having found out a late public order that all roads shall be sixty feet wide, took upon himself to determine, that all the land which adjoins to the road to the extent of sixty feet, on whichever side he himself chose to select, was in fact the road, and that if the river could be reached by these sixty feet, Bastian the plaintiff, could be dispossessed by his merely setting it out as the road, and Mrs. Bridger placed thereupon in his stead. This of course, you will suppose was a very strange method of proceeding, but nevertheless so it was; and Mrs. Bridger being put into possession thereof, she erects a stock-yard upon the point most convenient to her, and establishes a ferry between her own premises on the south side the river, and this so strangely acquired possession on the north. Now I assert that it is not in the power of the Government to change the course of the roads after they are once established. They cannot make a highway 60 feet wide, when it before existed of a different width, merely by a public order. The Government cannot, and I am enabled to state, it would not trespass upon private property.

The Chief Justice - Does not the Government reserve in all grants a right to make roads?

he Solicitor-General - I will read the reservation in that particular, from the grant, which your Honor will see is the mere saying the right to make a public road. - And that have been once acted upon, is for ever conclusive. This is a point of great public importance, and however it may be said to trench upon the privileges of the Government, which I assert it does not, I shall argue I trust with great confidence, I shall be able to shew that in General Macquarie’s time, this road existed at its present width, not exceeding certainly 30 feet wide; and I submit that if it is in the power of any District Surveyor to now extend it to 60 feet, he may make it a mile wide, by the mere effect of a public order, the description [???] by the river Derwent. Thus we have a right to every inch of land to the very water’s edge. There is no reservation on the banks of the river, and therefore no man can pass between the road and the edge of the river without trespassing upon us - the edge of the river being expressly described as our boundary. And such being the case, I assert that the Government cannot acquire any right thereto by making a road there, a road having been pr eviously made at some distance therefrom. And even in the case of roads. All such are the property of the public, and the Government cannot grant to any person the right to trespass even by throwing stones or rubbish thereon; much less by erecting upon them any building whatever. I shall prove to you that between the river and the road there is a considerable space upon which fruit trees, shrubs, and corn have been, and some of them are as this very time growing. I assert that only 20 feet can be taken for the highway, and that no Government order can make it more. Indeed how could it be decided on which side the road the additional 30 feet are to be taken? It suits the purpose of the District Surveyor, who thought proper to set out the additional thirty feet, to set them out on the side towards the river. I would have readily rested this case upon the dry question of property, whether it is or is not the property of the grantee; but the plea, of the defendant have set up a right under the King as his licensee, accompanying this with starting other objections of great public importance, I wrote to the defendant’s counsel, requesting to be informed whether it was intended to impeach the validity of the grant, and I was answered that it was intended to take all possible advantages, which could be obtained. I shall then object to this pretence of license, and shall require it to be proved, if any they have, to be the license of the present King -- a license since the 26th June last, at which time it is judicially known that the late King ceased to reign, the Court having altered the form of its writs even before the official notification of the death of the late King was made by the local Government. If they are the licensees of the old King, they cannot recover for all trespasses committed in the present reign, and so in the converse. They do not plead two licenses, nor a continued license in both reigns, but one of the King - of one King, and therefore they cannot be licensed by both Kings. I am drawn to this course by that which the defendant has given me reason to understand will be his and I am satisfied it cannot but avail me. I have now stated to you, Gentlemen, the facts of the case which you have to try, I have shewn you the extent of the patriotism of this defendant, and it is for you to shew your sense of it. If any farther proof of its real nature was required, it is the fact that no sooner had she obtained the advantages which have caused the present action, than she let the ferry, which she had obtained permission to establish solely in reference to her pure public spirit, to another person - so much for her great anxiety for the public good. The Solicitor-General then apologised for the time he had been necessarily compelled to occupy in stating thus much of his clients case, adding that he had reserved some very important parts thereof for his reply, in order to ascertain what was the real nature of the defence, which at present could not distinctly be understood, judging of it, as alone he now could, from the pleadings.

Alfor Hansen. - I am a shipwright. I have lived at Mr, Bastian’s for the last 14 months; I know the place where Mrs. Bridger has a ferry (Mr. Gellibrand admitted that all what had been done of the trespass complained of, was done by Mrs Bridger’s direction - by the erection of stock-yards, and that the passage of sheep, &c. over the water was done by her order.) I know the points of the compass. Mrs. Bridger’s stock-yards lie as nearly as possible N. and S. in reference to the river. (Here charts were exhibited mutually admitted to be accurate, in which the locus was pointed out.) I have known the place for six years back; I was employed building a boat and a punt for Mr. Bastian. I helped to clear the bank outside the road towards the river, perhaps from half a mile to three quarters. I began it in the February of the last year; James Mathers helped me. The road is to be seen as plain as can be. Mrs. Bridger’s landing place is upon Mr. Bastian’s ground - upon the land he rents. Mrs. Bridger’s stock-yard is upon the road, and one part of it upon Mr. Bastian’s land. I have seen cattle and sheep frequently land there. (Mr. Gellibrand here admitted that the stock-yard was erected in May last.) Mrs. Bridger’s punt began to work first. I have seen sheep and passengers cross for more than 6 months; from the nearest part of the stock-yard to the waters’ edge is 20 feet. The road is plain to be seen all along. The distance between the road and the river is nearly the same all the way upwards; the stock-yard is about 40 feet square. Provided there are 60 feet for a road, there are 3 feet of the stock-yard on Bastian’s land; but if there is less than 60 feet, the difference is Bastian’s; part of it is on the road and part of it on Bastian’s land. Last Christmas twelve-months I gathered raspberries where the stock-yard now stands. I do not think the road can be made nearer the river than it is without endangering people’s lives. There are 16 peach trees close to the stock-yard.

The Chief Justice. - Would not the agreeing upon the accuracy of the map save all this trouble?

Solicitor-General. - I will admit this chart produces, signed George Woodward.

Witness. - About a twelvemonth ago,[?line missing?] Bastian’s the stock-yard now stands.

James Roach. - I live at New Norfolk; I have lived there 13 years. I know the place in dispute. Mrs. Bridger’s stock-yard is built on the banks of the Derwent; a public road runs thereabouts. I should think part of the stock-yard is on the road; there is a space of from 30 to 40 feet upon the average between the road and the river - it is so where the stock-yard is built. The road is quite plain to be seen, it is 30 feet wide. The road could not with safety be carried nearer the river, but it could be on the other side.

The Chief Justice. - If they shew that the Government has ordered a 60 feet road, they must shew that the Government has set it out, and where.

Solicitor-General. - I submit to your Honor, that the Government setting out a road for a highway, does not make it a highway.

Witness. - I know that Abraham Hands formerly possessed the place where Mrs. Bridger’s stock-yard and landing place now is and also the bank above and below for about 40 or 50 yards; he cultivated it; he then left it to Mr. Bastian (Lease produced and proved.) Mr. Bastian has possessed it since and before this writing was drawn up. I have seen his cattle feeding on it. I have seen raspberries growing in the stock-yard - there were on Sunday last, that is below the road. I have seen Bastian’s family gathering peaches below the stock-yard. I have seen Mrs. Bridger pass over sheep and passengers at this ferry constantly for the last 6 months, - I remember Cassaway occupying the land 10 years ago - he is dead; he had it from Abraham Hand. There are 20 feet from the lower end of the stock-yard to the river; I think the stock-yard is 20 feet wide. There is no doubt what ever of the road; it is plain enough; one side of the road is fenced, and at 30- feet from thence to the stock-yard. I never knew the land let to Bastian by Hand to be used as a road, or any part of it, there never was within these 13 years back. There could not be a road with safety, not even to oblige Mrs. Bridger - Mrs. Bridger’s ferry is a few hundred yards from Bastian’s - it must materially injure it.

Examined by the Chief Justice. - I have known it occupied by Hand for 13 years.

Cross-examined. - If the road was to be widened on the other side it would interfere with Hand’s fence and garden. I do not know the road at Hand’s is 60 feet wide, nor all the way. I have seen people pass backwards and forward’s from the road to the river; the distance from Hand’s fence to the river; I believe to be 70 or 80 feet.

Mr. Charles Baker. - I am a witness for the defendant; I am her nephew. I am also her managing agent; I managed the ferry when it was first established. I recollect having had repeated conversations with Abraham Hands about the slip of land in question. I applied to Mr. Hansen about it, and he informed me he had let it to Bastian, but it was not the spot where the ferry is; it was Hansen’s own land. Mrs. Bridger’s ferry is half a mile from Bastian’s; the ferry is let for £60 per annum. Mrs Bridger finds the punt and keeps it in repair.

Cross-examined. - There is another ferry lower down; we cross at our ferry much of what went there. I applied to the Government to assist Mrs. Bridger in making the ferry. I was present when the line of road was marked out by the Assistant Surveyor, Mr. Sharland; it was on the 23rd April last. Mr. Sharland said the road took its boundary from the margin of the river - I think it began at Hansen’s. The road was laid out in a line 60 feet from the river; it went up the stock-yard by Mrs. Bridger, I had Mr. Sharland’s authority to erect such stock-yards as might be necessary, allowing a sufficient distance for the road which marked out the boundaries. I took no possession but what he gave me on the 23rd April. - Hand’s house is just opposite the stock-yard. Our punt commenced working the 14th May - Bastian’s not for four months after.

Re-examined. - All the applications for the license were in writing. Mr. Sharland marked out a road at that spot 60 feet from the river; thereby stopping short in the very middle of the existing road; these 60 feet stop in the very middle of the road in one track; the nearest track; there were two sumps which divided the tracks; any person passing would conclude that the stumps were in the middle of the road.

The Solicitor-General here asked whether the slip of land had ever been used as a road.

Mr. Gellibrand objected, as the question did not arise out of the cross-examination.

The Solicitor-General stated that it did, because the witness had stated, that Mr. Sharland had set out the road, and surely it would not be contended that he had a right to make the road at his pleasure.

Witness. - I have never seen persons pass along the slip of land, but there was nothing to prevent them.

Solicitor-General. - Nor is there to prevent me passing through your garden.

Witness. - Yes! I would.

Solicitor-General. - So would I have prevented Mr. Sharland, if I had been Mr Bastian.

Abraham Hands. - The land on which Mrs. Bridger’s stock-yard stands is mine; I bought it from John Holland; I have more land adjoining it; my own grant; they front the Derwent; I let my front slip to Mr. Bastian; I have known the land 18 or 20 years; the ground I let to Bastian is bounded by the road side and the water side; I have never known the road run other than it does; it was a footpath from the time we settled; there has always been between 20 and 30 feet from the road to the edge of the stock-yard; I have cultivated that very land about 9 or 10 years ago; I recollect reaping it and sowing it; Cassaway occupied part of the same slip lower down; Richardson gave me £10 a year for 5 acres of it; I am to get £5 a year from Bastian for the whole slip, from the south side of the public road to the water’s edge; about a year ago Mr. Baker applied to me to rent it; I think he said for himself, but I cannot rightly say; he said, "Mr. Hands have you any objection to my landing a passage here for the punt;" I told him I could not do it, for I had promised it to Mr. Bastian; Bastian has set his men to work and cleared it; it is part my grant and part my purchased land; about 40 rods of one and 80 of the other; the purchased land joins Hanson’s;

Cross-examined, - The road was for a long time only a foot-path; the cart track is not so wide as the common road; I had not signed the paper as I know of when Mr. Baker applied to me, but I had promised it, and I told Mr. Baker so; you may as well take my grant as take that piece of ground; it belongs to my grants I say it does, and to the half of the river too, [???] I have a right to it; I did not fence in the river, because I had no occasion to it; I did not cultivate the land south of the road to the river.

Re-examined. - The corn grew on the upper end of it; I cultivated it to very near my garden fence.

By the Chief Justice. - I never cultivated the lower part of the land except with cabbage plants and the like; I cultivated down to very near my garden fence; it runs in a narrow strip about half an acre altogether to the stock-yard.

Andrew Downie. - I am acquainted with the neighbourhood of New Norfolk since Dec. 1822; I know the spot in question; on the lst Jan. 1823, it had a crop of wheat full of wild oats; more than 100 yards below it and 20 or 30 about it; there is a row of peach trees now standing on it; no road could at present be used between the stock-yard and the river, it is so uneven.

Cross-examined. - If the road was widened towards the Derwent, it would require no pulling down of fences, except the stock-yard; on the other side fences would have to be removed.

Mr. Brooks, Coroner of New Norfolk, confirmed the testimony of the foregoing witnesses.

Upon cross-examination he stated that the road had been widened all the way from New Norfolk to Pander’s, which is beyond Hands’s; it is now 35 feet in some places, in others 60 feet; I think it is 60 feet wide where it is fenced in with post and rail fence; I think all the new road marked out appears to be about 60 feet wide; the line of road from Mr. Parker’s form to New Norfolk is -

The Solicitor General. - I object to this, really alone to save time; I cannot understand what this can have to do with the case. If other persons chose to suffer roads to be made through their lands, it does not follow that we are to do so.

Mr. Gellibrand. - I ought to be in the situation of the Solicitor-General in attacking the Survey office. The Government in improving the roads, has also improved that in question by widening it as it did others.

The Solicitor-General. - I am not attacking the Survey office, or the Government; but in the performance of my duty to my client, I am attacking the conduct of some of its officers who have exceeded their powers.

John Hansen. - I know the place in question; I have land adjoining. The road was not quite so wide some years back as it is now. It now varies in width - it is narrower in some places, and wider in others. I have seen wheat growing where the stock-yard now is. I have let a part of my land to Mr. Bastian. I know of peach and raspberry trees growing on Hand’s land, let to Bastian, a little below the ferry. I knew people to ask Mr. Hands permission to gather them when ripe; there are plenty on both sides the stock-yard and some I saw growing in the stock-yard, and some next the river.

The Solicitor-General here closed his case for the plaintiff.

Mr Gellibrand then addressed the Court for the defendant to the following effect. It is very true, as has been stated by the Solicitor-General, that this question relates but to a very small piece of land. It is equally true that it involves a consideration of vital importance to the Colony, as it includes the question to title of every grant of land which he has ever yet issued, all of which I shall have occasion this day to shew are so essentially defective, as to require the immediately application of some Legislative provision to do great an evil, and the person who may provide such, will be entitled to the thanks of the whole Colony, I shall have occasion to draw your attention to the pleadings on this case, and I regret that instead of being, as all such ought to be, plain and intelligible to every man, they are necessarily encumbered with legal subtleties and technicalities, which tend to confuse and confound every question, while they are, as they must, be under the present system, of necessity had recourse to. I must request of you Gentlemen that you will not permit anything which has been stated by the Solicitor-General, to induce you to assume that the rights of the Crown are at all concerned against us, on the very contrary, we have acted solely and altogether under the authority of the Government, and I should therefore have supposed that we should this day have had the support and assistance of the law officers of the Crown, instead of finding as we do, the King’s Solicitor-General acting against us. I shall shew you by a very brief statement that in all we have done, we have acted entirely and altogether under the authority of the Government, and that therefore we cannot but be fully justified thereon. The facts of the case are as follows. Mrs. Bridger addressed a letter to the Surveyor-General, Mr. Frankland, soliciting to have permission to land at certain points mentioned in her letter, which being for the use of His Majesty’s Government, and for the benefit of the public at large, she trusted would be granted. Mr. Frankland ordered the District Surveyor, Mr. Sharland, to report thereupon, and he reported in favour of the application, on several grounds, stated in his report. Upon this Mr. Frankland made known to Lieut. Governor that there was no objection to Mrs. Bridger's application, and a map of the place was prepared by Mr. Sharland, in which the place to be appropriated to Mrs. Bridger was marked, which was sent to the Lieut. Governor, and which His Excellency having approved was returned to Mr. Sharland with orders for him to act thereupon; Mr. Sharland being thus ordered to proceed, takes his men, and marks out the road along the edge of the Derwent. Now it is remarkable that the corner point of Hand’s Land is exactly 60 feet from the bank of the river. There Mr. Sharland puts in his post, and 60 feet being the regulated width of the road, he sets it down as such accordingly. Now here is a road regularly marked bout by the Government Surveyor with all due formalities, and which of course points out, the road defined not by a parcel of zig-zag cart ruts, which may be or may be not on the real line of the road. Mr. Sharland having done this, wrote to Mr. Hands, telling him that it being found expedient to allow Mrs. Bridger’s to have a landing place on the South Side the Derwent, the place for such had been decided upon and marked out accordingly. This was all as might be supposed strictly right and accurate. Mr. Bastian who had rented some of Hands’ land expressly to throw difficulties in the way of Mrs. Bridger’s new Ferry, then wrote to the Lieut. Governor complaining of the new arrangements. His Excellency referred it to the Surveyor General, Mr. Frankland, and afterwards to the District Police Magistrate, Mr. Dumaresq, directing them to inquire into all the circumstances and report upon the whole affair. They did so, and after seeing Mr. Bastian, the plaintiff, and going over the land in question, they reported in favor of Mrs. Bridger’s application. Mr. Dumaresq particularly observing that it appeared to him that Mr. Bastian’s application originated in a wish to interrupt Mrs. Bridger’s Ferry, in order to prevent that fair competition by which the public is always so much benefited. Upon this His Excellency gave his final approbation to the whole and gave it in writing, that he thought Mrs. Bridger’s application ought not to be interrupted; accordingly she proceeded in her business as a Ferry Woman, and she had every right reasonably to expect to have the Law Officers of the Crown in her support, upon an occasion like the present, when she is brought before this Court for proceeding upon the orders and by the authority of the Government. Such however not being the case, her defence has fallen to me, and it is this, I assert that the whole soil of the Island is rested at this moment in the Crown, that not one of the Grants which have ever issues, have had the effect of alienating one inch of the soil, but at this very moment it is all vested in the Crown. That we have possession from the Crown of Land, which being the property of the Crown, we are thereby rightfully possessed of, and that it is not us, but the Plaintiff who has committed the trespass; we have the authority of the King for our proceeding, and we are thereby fully borne out in all we have done. It has been objected that our plea does not state from what King we derived our authority - whether from the late or the present King. To this I answer, the King never dies, the individual wielding the sceptre dies; but the Kingly office never, and that thereupon the authority of one King is the authority of all. I assert under the direction of His Honor, that as the King’s servant, we are entitled to act as we have done upon the King’s soil, which is not in the person claiming it, but that we having a license from the King to possess it, are fully entitled to it. The plaintiff has never had the soil lawfully conveyed to him; the soil of the whole Island is now I assert vested in the King from whom we have a license, which renders our title unimpeachable. This is one great ground of our defence, and I consider it unanswerable. But even supposing that we consider the question merely in reference to the place being a high road. It is not to be presumed that because part of a road is impassable, that it does not the less form such part of the road. If this was the case, there would be few high ways at Launceston; the greatest part of the streets of which are at times impassable. I shall shew to you that every public road in the Island is, or ought to be, 60 feet wide, and if the Government has not a right to make them so, why the most important improvements in the Colony must stand still. It has been asserted by the Solicitor-General that the Government having once set out roads cannot afterwards alter them. If such is the law, I can only say that the most essential improvements, those most necessary to the public convenience must be at an end. All that Mr. Sharland did as respected the plaintiff was to alter the road from one particular point to another, not to change the general line of road, but merely to render it more convenient to the public. It has been asserted that the change of road should not have been as it is on the side where no public inconvenience is sustained, but that it should have gone on the other side, in order to which fences must have been taken down, gardens thrown open, and much private injury sustained. Which of the two is the most proper, I think requires not a word of remark. That the Government had a right to make this road is certain in every consideration, not only because, as I have already stated, the whole soil is at this moment vested in the Crown , the papers called grants being nothing more than permissive occupations, but also because in all those very permissive occupations there is an express reservation of right to make roads and therefore if a road is once made it is from thenceforward a legal one. It is of no consequence that the Surveyor should bring 100 men and Macadamize it, I contend the very moment he had passed his chain over it, he makes it a legal public road. This is what Mr. Sharland did, and he then told Mrs. Bridger, this is a part of the road, and I authorise you to erect your stock-yard upon it.

he Chief Justice. - I cannot understand this. Do you mean to argue that the Crown having a right to dedicate roads to the public, has a right to allow persons to erect stock yards upon them? I cannot suppose this, because, although the road is dedicated to the public, yet the right of soil is in the person to whom the land belongs.

Mr. Gellibrand. - I contend that the soil of the whole Island is in the King, and that no one individual possesses a shadow of right to it. I submit that your Honor is bound to take judicial notice that all the land in this Island is vested in the Crown at this moment.

The Chief Justice. - I shall do no such thing, I shall expect you will produce some evidence of so extraordinary an assertion.

Mr. Gellibrand. - Your Honor knows that this Colony being of British origin, the whole soil is vested in the King until it is granted away, and that you are bound to take judicial notice that it is still vested in the King until evidence is produced that the King has legally parted with it, and I asserted that the Crown has never so done hitherto in any single instance; I admit that if the freehold had passed by the papers issued as grants, that the whole grantee, supposing the grants to be good for anything, which I contend they are not, and therefore the whole soil is still vested in the King. We have the King’s authority for what we have done, and ours is the first right. But even in the case of a valid grant, the right of enjoyment is no longer possessed by the grantee in the case of roads; he may possess the freehold but he does not possess the right of enjoyment of it.

The Chief Justice. - It has been determined that whenever any land has been dedicated to the use of the Public, it cannot be resumed.

Mr. Gellibrand. - But your Honor will perceive that in this case it is sought by the plaintiff to resume it, upon which very ground I contend that he cannot sustain this action. If the making the stock yard is any offence it is one which is not cognizable by action at law, but by indictment.

Chief Justice. - Yes. But not so as respects the injury consequent upon it.

Mr. Gellibrand. - I submit that a lessee cannot maintain an action for such injury, although the person in whom the freehold is may; the person who owns the soil does not, in the case of roads, hold the enjoyment of it. As he therefore only parts with the enjoyment of this land to his lessee, the latter cannot sue for injury sustained by depriving him of what he never possessed. No person can maintain an action for damage done to a freehold but the person in whom the freehold is vested. The right of the lessee is supra, not infra. But I contend that there is no right whatever now existing out of the Crown, but what we possess by our license, I submit that your Honor is bound to take judicial notice that the soil of the whole Island is at this moment vested in the King, in as much as it has never legally divested itself of any single part of it, and habit is at this very moment as completely and entirely in the possession of the Government here, as if it had been conveyed by the express words of an act of Parliament. That point being established as I contend it is incontesably, I shall proceed to call the officers of the survey department to prove that the Crown has given us possession, and I shall then expect to receive your verdict, acting as we have, only by the command and with the authority of the Government.

Mr. G Woodwood - I drew the plans produced from actual measurement. They are correct. The road at the place in question is a bush-road - a track. The roads as marked out by the surveyors are 60 feet wide. I was in the Survey Office. I have marked them out myself. As far as my experience goes they are generally marked out 60 feet wide. There has been a Government Order to that effect. The alteration of the road by Mr. Sharland would make it nearly straight from Hand’s Point to Bastian’s. The road from New Norfolk to Bastian’s has been laid out and is 60 feet. Hand’s fence to the edge of the Derwent is 77 feet - from the old road to the fence is 17 feet. I have surveyed the ground. The piece of ground between the Derwent and the cart track is capable of being made into a road. If it is necessary to widen the road, I should widen it on the side of the Derwent, because the land left out would not be worth fencing in.

Cross examined. - There is no imaginable piece of ground which could not be made into a road at great expense and with great labour. The road is nearly straight - there is a bend but it is not very considerable. The road could be made by increasing its width on the right at a much less expense. I do not mean to say that the left side of the road is at present a road - when I use the expression that it is capable of being made into a road, I mean into a passable road by the labour of a gang of men. I mean by the old road - the track now to be seen. I consider it to be entitled to that appellation from its being at present the only road or track. When I spoke of the Government Order I believe it refers to future roads, not to those now existing.

Mr. Sharland. - I am District Surveyor at New Norfolk. I received directions from the Surveyor-General, in consequence of which I made a report in writing to Mr. Frankland, as to the line of road in question. It was sent to me back again with Mr. Frankland’s signature and the Lieutenant Governor’s.

Solicitor-General. - I admit that the report, with the writing and signatures upon it, is what it purports to be.

Mr. Sharland. - These are the initials of the Surveyor General affixed to a memorandum that I was to act upon my report, I did act upon it, I went to the spot and defined the boundaries of the road. It was at the latter end of April, I marked the road, extending it 60 feet from the banks of the river. I commenced near Hands, and went to near Thatcher’s. The plan produced contains a true representation of the old cart track and of the road, as marked out by me - it was from the corner of Hand’s garden to the end of Hanson’s house. The stock-yard erected by Mrs. Bridger is on the road. I do know by whose authority that stock yard was erected - it was by mind.

The Chief Justice. - That is certainly not the way to put the question, it assumes a fact which may not exist.

Solicitor-General. - I assure your Honor that is my objection to the question - there is the Surveyor General, who assures me he never gave any such authority as that stated.

Mr. Sharland. - I gave Mr. Baker authority to put up the stock-yard. I did it in my character as Assistant Surveyor, on the day I marked out the road. I authorized him to erect a yard, and I marked out where he could do so, directing him what space to allow for the road, so as not to impede the passage. I have seen it since it has been put up - it is conformable to my direction. I reported to the Surveyor-General what I had done. It was in writing. I produce it (read) dated 17th May. "In reply to your memorandum, requesting Mrs. Bridger’s papers be transmitted, I shall obey them as soon as possible. The situations I have marked are indispensable to [se]cure a good passage of the river. Mrs. Bridger has for the present established her punt at the lower station, but she requests to be allowed to occupy both. I have marked out the road so as that the stock yard shall not interfere with the passage.’ (This was the purport of the report as correctly as we could catch it from the hasty manner in which it was read.) It is impossible to have a ferry without a stock-yard I never saw Mr. Badstian at this time. The road remains as I left it. I drove holes in the ground, and I think I put up some pegs. The road would be nearly straight from Hand’s to Bastian’s. The proper width of the roads is 60 feet - I have never marked out less. The width of the road from New Norfolk, where it is fenced in, is generally 60 feet.

Cross examined. - The width of the road was increased by me to 60 feet - I did so in pursuance of a Government Order. Order read - 26fh Feb. 1827, which ordered that all persons enclosing their lands must leave a clear space of 60 feet but was not to operate retrospectively.

[The Solicitor-General then produced another Government Order, in which roads were ordered to be left 30 feet, dated Nov. 4, 1824, where in public roads are to be 30 feet, and 8 feet on each side for a footpath, and all persons acting otherwise will do so at their own responsibility.]

Mr. Sharland. - I never recollect seeing that Order before. I do not know that Mr. Wedge about that time set out that road according to that Order. He set out a road on this side of it, but it was afterwards altered. I have represented in the plan which I submitted to the Governor the road as coming down to the edge of the river; any person would suppose so from the manner in which I have represented it. At that time the line of road had not been marked out 60 feet - it had not been marked out at all.

Solicitor-General.- Why then did you represent the road as being bounded by the river?

Mr Sharland – I did so because I though it ought to be so.

Solicitor-General. - Then you did so upon your own discretion, and without any authority from the Government.

Mr. Sharland. - I did.

Solicitor-General. - My only wish is, without impugning you, to shew, in justice to my client, that you have acted without any authority whatever.

Mr. Sharland. - The cart track is about 30 feet wide at the stock yard. It is above it probably. There is certainly room for three carts to pass on a road 30 feet wide - 18 feet would allow three carriages to stand together. To see three carriages passing together would be a very extraordinary spectacle here.

Solicitor-General. - In your report you made it appear that the road went to the edge of the river.

Mr. Sharland. - I did.

Solicitor-General. - You kept back from His Excellency every thing as to any private property being interfered with.

Mr. Sharland. - I did.

Solicitor-General. - Do you not admit, by your report, that the road as it then existed, did not extend to the water edge at the lower point?

Mr. Sharland. - I do.

Solicitor-General. - Why then does it make it extend there at another place, when it makes the road circuitous?

Mr. Sharland. - It is not more than 10 yards circuitous.

Solicitor-General. - Upon the return of your report, approved, you marked out a new road - perfectly new to the public.

Mr. Sharland. - I did some part of it.

The Chief Justice. - There is 17 feet too on the other side of the road.

Mr. Sharland. - I commenced at the river, and did not diverge, in order to keep the road straight.

Solicitor General. - What does the expression in your report of the establishment of a ferry mean?

Mr. Sharland. - I mean the construction of a new road.

Solicitor-General. - Do you not mean a boat to carry passengers and the establishment of such?

Mr Sharland. - I consider it something more I consider it necessary to give every means of supporting it on each side. I did not know what it was unlawful to affix any thing upon a public highway if the Governor assented to it.

Solicitor General. - What! upon a public highway?

Mr. Sharland. - Yes. My letter necessarily implies that the road being marked by me on the banks of the river, was so marked for the first time.

The Chief Justice. - Do you mean that the road is 60 feet wide all along?

Mr. Sharland. - All the new fences are put up so as to have the road that width.

Mr. Gillibrand now applied to have the correspondence read, which was done by the Registrar as follows:-

Copy Correspondence

Dated New Norfolk, March 4, 1830

Sir. - Having obtained permission to establish a Ferry across the Derwent in this settlement, I beg leave to request the favor of landing on the North side of the river, adjoining the highroad. I take the liberty of submitting for your approval a place on Hand’s grant, near to Chamber’s east side line, - another adjoining Hanson’s land and Chamber’s west side line. The latter place is the best adapted for a Ferry, the Derwent being at that place about 90 yards wide. This Ferry being intended for the use of His Majesty’s Government, and general accommodation, will, I trust, obtain the privilege herein solicited.

I am, Sir, your very obt. Servt.

ANN BRIDGER

To

G. Frankland, Esq

&c. &c. &c.

It is generally admitted that a Ferry where it is proposed by Mrs. Bridger, would be a great public accommodation, especially to those persons wishing to go from the Plenty (or from that direction) to the Clyde it would be a saving of nearly 6 miles; besides the convenience of 2 punts would be very great, for, I have known a trifling accident has frequently delayed the working of the present punt for a week together during which period no boats could cross the river. I do not perceive there would be any difficulty as to the first place supplied for by Mrs. Bridger, it being at present part of the main road; the other place, next to Hanson’s hut, is by far the best, but there is a small piece of ground of about 40 links between the road and the river, which it appears a person by the name of Bastian has rented, evidently with the idea of preventing the establishment of the punt. I presume the Government can claim a right of public way across the Derwent at this point, and in that case there would be no difficulty in establishing the Ferry; but, if the Government cannot claim this piece of ground for a new road, still by making an alteration of 40 links in the present land, it would extend to the water’s edge, and then, as a matter of course, no obstruction could be offered by the holders of land to landing on the main road. The spot in question is at the upper boundary of a great originally to R. Chambers (District, New Norfolk,) but at present rented to H. Anson from Cpt. F.G. Read, who dies not offer any obstacle.

W. S. SHARLAND.

5th March

The enclosed plan of the ground shews both situations alluded to by Mrs Bridger; at the point A on sketch is the best situation, but where there is at present a piece of ground of a about 40 links between the road and the river; the point B is the other situation, but it has not the advantage the first has. The dotted lines at point A shew how the road might be altered so as to pass close to the river.

12th April W.S.S.

____

I do not perceive any objection to permission being given to Mrs. Bridger to construct a Ferry at the point A or B.

G.F.

April 19th

Approved, and the Surveyor-General will be so good as to give effect to the arrangement.

Sir. - I am instructed to acquaint you that it has been found expedient to permit Mrs. Bridger to establish a public Ferry across the Derwent in front of your land at New Norfolk, on the North Bank of the Derwent; the situation which has been selected is marked out, and has received the approval of the Lieutenant-Governor.

It is not necessary to interfere with any of your improvements or fences, as the road, which extends 60 feet from the Bank of the River, will afford adequate space for any yards, &c., which may be required for establishing the punt.

To:

Abraham Hands, New Norfolk.

~ ~ ~ ~

D

Dated New Norfolk, 5th May, 1830

Sir. - I have the honor to enclose to your Excellency, a copy of a letter, addressed by Mr. District Surveyor Sharland, to Mr. A. Hands, of New Norfolk, and conceiving that the establishment of a ferry, as therein mentioned, would be an invasion of my property to my most serious injury, for the mere purpose of benefiting another individual. I have thought it right to address your Excellency on the subject.

I am the holder of the land alluded to in Mr. Sharland’s letter, which is at the north side of the Derwent, at New Norfolk, as a tenant to Mr. Hands, and I am possessed of land immediately adjoining, where I carry on the business of an inn-keeper. Some time since, intending to establish a ferry and punt across the Derwent, I purchased land on the south side, whereon to erect stockyards, and for a landing place, and on the 12th February last, I procured a license to erect a punt.

Subsequently to my publicly declared intention of establishing a ferry, and as I best recollect, after I had obtained a license, I was informed that Mrs. Bridger of New Norfolk, also intended to form one from her own land on the south side of the Derwent, to the land I held of Mr. Hands, at a spot higher up the river, where its north bank bends out a considerable distance; at this time the public road on the north side of the Derwent went in a straight line across the bend, leaving a large space between the road and the river’s bank’s; lawa trthea[?] if that lady carried her intentions into effect, and encroach upon my property, in erecting stock-yards, and making a road through it to the public road, and that by means of that encroachment, she might materially injure my ferry, not that I disputed Mrs. Bridger’s right to establish a ferry, merely because it might prejudice my business as ferryman, but that I objected to her availing herself o my property as a means of working that prejudice; I gave her to understand that I would by every legal means resist her intended trespass.

About a fortnight since, the public road which as I before said, ran straight across the bend was by Mr. Sharland’s direction diverted and made to take the circuit of the river’s edge; by means of this alteration, a serious injury has been done me, as I am deprived of a useful frontage on the river, for no other purpose than benefiting Mrs. Bridger, giving her an advantage at my expense, which without the aid of the Surveyor she could not have obtained.

That the public are not benefited is evidence, the road being lengthened by the alteration, and the spot Mrs. Bridger has chosen, is in no wise more eligible than the place I have selected. Beseeching your Excellency’s consideration of the above statement, and your interference to prevent the completion of a manifest wrong.

I have the honor to be, &c.

N. BASTIAN.

17th May, 1830

Unless I were to see a correct plan of the situation alluded to, I could not decide upon this representation; it would be better, therefore, to refer that to the Surveyor-General, in order that he may fully report upon the case. I was not in the least aware in the acceeding to the request of Mrs. Bridger, that I was interfering with this applicant; it may be that no injustice is done, but I should wish to have an assurance from the Surveyor-General, by whom I think Mrs. Bridger’s application was recommended.

Sir, - In reply to your communication of the 10th inst., requesting that Mrs. Bridger’s papers relative to her ferry, be immediately transmitted; I beg to inform you that I have sent to New Norfolk, (where I left them,) and your instructions will be attended to with as little delay as possible. With reference to this ferry. I have to acquaint you that it appears that both situations pointed out by me as A and B are indispensable to ensure at all times a good passage across the river, during the summer, when the river is low, the lower point is the most advantageous, but in the winter, the upper station is the only one which could well be made use of, on account of an eddy which there is in that part of the river, and which would much facilitate the crossing of the punt during the floods. Mrs. Bridger has for the present established her punt at the lower station, but begs that permission may be allowed her to occupy both situations. I have marked the road along the bank of the river, by which means the occupation of these stations for a ferry, will not encroach upon the land through which the road passes, beyond the established limits of the road itself.

I have &c. your obedient servant,

31st May

The Surveyor-General requests that the Police Magistrate of New Norfolk will have the goodness to report on the conflicting claims of the parties in question, and whether he thinks Mr Bastian’s complaint is well founded.

To. G. FRANKLAND

E Dumaresq, Esq.

~ ~ ~ ~

F

Notwithstanding Mr Bastian’s representations, it seems to me both from these papers and from inspection of the ground, that Mr. Bastian is altogether influenced by a wish to abstract Mrs. Bridger’s punt in favour of his own - the small piece of ground is so trifling that it might, except from Mr. Sharland’s actus measurement, have been considered the part of the high road. To obstruct the establishment of Mrs. Bridger’s punt at the point in question, would, I think, be unnecessarily opposing a fair competition between the parties interested; it appears the proprietor of the land, Captain G. F. Read, makes no objection. The assertion in Mr. Bastian’s letter, that the public are not benefited is incorrect, the road can hardly be said to be lengthened, the alteration in question being so trifling the old line of road is at no point altogether departed from, and the public has the advantage of another crossing-place over the river.

E. DUMARESQ

14th June

Submitted for His Excellency’s perusal.

15th June G. F.

Mrs. B. I think, should be permitted to carry her plan into execution.

G. A.

17th June

~ ~ ~ ~ ~ CONTINUED

Notes

[1] See also Colonial Times, 22 April 1831; Hobart Town Courier, 19 March 1831. AOT SC 139/1, p. 84 gives the parties as Niels Bastian and Ann Bridger. Bridger was a successful businesswoman at New Norfolk and built the famous Bush Inn in about 1825., G.T. Stilwell and E.R. Pretyman,';Notes on Buildings in New Norfolk and District', Tasmanian Historical Research Association Papers and Proceedings, vol. 19, 1972, p. 24.