[trespass to land - land title, uncertainty of]

Harmer v. Sadler

Supreme Court of Van Diemen's Land

Pedder C.J., 15 December 1832

Source: Tasmanian, 28 December 1832

(Before H. Nicholls, and A. Crombie, Esqrs.

This was an action of trespass, brought by the plaintiff against the defendant. - Damages were laid of £100.

Mr. Gellibrand having stated the case, called. -

William Hill, who said he heard that Sadler was going to take possession of Harmer’s land, and sent to acquaint him; Harmer came up, and they went on the ground and saw Gardener’s man digging some holes for a cellar; Sadler was at this time living at Gardener’s; witness went with Harmer to Sadler’s; does not recollect when this was, but thinks it was nearly twelve months since; Harmer forbade him from going on the ground, and shewed him some papers, to which Sadler replied, that if he had no better authority than that, he would produce better in a few days; a little time after Sadler came to witness, and asked if the thought Jerry would take £10 for two acres of his; thinks Harmer had better, than four acres, but is not sure; told him he had nothing to do in it, and that he had better see himself, and that witness would tell him when he came to Ross Bridge; accordingly did so, and they went to Mr. O’Connor’s and met Harmer; another person named Gregory was present; Sadler said, now Harmer can we settle about this ground; and Harmer said he would settle with him if he liked, to which Sadler replied, that he had no money; Sadler has built a house on the ground since, and is living there; it is part of the ground witness pegged out; had the stuff split and all ready paid for at the time; it was some time before Sadler took possession of it; witness only drew one load of stuff on the land; it is bounded on one side by Rogers’s ground; one fronts the river, and one the Government-house; it fronts three streets, but does not know their names; a couple of months after witness drew the first load of stuff, saw Gardener’s man digging the cellar out; Sadler is a cabinet-maker by trade; he was cutting some stuff for the inside of the house.

Cross-examined by Mr. Horne. - Have only contracted with Mr. Harmer and Hill; was told by no person to take the stuff there, after he agreed with Harmer to fence it in; agreed with him about twelve months back, and also assisted him to peg out the ground; saw Rogers’ pegs; there were none others that he saw; a man that came from Mr. Hill’s saw him put the stuff on the land; there were no holes dug, nor any stones fetched at that time; put the stuff on the allotment of land that Sadler build on; he was not digging when witness brought the stuff there; there was a ploughed line round the land.

James Simpson, esq. examined by Mr. Gellibrand. - Is Police Magistrate at Campbell Town; knows the township of Rossbridge; knows the location; it is bounded on the west by Church street, on the south by Bridge-street, on the north by Roger’s land, and on the east by unlocated land; knows the two litigants; Harmer was first of all in possession of land adjoining Mr. Hornes, from which witness ordered him to "quit;" recollects when the foundation of the house was laid; cannot say Harmer claimed the land before that he complained to witness, when the building commenced of being turned off his land; the house was built by Sadler it is a public one; rode past on his way to Oatlands, after Harmer had spoke to him, and requested they would not proceed till he saw Mr. Welsh; brought a letter back from him, which he thinks he gave to Pritchard the overseer of the road party, as he rode past; the house was on the piece of land; it is 2 or 3 years since he removed Harmer from the land adjoining Mr. Horne; he had a hut built on it; does not know where he removed to; does not know of his taking this land before Sadler commenced building on it.

Cross-examined by Mr. Horne. - It is about 18 months since the complaint was made to him, of Sadler taking possession of this land; there never was any building before on that land; there was no fencing up; he saw the ploughed line, but no pegs;

George Frankland, Esq. examined by Mr. Gellibrand. - Is Surveyor General; knows Harmer, he has been frequently at his office; that G. F. is witnesses signature, Surveyor General’s office, 3d October 1828, "The Governor approves of Harmer having 4 acres of land in any township he may choose;" that order was issued by authority of the Governor; have written to him, and received replies; have seen him different times on the subject; have no idea where he had his other allotment, to which to annex the 4 acres; he had an order for a town allotment at Ross; thinks the township was laid out at that time; the next he heard of him, was, that he had settled next to Mr. Horne’s side line, that was in the township; on the complaint of Mr. Horne that he was a nuisance there, he was turned out; witness requested Mr. Wedge, the district Surveyor, to recommend another place; he did so; but does not know where that recommendation is at present; have no record of its being taken; nor any thing further in his office, but the order to select 4 unlocated acres, wherever he choose; did not authorise him to take any land unless if was approved of by the Governor; all that was necessary for him to do was to select a place, and if disposable, witness would have instructed the district Surveyor to measure it, and put him in possession, upon his entering into certain conditions; and should issue an order of location also; nothing was done after until the next year; does not recollect issuing any order in pursuance of this; do not remember to have any motive for not issuing it; were such a letter to be written to him now, he should write to know what ground was vacant; he was ordered to be removed from the land he then occupied; believes he settled himself there in consequence of having an order to take an allotment in any township.

Cross-examined by Mr. Horne. - The original order is dated 25th June 1828, the next the 21st December following; Harmer’s removal was directed on 5th August 1829; he was then a squatter without authority; recollects Mr.Wedge, saying, that he recommended a place to Harmer in 1829; believes he pointed out the piece of land which he recommended Harmer to apply for; did not recommend Mr. Wedge to measure it to him; Mr. Salder has applied through the regular channel, to be put in possession of a piece of land at Ross-bridge; it was stated, that it was in consequence of this dispute, that he made the application, directed Mr. Welsh to put him in possession of what he applied for; that is witness’s signature, dated 24th February, 1832, notifying to Sadler, that he had authority to have a firs5t class allotment; he made a selection in consequence, though the district Surveyor, and is confident that he received it.

Re-examined. - Wedge recommended the spot alluded to; it was unlocated ground, bounded by two streets, and Rogers’s farm; it had been recommended to Harmer, long before witness’s authority to Salder a few weeks after the order from the Colonial Secretary, for his removal from Mr. Horne’s side line; the land in dispute has never been located to any person up to this moment; Harmer had never applied for it until this case was got up; there were letters complaining of Sadler taking possession of what Harmer considered to be his, but no regular application; they were remonstrances.

The Chief Justice here intimated, that it appeared that both parties were unauthorised.

Two other witnesses were called one of whom (Rogers) proved to having seen Harmer "step our the ground front and rear" previous to Sadler’s erecting any building thereon, and also to his having driven pegs down.

Mr. Horne for the defence addressed the Court and Assessors, and in conclusion observed, that he would not trouble them by calling witnesses, as it was "one trespasser against another."

The Chief Justice. - Quite So.

His Honor in summing up, observed to the Assessors that neither the plaintiff or defendant had a shadow of claim - Verdict for plaintiff, damages One Farthing.

Counsel for plaintiff, Mr. Gellibrand; for the defendant, Mr. Horne.