[property, action to recover – title to land – original existence of a Rivulet – maps, use of]

Doe on the demise of Inniss v. Read

Supreme Court of Van Diemen’s Land

Pedder C.J., 23 and 26 December 1834

Source: Colonial Times, 30 December 1834

            Before the Chief Justice and the following Jury:- J. L. Archer, Esq., (Foreman); J. Beaumont, Esq.; A. Crombie, Esq.; W. Bunster, Esq.

            The Attorney and Solicitor General for the plaintiff - Mr. Gellibrand for the defendant.

            The Attorney General opened the case. This was an action of ejectment, in other words, an action brought to recover possession of certain land. - It would be entirely unnecessary, (the learned gentleman said) to open the pleadings to the Jury, because as in all cases of ejectment, the whole were purely fictitious. The plaintiff in fact, simply said, that he was entitled to the land he held, which the defendant denied. The land claimed by the plaintiff, was situated at Glenarchy, and was in the occupation of a person named Branscombe, who was the defendant’s tenant; the land was bounded by a ditch made by the defendant or his tenant; the ditch was a straight one, as the Jury who viewed the ground had seen, and ran to the Derwent - and bounded also by the original course of Humphrey’s Rivulet. The whole of the evidence would turn upon the single point; what was the original course of Humphrey’s Rivulet to the Derwent. The land in dispute consisted of 20 acres, 3 rods, and 24 perches; the Jury were no doubt aware, that no action in this country could be brought, however undoubted the individual’s claim, to force possession, except under a Crown Grant, issued under the Great Seal, but it was a source of satisfaction to every one to know, that such a grant could be obtained by every man, who chose to apply for it.* About the boundaries of the land there was no dispute, the only question for the Jury to try, was what was the original course of Humphrey’s Rivulet; the evidence he should produce relative to that point, would be of no recent date, almost the whole of his evidence, would be specimens of Colonial antiquity; he should have to carry back the Jury to a period as remote as 28 years ago. About 16 years ago, he understood the original course was altered - if it were not so, and the present course of the rivulet were the original one, the plaintiff would be shut out from all claim to the land. The plan produced was a correct one, made out by General Macquarie, to settle disputes in the district. The official original grant, shewed the original course of Humphrey’s Rivulet, to be as it was asserted to be by the plaintiff. Throughout the whole of the Colony, it was well known, there were more disputes about boundaries, than about any thing else - if all of them were brought before the Supreme Court, the expense would be immense, but there was no occasion for such a proceeding, while the quick method of settling them by applying for a grant could be resorted to - sometimes he would allow considerable delay might take place, but even so it was far preferable to litigation, as the decision of the Commissioners was, and ought to be final.** If the course laid down in the chart, was not the original course, the Government thought it was, and therefore there could be no doubt, that all the land to the westward, which was sufficient to make up the number of acres granted, was intended to be given to Littlejohn (the first proprietor of the land in question.) The present Government granted to the plaintiff Innis some land, defined by the original course of Humphrey’s Rivulet, which was the one marked on the chart produced. He now came to that part of the case, with reference to which the testimony would be found extremely conflicting; he had many witnesses to examine, and he understood his learned friend on the other side, had an army equally numerous. The ground in dispute, was a marsh covered with the tea tree, which it was well known grew only in marsh grounds. The circumstances upon which he knew well the defendant relied, was, that at a particular spot along the course of the present rivulet, the water ran over tea trees of 30 or 40 years standing. In the year 1804, one of the original settlers, named Littlejohn, obtained a grant from Governor Collins of 120 acres, and the measuring chain by some means or other, being longer in those days than the present he got 130 acres and upwards. In General Macquarie’s time there were so many disputes about boundaries, that the Government ordered the grants of Governors Collins and King to be remeasured, and fresh grants to be issued. In the new grant, the land was described as being bounded by Humphrey’s Rivulet, and including a marsh. He did not wish to offer any observations upon the case, but contented himself with simply stating facts, which he should prove in evidence.

The first witness called, was Mr. Rocher, who proved the signature of the Registrar of the Supreme Court to the new grant.

George Frankland, Esquire examined. - Is Surveyor General; is acquainted with the land in possession of Mr. Branscombe - also with the land in possession of Mr. Innes. Has with him several maps of the land in dispute, the course of Humphrey’s Rivulet is indicated on the map produced; the map produced is the oldest. Has seen the land; the course of the rivulet, as indicated on the map, is the course nature evidently intended it to take. The whole of the river is accurately indicated on the map produced; it is Governor Macquarie’s map, and is signed by him. The mouth and course of the rivulet is shown where it empties itself into the Derwent. (Mr. Frankland pointed out to the Jury the course which, in his opinion, Humphrey’s Rivulet formerly took.)

The course of the rivulet, as shewn on the map, was taken by actual survey; cannot trace the course of the rivulet at the upper part of the mouth; it seem very doubtful; the old bed of the river on the eastern boundary is clearly indicated. The whole of the marsh appears to be an alluvial soil.

The rivulet appears to have turned off to the Eastward; cannot say where it commenced. The grant produced is Littlejohn’s grant; that grant was produced before me, as Commissioner for investigating titles to land, on the 27th September. The land in dispute, in witness’s judgment, is contained in the grant produced. (Governor King’s grant was here put in.)

Cross-examined. - The old grant includes a marsh, the new one does not; the old grants have very ambiguous descriptions; In the new grant Humphrey’s Rivulet is described as the boundary of the land in dispute, as it appeared to be the boundary on the old grant. Miller’s grant was bounded on the North by the Derwent, leaving a road one chain wide, on the West by Humphrey’s Rivulet; no mention is made of a marsh in the centre of the grant. The track of the Surveyor is indicated by dotted lines. The grant to Miller nominally contained 100 acres, and Littlejohn’s 120. The land, independent of the marsh, which was granted to Miller, contained actually 117 acres; including the marsh, Littlejohn’s grant would contain 150 acres. Miller’s grant, including the marsh, would contain 142 acres and upwards - the marsh contains about 20 acres.

John Charles Darke examined. - Drew the plan produced; had not at that time seen the old plan; had seen a copy of part of it; knows Humphrey’s Rivulet; there is a natural estuary where it appears, formerly, to have emptied itself; knows the spot where the present creek empties itself; there is no appearance of a natural estuary there; could trace the estuary by following the trace lines on the old chart; found the bearings and boundaries as they were delineated on the old map; traced the course of the rivulet to an untenanted hut near a potato garden; traced the bank of the rivulet right up to O’Brien’s Bridge; the line indicated by the map appears to have been the line the rivulet took; saw a dry creek; should think it would contain water in wet seasons only.

Cross-examined. - Has examined the present course of the creek minutely; the impression on witness’s mind was, that the rivulet fell into the dry creek; thinks so from the appearance of the ground, and from a number of drains that have been cut; has known the marsh these 18 months - it consists of alluvial deposit; believes Humphrey’s Rivulet covered the entire marsh; believes the deposit is occasioned by the floods over the marsh; believed the natural course of the stream took a different direction to that of the present drain; the land on Morrison’s side is lower than on Branscombe’s side; does not think the bank shows marks of antiquity: does not believe the trees in the creek to be more than fifteen years old.

Mrs. Maria Lord examined. - Knew Littlejohn and Miller; they had farms at O’Brien’s Bridge; their farms did not join each other; has known Miller’s farm since 1808; Humphrey’s Rivulet ran into the Derwent. Witness had a farm, known as Captain Blyth’s, on Humphrey’s Rivulet; the piece of ground in dispute, was called Littlejohn’s Swamp; there was no other swamp; was frequently at Miller’s and Littlejohn’s land on parties of pleasure. Humphrey’s Rivulet dies not run in the same direction that it used to do.

Cross-examined. - Had Bligh’s farm for 3 years; Humphrey’s Rivulet used sometimes to lie dry in places; Miller’s farm, to go across the bush, was nearer to town than Bligh’s.

Mr. Stocker. - Knew the Marsh in dispute; it was in Littlejohn’s possession; Littlejohn and Miller arrived here in 1804; Miller obtained a location from Governor Collins, as well as Littlejohn; their two farms were on opposite side of Humphrey’s Rivulet; it was at that time generally known by the name of Miller’s Creek; it was in the early part of Colonel Sorell’s Administration, that the creek was christened Humphrey’s Rivulet. Above Branscombe’s Ditch, there is the mouth of Humphrey’s Rivulet, near where Miller built his hut; it looks like the mouth of a rivulet at this time; the mouth went up in a sweep from the Derwent, leaving the whole of the Swamp on the right; any person who had seen the land sixteen or seventeen years ago would hardly suppose it to be the same now; considers that the rivulet wound round the swamp there were two swamps, divided by a little heavily timbered land; the swamps joined at the water’s edge; purchased Littlejohn’s farm and rented it to Mr. J. Weavell; afterwards rented it to Mr. Branscombe, and a man named Halloway; Humphrey’s Rivulet was considered the Hobart Town Boundary of Littlejohn’s farm. The Marsh in dispute, witness considered his property; considered Branscombe was in possession of the marsh when the farm was rented to him. Many people have applied to witness for leave to cut rushes off the marsh, and he has given it to them; what is now called Humphrey’s Rivulet was not the original course; cannot say whether there were tea trees growing across the marsh, but there were near the mouth of the marsh; Governor Collins told witness that he had given Littlejohn the swamp.

Cross-examined. - The swamp near Littlejohn’s house was about 3 acres; Miller lived on his farm till he sold it; was in the marsh before it was cultivated; in winter time a large quantity of water comes down Burn’s Creek; near O’Brien’s Bridge, Humphrey’s Rivulet divides into two streams; it empties itself in Littlejohn’s Bay; never saw the rivulet dry; Branscombe has ceased to be witness’s tenant for 7 or 8 years; Branscombe has had the swamp in cultivation, for 5 or 6 years - Branscombe drained it; he wished witness while he was a tenant to drain it, but he did not do so.

John Dacres, another old settler who formerly had a farm at New Town, said that the course of the rivulet was altered.

John Riseley, also deposed to the same effect.

John Edward Blinkworth examined. - Arrived in the “Ocean”, in the year 1804; had a farm at Glenarchy; knew Humphrey’s Rivulet; from O’Brien’s Bridge where it joined, it took a bend, and went right down to Miller’s hut; it went along about a quarter of a mile to the marsh, and emptied itself upon it; after going over the marsh, it inclines to the right, until it emptied itself in Miller’s Creek. The ground at present, is nothing like what it used to be; Humphrey’s Rivulet empties itself now into a drain, called Branscombe’s drain, about  200 yards from where it used to empty itself; there is no creek up towards Mr. Hull’s farm; the rivulet has been called Humphrey’s Rivulet, since the late Mr. Humphreys stopped there one night; before that it went by the name of Miller’s Brush or Creek.

Cross-examined . - There are no marks of the spade along the creek, until the drain commences.

Five other witnesses were examined, who gave similar testimony, and the Court adjourned about eight o’clock, until the following daw at nine o’clock.

Robert Hayes was the first witness examined this day. - Humphrey’s Rivulet took a circular turn, from O’Brien’s Bridge, past Miller’s first hut, and emptied itself into the Derwent; recollects a dispute between Miller and Littlejohn, about Miller cutting some spars; Littlejohn sent him a notice not to move them, as they were his (Littlejohn’s) property; heard that Governor Collins’s grant was cancelled. The old creek now called Humphrey’s Rivulet, did not formerly run where it now does.

John Clarke deposed, that the creek thirty years ago, flowed nearer to Branscombe’s.

William Leech said, that standing at Miller’s hut, with his back to the Derwent, the marsh was on his right hand.

William Nicholls examined. - Knows Humphrey’s Rivulet, it was formerly called Miller’s Brush; the marsh was called Littlejohn’s Scrub; the creek does not now run in the direction it formerly did, the land is so much altered, that it is difficult to describe the difference; a part of the creek is natural and part not so.

William Williams examined. - Knew both Miller and Littlejohn; they had farms at Glenarchy; what is now Humphrey’s Rivulet, was formerly called Miller’s Brush; Miller’s Brush does not run in the direction it used to do; the brush emptied itself into the Derwent; Miller’s Brush began at O’Brien’s Bridge; the water now runs through many parts of the marsh land; witness could see where the rivulet had been stopped up, and made to turn into a dry creek; the ground is now so disfigured that it is impossible to say where the stream formerly went across, but is sure it crossed somewhere.

John Birchall examined. - Has known the farms of Littlejohn and Miller, since the year 1804; has not seen them for the last twenty four years; Miller’s first hut was further from the Derwent than the second, which stood on the bank of the river; there was a creek called Littlejohn’s Creek; a little below O’Brien’s Bridge, the rivulet spread over towards Miller’s and was a main creek there; recollects the marsh, which witness was told belonged to Littlejohn.

Cross-examined. - About one hundred yards from the old road, the creek spread abroad all over the marsh; that was the case both in summer and winter.

Peter Rayner examined. - Was government servant to Littlejohn in 1812; lived below O’Brien’s Bridge; at what was called Miller’s Brush; heard no dispute between Littlejohn and Miller about boundaries; Humphrey’s Rivulet does not run where it used to do. The rivulet used to empty itself into the Derwent, about thirty yards from Miller’s hut, which used to be on the bank of the Derwent on the Hobart Town side the rivulet.

Cross-examined. - The marsh was always flooded; there was a blind creek partly hid by rushes; there was a marsh near Littlejohn’s house about two acres and a half.

William Avery examined. - Knew Littlejohn and Miller; recollects Miller having a log hut close to the Derwent, and on the Hobart Town side of Humphrey’s Rivulet. Witness saw a cut drain a few days ago through which all the water flows; witness went up the drain for ten or fifteen rods; there was a log-fence where witness stopped; has known the spot for the last twenty-four years; the old creek has been filled and the stream turned.

This was the case on the part of the defendant.

Mr. Gellibrand rose and addressed the Jury for the defendant.

“My learned friend,” said he, “has occupied two days in bringing all the plaintiff’s witnesses before you; I do not think it necessary to trespass upon your time and patience, but for a few minutes. You, gentlemen, who have had an opportunity of examining the alluvial soil and the general natural appearances of the creek, must be satisfied, that not one witness has been produced, who has, in the slightest degree, removed the inevitable conclusion at which you must have arrived from your own inspection - even if I did not say one word or produce a single witness, you must, I am satisfied, find a verdict for the defendant. All the witnesses have stated, either directly or in the course of cross-examination, that the old creek went over to Miller’s hut. The Attorney General - Gentlemen, when you were at Glenarchy, directed your attention to a particular tree. He said, “I draw your attention, gentlemen, to it.” He was not at liberty, gentlemen, to say more. The Attorney General then passed on to where a little stick was placed, and I put it to you, gentlemen, whether you are not convinced that that never was the original course of the creek. The decision of this case, gentlemen, does not depend upon contradictory evidence, for you, having seen the natural landmarks, the alluvial settlement, and all the other appearances which enable you to come to a decision, are able of yourselves to decide this question. I can easily understand and account for in some degree the nature of the evidence which has been produced before you today. All who have been some few years in the Colony know that floods and a variety of other causes will alter the appearance of creeks and rivulets. If the steam had flowed where the plaintiff says it did, the alluvial deposit would have been formed on that side, and not where it has been; I will prove to you gentlemen that the additional creek the witnesses have spoken of, was a dry creek; I will prove to you from Miller himself, a person entirely disinterested, that he was obliged in summer time to go across to the bush fence, to get water for his daily supply. The water of the rivulet spread all over the marsh, and emptied itself near this bush fence; I will prove by other witnesses also, that the creek spoken of was a dry creek; the plaintiff’s witnesses have insinuated, that the old rivulet has been cut, but I am sure, gentlemen, that you attach no importance to that insinuation; I take the liberty of asking you, gentlemen, whether you are not satisfied, that the rivulet, as it exists down to the drain cut by Mr. Branscombe is the natural old rivulet; I make these observations, not because I think you are not satisfied, but for the purpose of shewing that the plaintiff has not got a leg to stand upon. The Attorney General made some observations as to the intention of Government, to grant the land to Humphrey’s Rivulet; I say so too, but the other side wants to take what we call Burn’s Creek. Mr. Innes purchased this land from the Sheriff, and he knew that it contained 48 acres, which, gentlemen you will find the land contains, without the marsh. - Upon this chart, gentlemen, which is called original, I see fences put down, as being erected in 1813, which to my certain knowledge have been erected within the last nine years, there is also a grant on the map, to a Mr. Barnes, which was not granted until Sir Thomas Brisbane arrived. The Attorney General has said, that you gentlemen would be competent to decide the matter on view, and I perfectly agree with him.

(Attorney General. - I said no such thing Mr. Gellibrand.)

Well gentlemen, if the Attorney General did not say so, I say so for him; the view, I am satisfied, must decide the matter. There is one circumstance gentlemen, to which I must not omit to draw your attention. In the first grant to Littlejohn, the nominal number of acres is 100, with a reservation of 10 chains on the coast; in the second grant, he has 120 acres. If I had omitted to mention this, my ingenious friend would have said, that the marsh constituted the additional 20 acres, but in the second grant, gentlemen, you will find that the 10 chains on the coast are not reserved, and they are somewhere about equivalent to the additional 20 acres. I shall not take up any more of your valuable time, but proceed to call my witnesses.

Edward Miller examined. - Had a grant from Governor Collins of 100 acres at Glenarchy; put up a thatched hut near a swamp, a good way from the Derwent; lived in it about four years; there was a stream called Miller’s Creek; that creek, except at one spot where it has been cut off, runs now where it always did; is quite positive of that; from the commencement of the present drain, when witness’s land was measured, there was one chain allowed for the creek; witness had put up the hut before the ground was measured; used to go to Humphrey’s Rivulet for water; it was near to where a bark hut now stands, that witness used to fetch his water. Humphrey’s Rivulet used to flow over by Littlejohn’s hut; witness had about 30 acres of land in cultivation; built a large hut afterwards near the Derwent; used to get fresh water from the creek, near a log fence put up by Mr. Inniss; when there was little water in the rivulet, it always emptied itself in the Derwent at one point; Humphrey’s Rivulet has always flowed in its present direction.

Cross-examined. - Has had a conversation with Mr. Smith and Mr. Stocker, relative to the boundaries, and pointed them out; did not say that Humphrey’s Rivulet emptied itself behind Branscombe’s drain; there was no running stream in summer time, either in front of one hut or the other; the water did not flow across the Marsh at the top part of the drain towards witness’s hut; a little water flowed on the Marsh, but none came over; there was no stream or spread of water over towards witness’s hut; at O’Brien’s Bridge, there used to be but one branch, but now there are two; there are about 10 acres of marshy ground between Humphrey’s Rivulet and Littlejohn’s hut; does not know whether Mr. Branscombe knew how the Rivulet emptied itself; Mr. Branscombe might have taken in three or four acres more of land, if he had cut his drain differently.

James Gordon, Esq. examined. - Has known Miller’s hut since Captain Bligh bought the farm; used to visit Captain Bligh frequently; Humphrey’s Rivulet continued in a direct line from O’Brien’s Bridge to Branscombe’s house; it afterwards inclined to the left, and emptied itself into the Derwent; the original channel of the creek is as perfect now as it was eighteen years ago; there is another creek which witness has heard called Mrs. Burn’s Creek; it was a dry creek; no water from Humphrey’s Rivulet ever came over into Burn’s Creek, except in times of flood; at one spot Humphrey’s Rivulet ran in a broad stream over the land into a very little Bay; it looked like surface water, making it sway through the reeds.

Cross-examined. - The ground appeared to witness to be bound together by roots and reeds; Humphrey’s creek sometimes overflowed enough to turn three mills; there was more timber near Littlejohn’s farm, than on any other part of the land; the earth on the bank of the stream appears to have been thrown up to preserve the channel of the rivulet; has seen a little water in the dry creek, but then there was a flood in Humphrey’s Rivulet.

Thomas Salmon examined. - Was acquainted seventeen years ago with the course of Humphrey’s Rivulet to the Derwent; it was the same then as now, except that it contained more water; has known a dry creek now called Burn’s Creek for seventeen years; Hymphrey’s Rivulet never flowed into the dry creek.

Mr. W. A. Broadribb examined. - Has known Miller and Littlejohn’s farm for the last 18 years; knows Humphrey’s Rivulet; knows also Burn’s Creek, it was always dry in summer; should say that Humphrey’s Rivulet did not flow into the dry creek; has passed from Burn’s Creek to an estuary in the creek; attempted to cross the marsh to it, but could not, went back to the mouth of Humphrey’s Rivulet, but could not get over; witness threw a plank across; has never traced the rivulet upwards any higher than where it spreads; there is a cut drain at the top, the water comes down in the regular course to the drain.

Mr. George Hull examined. - Knows Littlejohn’s farm; has known it for the last fifteen years; the course of Humphrey’s Rivulet was precisely the same as it is now; there was no more distinct channel into the Derwent than there is now; the rivulet spread over the marsh now in dispute; it is impossible for Humphrey’s Rivulet to flow into the dry creek; the first horse witness knew bought in the Colony, was tethered near Burn’s Creek for the sake of the water; there is no running stream in the summer along Burn’s Creek.

Mr. Thomas Lewis, Surveyor, deposed, that the channel, called Humphrey’s Rivulet, appears to be a natural channel; the creek appears to be of ancient origin; the trees, on the edge of the channel, appear as if they had grown on the verge of a streamlet of long standing; there never could have been a channel by Burn’s Creek - the land is higher there.

Cross-examined. - A considerable body of water at times seems to have flowed through Burn’s Creek; in floods, should think the larger body of water came down Humphrey’s Rivulet.

William Johnson examined. - Arrived in the Colony in the year 1804; knows the farms of Miller and Littlejohn; knows Humphrey’s Rivulet; it never could have flowed into Burn’s Creek. Witness, a few days since, stood at Branscomb’s door, and pointed out the course of the rivulet before he saw it; the rivulet is exactly the same as it formerly was.

Cross-examined. - Did not give a different opinion to Mr. Butler’s Clerk relative to the course of the rivulet; in flood times there, was a flow of water between Miller’s huts, but it was not a constant stream.

William Cochrance examined. - This witness gave similar testimony to the last.

John Fawkner examined. - Has known the farms of Miller and Littlejohn these fourteen or fifteen years; the creek always ran in its present direction.

Cross-examined. - Recollects the old road that passed Bligh’s house; the rivulet did not pass that house in its way to Hobart Town; knew there was a marsh; Mr. Miller had two huts erected near a bank which skirted that marsh; when there was a flood Humphrey’s Creek would overflow, and run in all directions; does not know whether it kept in that manner for months; does not know how long the embankment has been put up or the drains dug; knows Miller and knew him years ago; understood that many farms contained more land than the grants specified - witness’s own did. Witness gave his farm up for another; does not know whether Miller or Littlejohn did; the bottom part of the channel is in its original state.

A conversation here ensued rather than an examination between the witness and the Attorney General. Mr. Fawkner said he understood, that the Attorney General, in the course of the day, had applied the epithet “Jackall” to him; but he could tell the Attorney General that he did not come there to have such epithets applied to him; but to speak the truth, and no man should compel him to say anything but the truth. In answer to a question of the Attorney General’s, whether he (Mr. Fawkner) had not told the Attorney General, that he (Mr. Fawkner) had not told the Attorney General, that he (Mr. Fawkner) would endeavour to convert one or two of the witnesses to his own opinion. Mr. Fawkner replied, “I did not - I said I would endeavour to convert you, when I got into the witness-box, and so I will.”

John Boden examined. - Knows the course of the rivulet from the bridge to the marsh; has known it for fifteen years; thinks after heavy rains, part of Humphrey’s Rivulet would run into Burn’s Creek.

Burn’s Creek, except after heavy rain was a dry creek 15 years ago.

James O’Brien examined. - Has known Humphrey’s Rivulet about 24 years; has known its course 23 years; has seen Branscombe’s drain; the course of the rivulet was the same as it is now 23 years ago; knows Burn’s Creek; it is dry in summer.

Cross-examined. -Never knew the water go across in the direction of Miller’s first hut.

Mr. Gellibrand said, he had a great many more witnesses, but would content himself with those he had called, and close his case.

Mr. Stephen replied, that he had never before prayed the indulgence of the Court, but that really he felt so exceedingly ill and fatigued, that he must beg his Honor would allow the case to be postponed.

Mr. Gellibrand said, that he closed his defence, purposely, that the case might be decided that evening, as he well knew, that one of the gentlemen of the Jury was particularly anxious to leave for the country.

His Honor said, that if the defendant wished the case to proceed, he could not interfere.

Mr. Gellibrand observed, that the case had already occupied two whole days, of which the greater part was occupied by the plaintiff - the defence had only taken a few hours.

The Attorney General said, that he had the evidence of a number of witnesses to wade through, and at the very least, his reply would take him two hours and a half, and then His Honor’s address would -

His Honor interrupting, I can assure you I shall not attempt to go through all the evidence which has been brought forward, the summing up, will scarcely take me five minutes.

One of the Jury rose and said, that it was the general wish of the Jury the case should be postponed - when Mr. Gellibrand willingly consented, and the case was adjourned till Friday. Mr. Gellibrand stating, that as he had merely closed the defence, in order that the case might be more conveniently decided, he should of course, not now consider his case closed, but should if he thought proper, resume the line of defence on Friday.

Court adjourned at a quarter past nine.

Friday, December 26th

The Attorney General rose and replied. After having occupied the attention of the Court for nearly three days, they had at last arrived at the conclusion of the evidence, voluminous as it was, and the Jury would have to decide on which side the evidence on the whole preponderated. He was convinced, that the Jury had kept their minds, while absent from the box, free from any partial representations, and in such a state as would enable them to arrive at a decision in accordance with the evidence adduced. It should be his task to assist them in examining the merits of the evidence on both sides, for which purpose he had taken notes, as the evidence fell from the mouths of the witnesses. By the view which he thought His Honor would take, his client might be greatly injured, and suffer great injustice, but he knew the accuracy of His Honor’s view of the case. It was, however, establishing a doctrine, which if agreed to on all occasions, would unsettle the titles of land through half the Colony. The plain intention of the Government, ought, he thought, to be looked to, and not to the amount of land actually obtained, especially as the Surveyors in the early period of the Colony were so inaccurate. He would ask, what was the intention of the Governor or Government, when a location or grant issues? Why clearly to issue the grant, in accordance with their belief as to the localities of the spot. The ground about New Town, had been surveyed by General Macquarie’s order, and new grants issued, inconsequence of that survey, and when the Surveyor said that Littlejohn’s land was bounded by Humphrey’s Rivulet, he clearly meant the then existing course of the main channel - and what had the Surveyor to guide him in his survey? - the map of his predecessor - his description was taken from a view of the spot. The case was extremely important, both on account of the value of the land, and of the money which had been expended on both sides, to bring the matter fairly to issue. The plaintiff claimed the land, because he thought he had a right to it, having bought all the land formerly Littlejohn’s. If the grant had said as he contended, it might to have done, that Littlejohn’s land was bounded by Humphrey’s Rivulet, as laid down on the map, there could not possibly have been any dispute about the matter. If the plaintiff was to lose his land, because this was not done, he (the Attorney General) could only say, that he thought him both in honor and honesty, entitled to it. He could not produce Mr. McMahon, who drew the map, because he was dead, if he had been living, he would have sworn to the correctness of it; but not having him, the Jury had his map, which he thought was equivalent to the evidence of Mr. McMahon himself. In England, all questions relative to the title to land, not only maps, but even hearsay evidence was admitted; witnesses from a thousand causes might err, but the map was a deal less likely to do so - something had been said about additions to the map, but he begged to remind the Jury, that Mr. Frankland distinctly stated, that there had been additions to the map, but no alterations of the original drawing. What the defendant relied upon principally, he knew to be the present appearance of the creek, but it was impossible to judge of what was by what is. If he thought that the Jury were satisfied with the view they had had of the spot, and had determined on deciding for the defendant, he would sit down and not address to them another syllable. Mr. Gordon had said, that the rivulet ran in its present channel for the last 16 years, but was that any reason, why it should not before that period have ran in another; he would confess, that it was possible, the plaintiff would not have thought himself entitled to the land now in dispute; if the Surveyor General, when he applied for a grant, had not considered he was. Some of the testimony he would admit, was extremely difficult to reconcile, and if the jury did not reconcile, and if the Jury did not reconcile it, they must be their verdict, say that one party or the other was perjured. The learned gentlemen went over the whole of the evidence on both sides, with great minuteness commenting upon it as he proceeded, and concluded an address of upwards of two hours duration, as follows:- “If gentlemen, upon the whole, you shall be of opinion that the evidence preponderates in favor of the plaintiff. I thank Heaven, that it is in your power, to return a verdict consistent with the evidence, without violating the rules of law."

His Honor shortly addressed the Jury, observing he thought it would be unnecessary to take up their time by recapitulating the evidence, and pointing out to them the principal circumstance for their consideration, viz. - what was the original course of Humphrey’s Rivulet. The Jury, His Honor remarked, would be careful to consider the course of the main channel only, any further observation His Honor considered unnecessary, as the Jury were much better able to judge which of the parties were entitled than he was.

The Jury retired, and after six hours deliberation returned a verdict for the Defendant.

Notes in original text