[Caveat Board - land title, uncertainty]

Sharp v. Gregson

Supreme Court of Van Diemen's Land

Pedder C.J., 8 April 1835

Source: True Colonist, 10 April 1835[1]

These actions, which have formed the subject for much talk for some time past, were set down for trial this day, before His Honor the Chief Justice, and a very respectable Jury of four. Mr. Attorney General, with Mr. Attorney Rowlands, acting for the plaintiff, and Mr. Gellibrand, with Mr. Nicholson, for the defendant.

It appeared, that in the month of October last, Mr. Gregson had ordered part of a fence set up by Mr. Sharp, on the Risdon Estate, to be taken down. For this act, which injured no one, and notwithstanding the case was before the Caveat Board, which would have decided and still must decide the question of right, Mr. Rowlands commenced an action against Mr. Gregson, in the Supreme Court. The plaintiff having afterwards thought fit to replace the fence, the defendant again had it taken down; and it appears that his servants, probably to prevent further annoyance, set fire to the materials, for which second offence the same learned Attorney brought a second action. One summons being returnable the 4th, the 5th, or the 6th of November last, two declous were filed on the 22nd of the same month, and costs and charges of course occasioned in both the actions, so delightfully proceeding "check by jole" in the Supreme Court. Now, it must be obvious, that as the subject was a question of boundary, and was then before the Caveat Board, that Board was the only fit Tribunal to ascertain and decide upon the fact; but even admitting that an action was necessary to recover a compensation for the alleged injury, one action alone would have afforded ample justice to the plaintiff. After a long and patient hearing on the part of the Court, and a very dispassionate summing up by His Honor, a verdict for the defendant was given in the first action, and the Record withdrawn by the learned Attorney for the unfortunate plaintiff in the second, who had thus been visited with enormous costs, for the attainment of no earthly good, except to his Attorney. When will these things end?

Notes

[1] AOT SC 26/8 records this case as an action of trepass. For Gregson, see F.C. Green, ‘Thomas George Gregson (1798-1874)’, ADB, vol. 1, pp. 475-6. See also Hobart Town Courier, 10 April 1835. The Caveat Board was established, like the Court of Claims in New South Wales, to deal with those who held titles in an informal manner, that is, other than through a Crown Grant. See Terry v. Spode, 1835 ; and see In re Griffiths, 1834. For the Caveat Board see R. Snell, ‘The Caveat Board: An Overview of a Key Colonial Tribunal 1835-1859’, Tasmanian Historical Research Association Papers and Proceedings, vol. 42, no. 4, 1995, pp. 192-213.

In New South Wales, see Crown Land (Claims) Act 1833.