[tenancy – land law, uncertain boundaries]

Barnes v. Cutts

Supreme Court of Van Diemen's Land

Montagu J., 15 December 1843

Source: Hobart Town Advertiser, 22 December 1843[1]

            For the plaintiff, the Solicitor General and Mr. Macdowell; solicitor, Mr. Rowlands. For the defendant, Mr. Montagu; solicitors, Messrs. Butler.

            This was an action of covenant, to recover damages for the plaintiff having been disturbed in his possession of certain premises, at the Green Ponds, leased to the plaintiff by defendant. The plaintiff charged that the defendant had leased all the land from the high road. Subsequently, Mr. Learmonth obtained a grant of a slip, taking all plaintiff’s frontage on the high road, even the front of the “Good Woman” public house, part of the demised premises. In consequence of this eviction, the plaintiff now brought the present action. The only question at issue was, whether the locus in quo was demised by defendant to plaintiff or not.

            It appeared, from the evidence that the boundary, defining the frontage, was described in the lease as a “drain”; that there had been, some time ago, an open “drain” much nearer the house that the high road, and close alongside the old road, was a runlet of water, part of which, in forming the present new line of road, was diverted, and over a part left open in front of his house the plaintiff had caused a carriage way to be formed, of wood, sufficient for vehicles to pass from the road to the “Good Woman.” The evidence was very contradictory as to whether Mr. Barnes had, previously to the eviction by Mr. Learmonth, occupied and enjoyed the frontage to the old drain, now filled up, or whether his possession had extended to the open water course, close by the road.

            After hearing counsel on both sides, and the evidence, which occupied most of the day, the judge summed up carefully and impartially, pointing out to the jury, for their consideration, the questions which arose on the evidence, and in law.

            The jury, after retiring for some time, returned a verdict for the plaintiff - damages £160.

            In reply to questions from the judge, the foreman of the jury said, we think the plaintiff has not now the advantages which he ought to enjoy under the lease, and that he has suffered injury to the amount of damages given by the verdict; we are also of opinion that the “drain” mentioned by the plaintiff’s witnesses was the drain referred to in the lease.