Supreme Court of New South Wales

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Busby v Rowe [1828] NSWSC 92 (9 October 1828)

Last Updated: 12 October 1998

[ejectment - land titles - Darling Harbour]

[p. 70]

[Ejectment for Land "situated being in Cockle Bay". - Demise of Land describing the locus in quo to be situate in Darling Harbour Held a fatal variance.]

Thursday 9th October 1828

Coram Dowling J

Mr Jones Assessors

Mr Jackson

Busby v Rowe

Ejectment for 50 acres of land with the appurtenances situate and being in Cockle Bay Sydney in the County of Cumberland in the Colony of New South Wales on Demise of 23 April 1828 for 10 years to John Doe General Issue.

Sampson S.G. open case.

Ejectment for premises situate in Sussex Street Darling Harbour. In order to prove the [p. 71] lessor of the Plaintiffs title, the following lease was produced in evidence

By virtue of the power and authority in me vested, I do by these presents demise lease, set and to farm, let unto James Busby Esq; All that piece or parcel of Land, lying and situate, on the west side of Sussex Street in the Town of Sydney, containing by admeasurement Twenty six rods bounded on the north by a line of 212 links from Darling Harbour to Sussex Street, on the east by Sussex Street; on the South by Government ground and a line of 212 links and on the west by the Market Wharf. To have and to hold the said piece or parcel of land unto the said James Busby his Executors &c for and during the term of one year from the date hereof. In trust nevertheless to and for the only use and benefit of His Majesty his heirs and successors.

In testimony whereof, I have here unto set my hand and official seal at Sydney [p. 72] in New South Wales this 23rd April 1828

RA Darling seal

Signed and sealed in the presence of Rex McLeay

Entered upon record by me at page 229.No10. Register, this 24th April 1828.

Henry Halloran I served this Copy of Notice on Defendant on the 25th August 1827 at his residence in George Street. I delivered it to some person carrying on his business.

Capt Wm Dumaresq I believe this signature to be Defendants handwriting.

Surveyor Generals Office

August 25th 1827.

Mr John Payne

You will take notice that the ground which you have commenced enclosing opposite the North Market Wharf and where upon you have commenced quarrying is Crown Land, and has never been alienated. You will be held answerable for all costs, and damages which may arise in consequence of your [p. 73] taking possession of Crown Land without due authority.

Signed J. Oxley S.G.

Reply of Defendant to the above

Sir,

In reply to your cautionary Notice of the 25th instant respecting of the ground opposite the North Market wharf on which I have commenced building. I respectfully beg leave to state that from documents now in my possession it appears that it was located by Governor Macquarie to one William Hennessly in consideration of a house and premises in Sussex Street, belonging, to the said Hennessly which the Government had converted to its own purpose Hennessly by deed dated the 10 Sept 1816 transferred to one William Farrel, and Farrel again on the 29th May last, to a man named Patrick Troy,[1] now a Constable in the Sydney Police, from whom I purchased it on the 9th instant for a sum of £46.6.0. Sterling which has been duly paid over to the said Troy and I beg further to state that even had I not in the first instance seen the Documents [p. 74] above alluded to I could not have doubted but the land in question was private property from the circumstance of its being regularly enclosed with a two rail fence when I first viewed it with the idea of becoming purchaser, and such enclosure had I understand, been made long before without any notice whatever being taken of it. I did not in fact enclose the ground. I found it ready enclosed to my hand, and in every respect appearing to the view as private and not as public property. Under all which circumstances, and as I have already gone to a considerable expense and entered into contracts for the erection of handsome buildings there on I trust the Government will be disposed to extend to me in this case a degree of consideration equal to that which it has hitherto manifested toward the occupants or anominal [sic] grantees of the surrounding premises, most of not all of which are I understand held under titles similar to that in which I claim mine.

I am &c Jno Payne [2]

[2] For a similar case turning on the interpretation of a lease, see Elder v. McCann, 1828, Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 85. See also Doe dem. Busby v. Payne, 1829.

On informal titles in New South Wales, see Brown v. Alexander, 1828.