1-255 (Original)

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King v. Cooper.
This was an action brought by the Attorney-General at the suit of the King, and called an Information of Intrusion against Mr. Robert Cooper, for taking possession of a certain parcel of Crown land near Black Wattle Swamp, without legal authority. The Attorney and Solicitor-General appeared on behalf of the Crown. The Attorney General stated the nature of the case and the pleadings to the Jury. Dr. Wardell then addressed the Jury on the part of Mr. Cooper. After making some observations on the importance of the case, and the injustice of the proceedings, as also the effect of these on most of the titles to land in the Colony, which did not happen to be under seal, the learned Counsel detailed at length the circumstances of the case. Mr. Cooper, it appeared from his statement, on seceding from the partnership with Mr. James Underwood, in the other distillery, determined on erecting a distillery himself on the most eligible spot he could obtain. With this view he offered to exchange some land he then held, for a portion of the glebe of St. Philip's --- - this he was unable to accomplish; as on applying to the Attorney-General he had been told that though no actual grant had ever been made of the glebe, yet it would require an act in Council to effect the proposed exchange. Mr. Cooper then applied by memorial to the Governor, for the land in question. To this memorial he received no answer; but after a short time the Surveyor-General had sent for him, and told him that he should have the land measured to him --- - accordingly one of the Assistants surveyed, and put Mr. Cooper in possession, conformably to the universal practice in the Colony. Mr. C. immediately began to prepare for building --- - employed workmen to dig the foundation, and was proceeding rapidly with his works, when it appeared that the Governor's Private Secretary happening to ride that way observed the extensive operations which Mr. Cooper had commenced; and thinking that the stream of water which ran through this land would be required for the use of the town, and being also ignorant of the authority under which Mr. Cooper had thus possessed himself of it, he immediately gave Mr. Cooper notice to desist; and shortly afterwards Mr. Garling, the Government Solicitor, served him with a notice to the like effect. Mr. Cooper, however, conscious that he was acting right, and that he had got possession, in a proper manner refused to comply, and still continued to erect his building, which was now in a very forward state. The present information had been filed to recover this land, thus obtained by Mr. Cooper, who had not expended less than £2,000 upon the building.
Mr. Wentworth appeared also for Mr. Cooper.
The following gentlemen composed the Jury:
Mr. Robert Campbell, sen. the foreman.
Messieurs. Gregory Blaxland, Wm. Walker, G.T. Savage, Thos. Mat. Hindson, D. Maziere, R. Holl, A.B. Spark, J. Atkinson, A. Warren, Robt. Johnston.
The following witnesses were called: --- -- Major Ovens, the Surveyor General, Major Goulburn, Mr. Moore, J.P. Mr. S. Terry, Mr. Thorn, Mr. McBrian. Mr. Meehan, the Attorney General, &c. The Governor had been subpoenaed, but did not appear. The Chief Justice thought that His Excellency ought to have been respectfully requested to attend by memorial; the question of right to subpoena was not, however, discussed. The point on which the evidence principally turns, was whether the Surveyor General had given instructions to measure the whole of the ground, which was divided into two parts by a stream. The Surveyor General stated that he had given instructions to the Assistant Mr. McBrian to measure only the Western side of the stream; that he shewed on the chart with a pencil where he was to commence on the S.W. Boundary, making use at the same time of the words "begin from the S.W. boundary of the Crown land, known by the name of the Military Garden." Now, the Military Garden was fenced in, and the Assistant commenced from the fence. It was further, however, stated by the Surveyor General, that the fence was not the extremity on that side of the Military Garden, and that the Assistant, instead of commencing at the fence, ought to have commenced at the stream, which he contended was the boundary of the Military Garden, and formerly known as such, and so marked on the map. The Assistant, on the other hand, swore that he understood by the Surveyor General's instructions, that he was to commence as he did, from the fence. Witnesses, who were present when these instructions were given, said they understood the same thing. On this conflicting testimony the case was submitted to the Jury.
The Chief Justice, after a few prelimary [sic] remarks on the facts which had been given in evidence, said the grants, to be valid as against the Crown, should be under the great seal and of record. [5] Of this the framers of the instructions to the Governor, under the sign manual, appeared to have been perfectly cognizant, for in those instructions it is expressly directed, that all grants made in this Colony shall be entered of record before they are to be binding on His Majesty and his successors. No grant could be valid that wanted any of the solemnities thus enjoined. No loose usages could be set up in derogation of the King's prerogative, and that portion of it which His Majesty had delegated to the Governor, must be exercised in the way His Majesty had prescribed. With respect to the Governor's acts in this instance, there had been nothing in them but what might have been expected. It appeared that Messrs. Cooper and Underwood had applied to His Excellency for this land, and that it had then been refused to them. It was not likely that a subsequent application from one of these parties would be attended with more success than an application previously made by them jointly. There had evidently been a mistake in putting Mr. Cooper into possession of this land. This the evidence of Mr. Oxley, the Surveyor General, proved beyond question. It appeared in fact that it was chiefly by the instrumentality of Mr. Oxley that Mr. Cooper had obtained the promise of any land in that quarter. Mr. Oxley had interested himself in Mr. Cooper's favor, and had succeeded in getting the best side of the stream, after considerable demur on the part of the Governor. The boundaries of the land intended to be granted to Mr. Cooper, had been distinctly stretched out to the Deputy Surveyor, McBrien, by the Surveyor General, before any measurement took place. McBrien, however, appeared to have mistaken his instructions. This Mr. Oxley had distinctly sworn. His Honor did not think much reliance was to be placed on the evidence of the bye-standers. They were but casually present, and not attending to other people's business, but to their own. The conversation, therefore, between Mr. Oxley and McBrien would not be particularly noticed by them. There was certainly a good deal of hardship in this case. The defendant acting upon a mistake, and that too the mistake of a public officer, had incurred considerable expense. It is true that he had received early notice to desist from his works; but still he had made his contracts, and could not have left off but with considerable loss. The hardship of the case, however, could not do away with the principle of law. Had the defendant a right? That was the question. Had he any legal title as against the Crown? He had none. "That," said His Honor, "I lay down to you broadly. At the same time, Gentlemen, it will not be going out of my way, and certainly not out of yours to make this hardship part of your verdict."
The jury then retired, and after deliberating for a short time, returned the following verdict: "The jury find specially the following fact, that Mr. Cooper obtained possession of the land in question, in the manner hitherto practised in the Colony." 
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