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HEPPDiTGSTONE V. PIESSE.
(Before Mr. Justice Hensman and a Jury
of Six.)
This was an action for damages brought
by the plaintiff, Robt. J. Heppingstone,
against the Commissioner for Railways, in
respect of certain land taken, the plaintifi
claiming £300 compensation.
Mr. Piikington and Mr. W. James ap
peared for the plaintiff, and Mr. G. Leake,
Q.C., and Mr. G. T. Wood were for the
defendant.
Mr. Piikington, in opening, said that
this was an action for compensation for the
resumption of land by the Commissioner
for Railways for tbe 'building of the Bun
bury -Perth railway. The plaintiff \ras a
former, and for almost 30 years he had re
sided in the Brunswick' district. At one
time there was in this colony th'e W.A.
Land Company, which acquired large
tracts of land for speculative purposes.
That company acquired land in the Bruns
vrisk district, which included the land in
question. In 1877, or thereabouts, the
plaintiff wished to acquire some -of this
land from the company, and he made in
quiries, with the result that be was ad
vised to settle on the land and risk the
owner turning up, as he had not appeared
for some time. He took possession of the
land, built a house upon it, and generally
improved it. He remained in undisturbed
possession until 1892. The plaintifi would
show that he was looked upon as the
owner of the land. In 1892 the Bunburr
line was built, and in the course of build
ing that railway it was necessary that it
should pass through plaintiff's land. Plain
tiff's orchard had been destroyed, and he
had been cut off from the Bunbury road.
His house was cut off entirely from the
river, thus depriving him of his -water
supply, and altogether his property had
received considerable damage. Although
the railway was built in 1892 the land was
not resumed until March 4, 1894. Accord
ing to the Railways Act of 1878 notice of
the resumption of any land by the Govern
ment must be given in the 'Government
Gazette,'' and aiso to the owner. The Act
also provided tliat the resumption -was
deemed to have been effected from the day
the notice appeared. 2\he notice in ques
tion appeared on March 16. Another sec
tion of the Act provided that, in all cases
where land was resumed, full compensation
should be made to the owners of the hind.
The defence was that the plaintiff was not
the owner of the land, and, therefore, had
11U CUUJU W «^UIUjJClia-lljlUU. .LU LUC SC^UJIU
place, they said they had the right to re
sume the land in acordance with a proviso
in the original grant. It would be shown
that the plaintifi bad a title by possession,
having been in possession of the. land for
12 years. He bad since obtained a title in
fee simple, and was entitled to be registered
as the owner. .Even if the plaintifi only
held a possessory title, he was entitled to
compensation. He then referred his Honor
to two cases, Ascher v. Whitlock and, ex
parte, Winburg, to show that a possessory
title entitled the holder thereof to the pro
perty.
The plaintiff, Robt. J. Heppingstone, was
called to bear out the counsel's opening
statement. After relating the circumstances
that led np to his occupation of the land
in* question, he said that in 1879 he re
covered damages in the Local Court, Bun
burv, against a man for trespassing on his
laul and pulling up a portion of the fenc
ing When the line to Bunbury was built
it passed through his orchard, and the trees
xrers all destroyed. The land resumed by
tlie . Government came within four or Sve
yards of his house, and the fence was only
about eight yards away. Witness made a
c-a!-s for compensation in 1892, and placed
the matter in the bands of Mr. Stanley,
solicitor, of Bunbury. Witness had after
wardd lost a number of trees, which were
set on fire by sparks from passing engines.
Subsequently the Collie line was bnilt, and
also passed through bis land. Witness con
sulted fresh solicitors, and a claim for
compensation was made in respect to both
lines With regard to the claim respecting
the Collie line, arbitration proceedings had
been conducted, and he had received £380
compensation. Witness had since obtained
a certificated title for t¥e land, excluding
Under cross-examination by Mr. Leake.
the plaintiff said he had beard of land
jumpers, but he did not know that he had
jumped the land in question. Before tak
ing possession of the land, he obtained the
permission of Mr. Clifton, tbe agent. The
land was previously owned by men named
Smith and Hayward, bnt he 'believed they
were dead, as nothing had been heard of
them. In a declaration, made before Mr,
Quinlan, J.P., witness said that in 1S81 he
had taken possession of the land. He knew
he would have to be in possession of the
land for 12 years to become the owner by
possession. The value of the land in 1892,
when it was resumed, was over £10 an
acre. Witness's orchard consisted of about
40 or 50 trees, which were worth about £5
or £10 each. The house on the land was
built about t-bree Tears before he lived iu
it.
The evidence of J. S. Gibbs, E. C. B.
Locke, and D. Heppingsione was taken to
show the extent of the damage done to
plaintiff's property through the resemptioa
of a portion of tie land for railway pur
poses.
Mr. James pnt in the claim for compen
sation, aoS. t&e refusal of the Commissioner
to grant it.
The court rose at 4 o'clock until 10.30
this morning.
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