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SUPREME COURT.
TUESDAY, NOVEMBER 6, 1855.
(From the S. M. Herald.)
THE NEWCASTLE COAL AND COPPER COM-
PANY V. BROWN.
(Before the Chief Justice and a jury of four.)
The trial of this case, which was com-
menced on Monday, was now resumed and
concluded.
It was an action of trespass, to determine
the right of possession to a wharf at New-
castle. Two acts of trespass were averred in
the declaration ; first, an injury to the com-
pany's coal shoot ; secondly, the anchoring
of a ship in front of the wharf, so as to pre-
vent the company from continuing the ship-
ment of coal in the ordinary course of their
business. Damages were claimed for the
repairs of the shoot, for loss of profit during
the time that the company's business was
stopped, and for one or two other matters of
loss of a trifling nature. The pleas were the
general issue, and that the plaintiffs were
" not possessed" of the locus in quo.
The Solicitor Generaland Mr. Broadhurst
appeared for the plaintiffs, and Messrs. Dar-
vall and Meymott for the defendant.
The plaintiffs and defendant occupied the
opposite sides of a wharf at Newcastle ; but
the latter (defendant) claimed a right, also,
to that portion of it which the former used.
Neither party had a good title to the space
thus occupied, as against the Crown, and the
contest was simply one as to the rights
derivable from priority of possession, which
rights were claimed by both parties. The
disputed space was at the foot of two of the
streets of Newcastle, which had at those
parts of them no existence except upon the
surveyor's plan. Permission to use this as a
wharfhad been granted by the Crown several
yeiirs back to Dr. Mitchell. Of this per-
mission the grantee had never availed
himself personally ; but the rights which be
had thus obtained had been transferred to
others. It was through these trausferrees
thut the plaintiffs claim to derive their
right. But the evidence as to the precise
nature of the derivative title, or supposed
derivative title, on either side, was shut out
upon various legal objections, and the right
of possession was made to depend upon
evidence as to actual possession, and as to
its priority, which was, as has already been
stated,conflicting. The claims and acts on
either side, and the history of the wharf itself,
were fully gone into. The trespasses were
these : The defendant, having a vessel called
the Beaver, loading near his wharf, had
caused her to be so placed as to prevent the
approach of any vessel lo the Company's
shoot. There was evidence on the part of
the plaintiff to show that this was done
with the avowed intention of preventing
the Company from currying on their
business, also of the vessel having con-
tinued there until she was removed
by the harbour-master. On the other hand,
it was declared that she was necessarily in
this position for the purpose of loading. Thus
the Beaver remained six days, and during
this time a vessel called the Imperial, which
was waiting to load at the Company's shoot,
was prevented from'approaching. The lots
of profit during the six days was estimated at
£150, i.e , loss of 5s. per ton profit upon 100
tons of coals per diem. The injury to the
shoot was inflicted by the main boom of the
Beaver striking against it, when she was
caused to heave by the ripple which was
raised by a passing steamer. The cost of
repairing this was said to have been £8 7s.,
but there was evidence on the part of the
defendant that the injury was of so trifling a
nature as that an outlay of a few shillings
would have been sufficient to repair it. In
addition to relying upon the evidence, as
showing, he contended, a superior right to
possession on the part of the defendant, the
counsel for the latter raised a point of law as
to the alleged trespass by the-anchoring of
the Beaver, namely, that this being a navig-
able river a shipmaster had a right to anchor
his vessel in that river where he pleased,
until directed to remove her by the proper
officer of the Government, and that no mere
possessory rights of wharfage could operate
against this power of anchoring at will in
such a place.
Sir ALFRED STEPHEN directed the jury
that in this, as in all other cases of the same
description, their determination of the ques-
tion of right must be based upon the evidence
as to the mere act of possession. Even
although a person might have no right what-
ever as against the Crown, still, if he had an
actual exclusive and undisturbed possession,
his title would be sufficient against all the
world. The evidence of a Crown grant or
license would be of importance to a defendant
if set up as an answer to the plaintiff's .prima
facie right derived from possession alone, but
this right was in itself sufficient until a better
counter title was set up against it. Even if
the defendant had a prior right by possession,
still if he had suffered the plaintiffs, by occu-
pancy for any length of time, to acquire that
right without asserting his own claims, be
could not revive those claims; for even
although possession might have been ob-
tained by a trespass-, it was a' sufficiently
good title to maintain an action for trespass,
provided it had been actual, exclusive, and
undisturbed. If the plaintiffs had such a
right derivable from possession, they must
not be interrupted in their full enjoyment of
that right by the anchorage of a ship in
front of their wharf in such a manner as to
prevent them from carrying on their business.
Neither must the occupier of an adjoining
wharf allow a vessel to lie along side his
wharf in such a manner as to take up bis
neighbour's frontage.
The jury found a verdict for the plaintiffs,
with £136 7s. damages, viz., £128 upon the
issue raised as to the trespass by the Beaver,
and £8 7s. es to the issue raised in reference
to tbe injury to the shoot.
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