1851 – James McEvoy v James and William Tyson re trespassing

The Sydney Morning Herald, 1851 March 14, page 2

On Thursday 13th March 1851 the Supreme Court heard a case brought by James McEvoy against James and William Tyson II (1808-1875). McEvoy claimed the Tysons had trespassed on his Moon Moon Curra property, which was located at the junction of the Lachlan and the Murrambidgee rivers. The Tysons, who were in possession of a neighbouring property, claimed that under a previous agreement between the litigants the land in question belonged to them, not to McEvoy.

James Tyson (only 22) appeared representing both his elder brother and himself.

The jury ruled in favour of the Tysons.

Here’s a transcription of the pertinent parts of the article:

SUPREME COURT. – Thursday.

Before His Honor Mr. Justice Therry and a Jury of four.


This was an action of trespass on a run called Moon Moon Curra, the property of the plaintiff. The defendants pleaded the general issue, and that the locus in quo was not in the possession of the plaintiff at the time that the supposed trespasses were alleged to have been committed.

The Solicitor-General, Mr. Foster and Mr. Holroyd, conducted the case for the plaintiff; Mr. Darvall and Mr. Meymott appeared for the defendants.

This was what is commonly known as a squatting case. On the part of the plaintiff, it was shown that he purchased the station called Moon Moon Curra, the station at the junction of the Lachlan with the Murrumbidgee, some time in 1848. Shortly after he came into possession, finding the defendants’ cattle running over his station, he commenced an action of trespass against them, which was subsequently discontinued under the following arrangements : ” Memorandum of agreement made and entered into the 25th day of March, 1850, between James M’Evoy, of Sydney, and James Tyson, for himself and brother William, both of the Lachlan. The conditions are, that we give up to the said James M’Evoy all claims and title to that portion of Crown land which has been in dispute between the said James M’Evoy and myself and brother, bounded by our hut, on the south bank by the Lachlan River, with a line running due south from our hut to the undisputed ground in the plain, the run of the said James M’Evoy. We further agree to pay all law expenses incurred, on the consideration of the said James M’Evoy stopping further proceedings (Signed) James Tyson, James M’Evoy.” In the month of August following, plaintiff and one of the defendants, James Tyson, went to Mr. Rowley, the plaintiff’s attorney, to pay the plaintiff’s costs. Plaintiff joked James Tyson about the payment of costs, when the latter observed that he did not mind about the costs, he had a better run than ever. He took out a plan from his pocket, and pointing to it said he would go so many miles down the Lachlan. When Tyson’s attention was called to the conditions of the agreement he remarked, that he relied on this portion of it, ” the line running due south, ‘ and persisted in such line being the boundary. Mr. Rowley, addressing Tyson, said, ” you are giving up nothing, but getting more.” Plaintiff interposed, and asked Tyson if he was going to to take a point like that, and if he had not acted honorably. Tyson replied, ” it’s Shepperd’s fault, he did not know the bearings of the compass,” It was proved by Shepherd, the plaintiff’s superintendent, that after the memorandum of agreement was signed, he went with James Tyson to the disputed part of the run. Shepherd claimed for plaintiff as a boundary a line running south-east from defendant’s hut, whilst defendant, James Tyson, said he claimed a line running from the same point due south. The plaintiff’s counsel proposed to go into evidence of a conversation which had taken place at the time the agreement was signed, Mr. Darvall objected to its reception, but after a lengthy argument it was admitted by his Honor.

Mr. Darvall, in addressing the Jury for the defendants, stated that it was not his intention to call witnesses, and overload the case with evidence, since there was nothing in the plaintiff’s case to rebut. The only witness acquainted with the run which the plaintiff had called was Shepherd, the superintendent, who had only been five times at the station altogether, and had never remained more than a week or ten days at any one time. It was shown that Sams, who had been stockman on the station before plaintiff came into possession, and had remained in the same employment ever since, was in Sydney, and had not been called. This looked suspicious, as Sams might have shown where Tooth’s cattle ran when plaintiff came into possession. The learned counsel then commented at some length upon the wording of the agreement, contending thatit was strictly to the letter binding upon the plaintiff.

His Honor, in summing up, told the Jury that this squatting action was different from the usual actions of this kind that were brought into Court. Usually, priority of occupation and possession, continued uninterruptedly afterwards, were the tests by which an action of this kind was determined. The occupation, however, in this case arose upon an agreement. The plaintiff claims upon an occupation and a surrender by the defendants of any claims they might have to the station. The defendants on the other hand, rely upon an agreement. The questim for the determination of the Jury was, did the plaintiff and defendants agree upon aboundary line and if they did, what was that line. When there are expressions of ambiguity in an agreement, parol evidence maybe admitted to explain them. Here there is a manifest mistake in the agreement by the insertion of the word ” due.” There was a mistake on the point of the compass, for what Shepherd ,described as “due south” was in point ot fact “south-east.” This, however, was a question for their decision. The damages which the plaintiff has sustained were slight, and if they should find for the plaintiff, the damages would only be for the grass which the defendants’ cattle had consumed.

The Jury retired for nearly an hour, and on their return into Court found a verdict for the defendants.

Attorney for the plaintiff, Mr. Rowley ; for the defendants, Messrs. Dunsmure and Longmore.


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APA citation
THE Sydney Morning Herald. (1851, March 14). The Sydney Morning Herald (NSW : 1842 – 1954), p. 2. Retrieved January 12, 2016, from http://nla.gov.au/nla.news-article12925538



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