Wallace et Al v Whyte

• Jurisdiction: Jamaica
• Judge: Macgregor, C.J.
• Judgment Date: 10 July 1961
• Neutral Citation: JM 1961 CA 3
• Date: 10 July 1961
• Court: Court of Appeal (Jamaica)

Court of Appeal

MacGregor, C.J., Cools-Lartigue, J.A.; Waddington, J.A.

Wallace et al

and

Whyte

Appearances:

Carberry for the appellant

Cools-Lartigue for the respondent

Civil practice and procedure - Resident Magistrate's Court — Civil action — Defence to be stated in Court — Judicature (Resident Magistrates) Law, Cap 179 [J], s 184.

Macgregor, C.J.

1 This is an appeal by the plaintiffs from the judgment of the Resident Magistrate, Westmoreland, in an action in which the appellants claimed damages for that

‘The defendant by himself and his agents in March 1958, and on divers other days and times during the said month of March and the filing of this plaint wrongfully and unlawfully broke and entered the plaintiffs’ land … bushed the plaintiffs’ land and cut a roadway in the said land….’

2 The resident magistrate held that the defendant had a right-of-way across the plaintiffs' land, and that the entry to clear the way was in exercise of that right.

3 The appellants are in possession of a portion of land, half an acre, which was purchased by their father Joseph Wallace in 1910 from G. E Lawrence who owned the whole run of land in that area. The receipt given by Lawrence to the purchaser reads:

‘Joseph Wallace bought of George Edward Lawrence a half acre of land… for the sum of six pounds which land Buting and binding on the North by M. A James on the West by the parochial Road South by Thomas Ricketts East, on remaining portion of the said land owned by George Ed Lawrence.

Received payment in full dated this 9/9/10.’

4 Joseph Wallace received at the same time a plan of the half acre prepared by Mr.H.C Whittingham, a surveyor, on 9 September 1910, showing the boundaries set out in the receipt. On the plan is a dotted line, just inside the southern boundary and running parallel to it from the eastern to the western boundaries. The scale, which is thought to be 5 chains to 1 inch, is too small to measure the distance that the dotted line is from the southern boundary. There is nothing on the plan to indicate what is meant by the dotted line.

5 In 1912 Alfred Hines built a house on the land for Joseph Wallace. The house is now occupied by the appellants and the south-western corner is 4 feet 2 inches from the southern boundary of the land. This is shown by a plan made by Mr.Roye, Commissioned Land Surveyor, from measurements made when he entered with the respondent and prepared after a suggestion of this Court made when the appeal was first before the Court in June 1959.

6 The respondent is now the owner of that portion of land of G. E Lawrence described in J.Wallace's receipt as butting easterly on his land. He purchased it in 1927. He produced the registered title with the plan annexed of G. E Lawrence, which also showed the appellants' land including the dotted line, and a...