THE BROKIL ESTATE BETWEEN MT MARTHA (ELLERINA RD) AND THE LINE OF MARTHA COVE WATERWAY.
The Brokil Estate was the northern 1000 or so acres of Jamieson's Special Survey with its north east corner being the corner of Bulldog Creek and Foxeys Rds in Melway 151K11. LIME LAND LEISURE gives much detail about the purchase of the Survey in three parts by William John Turner "Big" Clarke and his sale of the northern part to John Vans Agnew Bruce. The following court case shows that Bruce owned the Brokil Estate by 1861 and that he had leased it by 1861 to tenants named Atkins and Ekins. In A DREAMTIME OF DROMANA, Colin McLear stated that Edwin Louis Tassell had settled on the Survey in 1861, which is now obviously incorrect. Tassell was not the first lessee of Bruce's estate but was the first to pay rates on it. Tassells Creek, originally called Bruce's Creek in a lease advertisement following Tassell's death (see my journal SAFETY BEACH AND THE SURVEY) was the Port Phillip Bay end of Brokil Creek. It is not clear when Atkins and Ekins commenced their lease but the purpose of this journal is to make clear that they were leasing the property from Bruce before Tassell.
Leslie Moorhead stated in OSBORNE STATE SCHOOL that Henry Dunn had leased the Mount Martha Sheep Station, which had consisted of James Hearn's extensive grants (between Ellerina Rd and Watsons Drive)and the survey. Colin McLear stated that Dunn had leased the survey from 1846 to 1851. Bruce calls his estate the Mt Martha Sheep Station in his testimony.
BRUCE V ATKINS AND EKINS (BOTTOM OF COLUMN 4, P.7,ARGUS, 20-12-1861.)
BRUCE V. ATKINS AND EKINS.
A motion on behalf of tho plaintiff, a lessor, to restrain the defendants, lessees, from cutting timber trees on land leased to them for five yoars on tbe Mount Martha Station, at Dromana. Mr, J. W. Stephen for the plaintiff, Mr.Abraham for Atkins, Mr, Billing for Ekins.
The case mado for the motion was substantially that the plaintiff had purchased about 1,100 acres of land, much covered with timber and scrub ; that he had improved the land by clearing about fifty acres, and putting up a hut and buildings, by fencing in 800 acres, and by cutting down somo portions of the timber, and preserving other portions of it, in such a way as at once to increaso the capability of the land for pasturage, to leave sufficient shade for cattle, and to increaso the beauty and ornamental value of the property ; that ho had let to Atkins, for five years, at £100, for pastoral purposes, and that Atkins and Ekins had, in partnership, begun to waste the estate by stripping it of its timber, in such a manner as to diminish its value for pastoral purposes, and as an ornamental estate.
The case for the defendants was, that they had leased the property as a farm, and for cultivation purposes ; that it was no waste of a farm to cut down the wood which they bad cut down ; that no wood properly called timber trees had been cut down, but only such wood as sheoak, swamp oak, cherry, honeysuckle, snd underwood-no
stringybark, or other wood fit for building purposes. The authorities cited were-Brooks v. Bedford, Viet. Law T., 101 ; Turner v. Jackson, Viet. Law T., 127; Duke of St. Albans v. -, 8 Beav.,354 ; Micklethwaite v. same, 1 De G. and J., 504 ; and Woodfall's L. and T.
His HONOUR.-In this case Mr. Bruce seems to have purchased about 1,000 acres of land in a situation and of a sort which in most countries would be called forest land. Ho improved it by fencing in the greater part of it, and-as he himself describes it-by clearing fifty acres of it of timber, and preparing it for crops.
He then leased it to one of the defendants, and the lease contains stipulations as to the " improvements" at the end of tho term. Having thus described what he meant by improving the land, he now seeks to restrain the tenant from doing the very thing which he has called an improvement-namely, the clearing of the land of
timber and preparing it for cultivation and crops.
He says that in cutting down the timber he saved certain trees, which he then, in his own mind,regarded as ornamental timber. Neither he nor they agreed in any way as to what should be preserved, but he alone was anxious in his own mind to preserve certain trees which he regarded as ornamental. He does not say that he communicated to his tenants that ornamental timber was to bo preserved, or what he regarded as ornamental; and we must now go, not by what he thinks or then thought, but by what he communicated to them as ornamental, and as to be preserved, because such. The case, therefore, so far as founded on any possiblo rights arising out of the ornamental timber, seems to be not sustained,and to rest very much on matter of fancy. But then, as between landlord and tenant, in the absence of anything communicated to ihe tenant the case must be considered on the terms of the written agreement itself.
No doubt there is a great difference in the position of the mother country and Victoria in this respect, that in the mother country it is the removal of timber from land which it is most often desired to guard against, whilst here the removal of timber was more often the object to be secured. But that makes it only the more necessary that the real intentions and interests of the landlord should be plainly stated, and guarded by
express stipulations, and not left to mere legal intendment from loose and vague provisions such as were used here. On the whole it will generally bo better here, notwithstanding the difference in this respect between the two countries, that in the construction of such agreements concerning land the same words shall be held to bear the same meaning in instruments in Victoria that those words bear in the mother country, and that parties be left to interpret themselves differently by express provisions where tbey use suoh words with different meanings.
In the mother country, under a lease for five years a tenant would have a right to cut down and romove all wood which does not come under tho denomination of timber, and no right to cut down anything that does. But there
remains the difficult question of what are timber trees here. This question is also left in a very vague condition on the particular facts of this case. I think I am generally to understand by timber trees all trees used for building purposes in the place where the timber is growing.
Some trees are timber in England everywhere; some are timber nowhere there; others are of a mixed nature, and are, according to the custom of the locality, timber in some parts and not timber in other parts of the country. There also the circumstance which determines whether the wood is timber is its use for building purposes only ; not, I believe, its use for fencing purposes, as has been argued here. Now I cannot take
judicial notice of what sorts of wood are timber trees here, either generally or in particular localities. It must be left for the parties to show that by evidence in each case.
The plaintiff has here sought to restrain the defendants from cutting all trees : he has so for certainly asked more than he is entitled to : and it was for him to give evidence in support of his application ; to define
his right, and the extent to which it has suffered, and the remedy which he seeks to enforce. He has not defined what classes of trees are timber,or what timber trees have been cut down. The defendants, on the other hand, do give some information as to one class of trees whioh they seem to admit are timber trees, by saying that only stringybark trees are such in this locality, and none others. That evidence comes, however, from the defendants themselves, and I do not think I ought to take it so as to preclude either party hereafter from better proof.
There are enough materials before me to justify me in granting an injunction confined in its terms to the stringybark trees only. Let an injunction go as to those. Costs of motion to be costs in the cause. By consent, the defendants to have liberty to remove what is already cut ; and [as we understood] to keep an account of all trees cut in future, because it may turn out at the hearing that other than stringybark trees are to be deemed timber-trees there.
on 2015-07-23 10:51:11
Itellya is researching local history on the Mornington Peninsula and is willing to help family historians with information about the area between Somerville and Blairgowrie. He has extensive information about Henry Gomm of Somerville, Joseph Porta (Victoria's first bellows manufacturer) and Captain Adams of Rosebud.