Sparke v Osborne [1908] HCA 46

7 CLRJ OF AUSYRALIA. 51

to administration. But in the present case neither of those 4. ©. oF A. things comes in the way, for the order had not been drawn up, Ree" and until an order is drawn up the Court can correct it. So that Coxxouy the Supreme Court had jurisdiction at the date of the applica- yy .0.eexey. tion to make the appellants parties to the action, and we think they were entitled ex debito justitiw to be made parties.

The appeal will therefore be allowed and the order of the Supreme Court will be discharged. By consent the costs of all parties will be paid out of the general corpus of the estate, including the costs of the application to Hood J.

Appeal allowed. Order appealed from dis- charged.

Solicitors, for appellants: Abbott & Beckett.

Solicitors, for respondents: NV. J. Casey; W. H. Lewis; J. B. Kiddle.

uaa bw (HIGH COURT OF AUSTRALIA.] SPARKE . ® 2 : é es APPELLANT ; DEFENDANT, AND OSBORNE $ é ¢ : 3 6 . RESPONDENT. PLAINTIFF, A. 1908. ON APPEAL FROM THE SUPREME COURT OF ae NEW SOUTH WALES. Sypyey, July 27, 28, Adjoining landowners, liability of—Failtre to keep down noxious weed—Prickly al. pear growing naturally on land—Injury to neighbour's fence—Nuisance. aaaaten

Barton, An occupier of land is under no duty at common law to keep down a O'Connor,

noxious weed, such as prickly pear, growing naturally on his land so as to

H.C. or A. 1908.

HIGH COURT [1908.

prevent it from spreading or extending to his neighbour's land ; and if, owing to his failure to keep it down, it grows in such a way as to damage his neigh- bour's fence that is not sufficient to render him liable.

Crowhurst v. Amersham Burial Board, 4 Ex. D., 5, and Smith v. Giddy, (1904) 2 K.B., 448, distinguished.

Decision of A. H. Simpson C.J. in Equity (Osborne v. Sparke, (1907) 7 $.R. (N.S. W.), $42), reversed.