Biki & Anor v Chessells [2004] VSCA 70

7. This appeal arises out of an unfortunate dispute between neighbours who farm land in the vicinity of Invergordon, a small rural settlement in the Goulburn Valley, some thirty or so kilometres north-east of Shepparton. The dispute concerns the form and effect of an easement, and especially the right to repair and maintain a water channel constructed under the easement, which was granted in 1987 by Douglas John Chessells, the brother and predecessor in title of the respondent, to Mr and Mrs Ruscoe, the predecessors in title of the appellants, and of an equitable easement in virtually identical terms (and the same right thereunder) affecting the lands of the appellants and respondent. The easement in question, in substance if not necessarily in form, is of a kind not unfamiliar to those who live in the Goulburn Valley, for it provided to the Ruscoes, who farmed land north of Invergordon Road, a right, briefly stated, to enter and, from time to time, to go and pass along a designated strip some ten metres wide extending over land south of Invergordon Road owned by Mr Douglas Chessells and to dig and construct, and thereafter to use and repair, a water channel along the designated land which was intended to carry water from the East Goulburn Main Channel across Mr Chessells' land for the purpose of irrigating the Ruscoes' land, now owned by the appellants. In short, the appellants have claimed a general right to come in addition onto those parts of the servient tenement "immediately adjacent" to the easement as being "reasonably necessary" to carry out repairs and maintenance to the channel. The learned judge, Byrne, J.[1], refused to make an order declaring such a right, and from that refusal the appellants have appealed.

10. The easement so granted on 4 December 1987, created pursuant to the Transfer of Land Act 1958, was expressed in terms that Douglas John Chessells as the registered proprietor of the land more particularly described in Certificate of Title Vol. 9714 Fol. 220, in consideration of the payment of one dollar, transferred to the Ruscoes, their successors in title registered proprietor and proprietors for the time being of the dominant tenement, being the land more particularly described in Certificate of Title Vol. 9221 Fol. 826, "full right and liberty to them or their servants, agents and workmen at all times hereafter" -

"1. To enter in and upon the land coloured orange on the plan annexed hereto and marked `A' (called `the said land') and to clear the said land of obstructions and to dig, excavate and construct a water channel and water works for the purpose of water supply through in and upon the said land in such manner of such depth and nature as the Grantees or their successors in title may deem advisable and to use such channel and water works for all purposes of water supply and also to repair and alter the said channel and water works and also to deposit and place and allow to remain on or along the said land all earth gravel or other substance matter or thing which may be removed or excavated in clearing the said land or in the making or construction of the said channel or water works or in repairing or altering the same and also to go pass or repass for all purposes aforesaid either with or without machines plant and equipment through over and along the said land. 2. To construct a fence along part of or the whole of the boundary of the said easement shown with a broken line on the plan annexed hereto and marked A."

As stated there was annexed to the "creation of easement" a surveyor's plan marked "A" which showed the whole of Douglas Chessells' servient tenement which was a piece of land marked as immediately south of Invergordon Road but which had a "dogleg" relatively narrow strip of land which extended west to Yabba South Road. For convenience a plan[2] forms an attachment at the end of this judgment, which shows both the original and the later easements. The easement as marked was ten metres wide and is coloured orange and black on the attached plan. It ran, in the first place, for some 216 metres or thereabouts west along the northern boundary of the land to the edge of the lot to a point where it reached a square piece of land (uncoloured on the plan) on the corner of Invergordon and Yabba South Roads, the title to which was also held by Mr Chessells. It then followed the west boundary of the lot due south for some 402 metres or thereabouts to the corner of the "dogleg". Thence it went due west for some 507 metres along the northern boundary of the dogleg which was the southern boundary of the square land. It then reached the lot's western boundary on Yabba South Road which it followed south for another 134 metres or so seemingly to the south-west corner of Douglas Chessells' servient tenement (coloured green on the attached plan). We were led to believe that at both the north-eastern and south-western termini of the easement a pipe either brought or took the water to or from the easement.

15. As may be seen from its terms there was at that time neither an easement nor a channel and the right given was in the first place to enter upon the easement and to dig and construct upon the land a water channel to be used for water supply purposes. In late 1988 to early 1989 the Ruscoes arranged for a water channel to be constructed along the easement which resulted in the construction of a channel with a V-shaped bottom drain about three to four metres wide from the toe of one embankment to the toe of the other, except that a small length was about five to six metres wide.

18. On 20 June 1989 Douglas Chessells' brother, Graeme William Chessells, the respondent, became the registered proprietor of the servient tenement. The respondent wished to laser grade the land to the east of the north-south alignment of the Ruscoes' water channel. Upon advice the respondent sought to relocate the east-west alignment stretching to the Yabba South Road from the northern boundary of that land to a point very close to its southern boundary, although he wished to build a channel in his own right on the southern boundary of his land. At all events, in circumstances which need not be examined in detail, a new channel was built by him about twenty or so metres out from the southern boundary of the respondent's land, together with an extension of the north-south alignment to reach it, which is marked pink on the attached plan. At the same time the former channel on the northern and western boundaries of the dogleg of the servient tenement was filled in. The new channel was completed by about early 1990 with a V-shaped bottom and was about six metres wide, again from toe to toe of each embankment. It seems that the Ruscoes and the respondent intended that the alignment of the new water channel should be recognised by an appropriate easement to cover the relevant area but the relevant formalities were never completed. On 1 August 1995, before any new easement was created, the appellants became the registered proprietors of the dominant tenement on the other side of Invergordon Road. Not long after they took possession of their land the appellants performed some works on the new part of the water channel to make it wider and deeper, although it seems not wider than six metres. Although these steps sowed the seeds of dissension no proceedings were taken by either party at the time.

21. It was only in the latter part of the year 2000 that the litigation began when it seems that the respondent took steps to close off the new water channel in an attempt to return it to its original alignment. That led to an interlocutory injunction being granted by Smith, J. on 21 September 2000 requiring the respondent to remove a blockage in the channel and otherwise preserving the status quo until the hearing of the action.

24. The statement of claim, as first pleaded, sought a declaration that the appellants were entitled to an equitable easement in similar terms to the registered easement over what I shall call the diverted channel which took it along the southern boundary, or at least close to that boundary, of the respondent's land up to Yabba South Road. Further, or alternatively, the appellants sought an order that the respondent grant a registrable easement over that same land which was delineated and marked on a plan attached to the statement of claim. A careful examination of that attached plan, however, shows that apart from the section which extended the existing easement south towards the southern boundary of the respondent's land, the equitable easement and the new easement sought by way of grant was to be 22 metres rather than ten metres wide.

27. The defence filed nearly a year later contained an admission by the respondent that he had created an new extra easement in favour of the plaintiffs but that it was only ten metres wide. Although other matters were raised and some further relief sought, there were at this early stage no other significant issues raised by the pleadings other than certain general claims seeking injunctions restraining the respondent from interfering with the easement and water channel.

30. Indeed, when the trial of the action began before Byrne, J. in the Trial Division, the respondent, consistently with his defence, again indicated his willingness to submit to an order that he create a new easement now covering in particular that part of the channel which took it almost to and then close by the southern boundary but with a width of only ten metres, as in the original easement. It seems that at this stage of the litigation the appellants were content to take an easement in that form and of those dimensions so that in effect, if not explicitly, the respondent agreed to the appropriate declaration and orders for the creation of the new easement upon condition that the old easement was cancelled.

33. By this stage, however, another issue had surfaced, at least from the time of the delivery of an amended statement of claim in July 2001, which raised the issue which substantially was the only dispute which the learned judge had to resolve and which is the sole issue before this Court on appeal, namely, whether the appellants had a general ancillary right to come in and upon the respondent's servient tenement to repair, maintain or alter any part of the easement and were not confined in effect to entry upon and use of the ten metres strip granted by the original and the admitted new equitable easement.

36. How this second issue arose is by no means clear. Undoubtedly the parties were at loggerheads over the easement, where precisely it should run and what was its proper width. Shortly after taking possession of the dominant land in 1995 the appellants brought in their own contractor who expanded the channel to an unspecified extent and gave it a dish-shaped bottom in place of its V-shaped bottom and raising the embankment somewhat. It seems that for this purpose the contractor may have obtained access to and along the new channel by bringing in an excavator with a large scoop along the land between the appellants' and the respondent's channels near the south boundary. It likewise appears that part of a fence erected by the respondent on one side of the easement was destroyed, presumably by the excavator. There is no evidence available to this Court that this led immediately to any threat of proceedings, although it must be emphasised that, for reasons best known to the parties, only part of the evidence adduced at the trial, and certainly none of the oral evidence including cross-examination, has been included in the appeal book.

39. The evidence also shows that the appellants' contractors came onto the respondent's land from time to time to clean and maintain the channel which on each occasion seems to have grown in size and width, though to what extent is not clear. Likewise in the period since 1995 the respondent had observed a tractor owned by the appellants spraying weeds in the water channel and this tractor operated also within the area between the two water channels. The respondent asserted that in that period he had "often informed Mr Biki that he is only entitled to a 10 metre easement and that he is not permitted to have access to any other parts of my land". None of this seems to have led to litigation but, for reasons which are not entirely apparent, the respondent then retained another contractor to relocate the new water channel to its former alignment. Works were commenced to reinstate the old water channel but the new water channel was not blocked at the stage when the proceedings began which, as I have said, were first intended to enforce the appellants' equitable rights to the new channel easement. It is possible that these events induced the appellants in the first place to claim a 22 metre wide easement for their water channel.

42. There was, it may be noted, no claim relating to these ancillary rights in the original statement of claim as filed. That only saw the light of day in an amended writ and statement of claim filed on 18 July 2001 and dated 27 June 2001. At that stage the claim of the appellants to enter and pass over the servient tenement for all purposes including the excavation and construction of a water channel, as well as its maintenance and repair, was expressed only as requiring their imposition as terms and conditions of the new easement which they sought. In the final version of the statement of claim, in fact served and filed on 11 November 2002 during the trial, the grant and consequent registration of the new easement were separated from the issue of ancillary rights in respect of which the appellants sought a declaration that they and their successors in title should "be entitled to enter upon such portion of the land coloured green [scil. the whole of the servient tenement] as this honourable court deems appropriate, immediately adjacent to the said easement coloured orange and black on the plan annexed ... as may be reasonably necessary for the purpose of repairing, maintaining and altering the said channel in the said easement".

45. There was some small amount of additional evidence relating to the nature of the kind of easement in issue and related questions of access. Both the respondent and at least one expert witness called on his behalf said that the standard easement for the purpose of water channels was no greater than ten metres in width but that the channels themselves were only between three and five metres in width. They said in substance that in those circumstances an easement of ten metres was sufficient to enable proper repair and maintenance works to be carried out along the easement without the necessity to go beyond it and that an appropriate track for those purposes could be placed next to a channel which was not more than seven metres wide. One must assume, in the absence of any contrary evidence at least in the appeal book, that what was there contemplated was regular and conventional maintenance and repairs[3], for nothing was said as to the need to deal with more extensive damage to such a water channel.

48. As I have said, when the matter came on before the learned trial judge there was by then no dispute that the appropriate new easement to be granted by the respondent to the appellants was that marked pink (on the attached plan) towards the southern boundary of the servient tenement and that it was not to be in excess of ten metres wide. The easement ultimately sought and granted was expressed in language virtually identical to that originally granted in 1987, so that on the issue of ancillary rights the matter was argued by the parties on the assumption that the new or varied easement would be expressed and registered in those terms. The only difference that can be discerned is that the "land" in the first line of the easement which was originally described as "coloured orange" has now been described as the land "marked E-1" and it follows, as was the case, that there was a new annexed plan which formed part of the judge's order[4] and which set out the course of the new easement, as well as most of the old (apparently the part running along Invergordon Road and marked orange on the attached plan was also to be cancelled), with an enlargement on the plan in the order of a significant proportion of the new part of the easement. A consequential order was sought and made for the cancellation of the old easement.

51. Having acknowledged that the parties had agreed on that course relating to the substitution of a new easement, his Honour turned to the question remaining in dispute, namely as to what, if any, ancillary rights might be claimed by the appellants. In their further amended statement they had, of course, sought only such right to enter upon the rest of the servient tenement "as may be reasonably necessary" for the purpose of repairing, maintaining and altering the easement channel. So his Honour commenced, correctly in my opinion, by stating that the secondary or ancillary right which the law will confer can be "no greater than is reasonably necessary to make effectual the primary right granted by the easement"[5]. It is unnecessary to refer to the authorities cited by his Honour and which in large part were cited by the parties on this appeal. I have no reason to doubt what the judge said in that paragraph. It was properly recognised that what the owner of the dominant tenement is entitled to is no more than what is "reasonably necessary", so that it will not be sufficient merely to show that the claimed right would avoid inconvenience or that it was commonly allowed in the particular district. Nor did the judge doubt that in the ordinary case, where an easement is granted to permit water to be conveyed by open channel, that would carry the secondary right to carry out maintenance and repair work on the channel.

54. Notwithstanding the broad claims made by the appellants in argument, it seems from the judgment that the declaration sought was confined to coming upon that part of the servient tenement "immediately adjacent to the easement reserve as may be reasonably necessary"[6]. The respondent's argument was in the first place that it was not necessary for the appellants to go beyond the easement reserve to carry out repairs and maintenance but that, in any event, such a right was inconsistent with the terms of the express easement, both originally and in the form to be granted by way of substitution. As to that the learned judge said[7]:

"If the dominant tenant is permitted by an express grant to carry out repairs within the ten metre easement reserve, it cannot be reasonably necessary for him to have access to the land beyond that easement for the same purpose."

He thus appeared to accept the contention that the wider claimed right was inconsistent with the terms of the easement as granted, so that there was no necessity to grant any secondary or ancillary rights of the kind sought.

59. His Honour proceeded to consider the matter "insofar as it is necessary or appropriate to have regard to the actual condition of the land at the time of the grant in order to determine the existence and extent of any ancillary right". He said that the condition of the land did not dictate the size of the permitted water channel which was then not yet constructed, so that "the secondary right cannot be inferred from the circumstances then existing"[8]. In para.[18] he therefore concluded that, "as things then stood at the time of the grant, the ten metre strip was not insufficient, nor was there any reasonable likelihood that it would be insufficient, for the construction of both a water channel, as contemplated by the grant of easement, and the provision of access for maintenance and repair of the water channel". Again the suggested ancillary right of access was not reasonably necessary for the enjoyment of the easement. There was a further factual issue which the judge thought unnecessary to embark upon, namely, whether in the circumstances the appellants had shown that it was "not reasonably practical for him to maintain and repair the water channel by carrying out this work within the ten metre reserve". That presumably went to the question whether any injunction or additional declaratory relief should be granted in the circumstances of the case and it will not be necessary to examine that issue again.

63. The appellants' argument was deceptively simple. The learned judge was wrong, they said, because he had concluded as a matter of construction that the implied ancillary right to go on land beyond the easement land was inconsistent with the express right contained therein to go pass or repass along the easement land for the purposes of repairing or altering the channel or waterworks. If the judge were wrong in that respect, they continued, there was nothing to deny that a general ancillary right to come on the other land in the servient tenement, at least on that adjacent to the easement, was reasonably necessary for the exercise or enjoyment of the express easement.

66. One may agree that in the absence of any provision at all some ancillary right should be implied in favour of the holder of a dominant tenement to come on the servient tenement as and when necessary to maintain and repair the water channel and its surrounding works. There would have been no reason to doubt the application of the well-known dictum of Parker, J. in Jones v. Pritchard[9] where his Lordship stated:

"Once again, the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Thus the grantee of an easement for a watercourse through his neighbour's land may, when reasonably necessary, enter his neighbour's land for the purpose of repairing, and may repair, such watercourse."

Where there is a right only to use a designated water channel, there would be little doubt that it would be reasonably necessary to come on some other land for the purpose of repair and maintenance beyond the channel itself, although how far the holder might stray over the servient tenement is quite another matter.

71. The language of this particular easement, looking at either the original grant or the order made with respect to the grant of the varied easement, is not expressed in such limited terms. Before examining the arguments further it is necessary to see what rights were in fact given and at what rights the appellants continue to hold pursuant to the new easement. The easement was and still is expressed in terms which assume that no channel has been dug or used. Doubtless one should look at what it is now necessary to imply but the form of the grant is instructive. It involves not merely the right "to use such channel and waterworks for all purposes of water supply", but commences at an earlier stage by giving a right, in the first place, "to enter in and upon the land coloured etc.", being the marked 10 metre strip of the easement. The rights which flowed with that right to enter on the land were thereafter set out and included rights -

(i) to clear the land;

(ii) to "dig, excavate and construct a water channel" and works for the purpose of water supply;

(iii) "to use such channel and waterworks for all purposes of water supply;

(iv) to "repair and alter" the said channel and waterworks;

(v) "to deposit and place and allow to remain on or along the said land all earth gravel or other substance matter or thing which may be removed or excavated"; and

(vi) "to go pass or repass for all purposes aforesaid either with or without machines plant and equipment".

It will be seen that the explicit ancillary rights to enter upon the land and to go pass and repass thereon are all stated expressly to be exercisable in, upon, through, over and along "the said land, being the marked ten metre wide land designated for the purposes of the easement and shown on each of the plans". It was obviously thought appropriate and sufficient to set those rights out relating to the clearing of the land and to the digging and excavating and constructing the whole of the waterworks for the new channel, but also relating to the repairing and altering of the channel. Not only that but, lest there be any doubt as to what might be done with the earth, gravel and the like which was excavated or otherwise obtained in the digging, repairing or altering of the channel, all that material was "to remain on and along the said land".

77. Having regard to the comprehensive way in which the ancillary rights to enter upon and to go, pass and repass along the easement land have been expressed, I would conclude that upon a proper construction of the words used in the easements, there appears to be an intent to confine all work, whether at the construction or the maintenance stages, to the ten metre strip granted. When one adds to that what appears to be the uncontroverted evidence that three metre channels are common and that they are rarely more than five or six metres wide, at least in the Goulburn Valley irrigation area, then there would seem little reason to doubt that the parties thought that ten metres, as was likewise conventional for easements of this kind in the area, would be ordinarily sufficient both for the original works and for any subsequent repairs or maintenance. Although on its face it might be possible to use the whole ten metre width for a water channel, as was argued, both the language of the grant and the surrounding circumstances would suggest that the works should all be carried out within the easement. Whether there could be any further ancillary right to go on other parts of the servient tenement for purposes connected with the channel, its construction or repair, is a somewhat different question, to which I shall return below.

80. The learned judge thought that the grant which I have endeavoured to describe was inconsistent with any further implied ancillary right because, as he said, "it cannot be necessary to create such a secondary right where this right is contained expressly in the easement itself". It is not, however, apparent that his next proposition was correct, namely, that set out earlier[10]

in which his Honour said that, as the dominant tenant was permitted expressly to carry out repairs within the ten metre easement, it could not be reasonably necessary for him to have access beyond that easement for that very same purpose. What is "reasonably necessary" cannot control the meaning of an express term, nor can the contrary, except to the extent that the parties may have thought the express right would be sufficient. Moreover it cannot be accurate to state that the proposed additional ancillary right is inconsistent with the explicit right in the strict sense of the word. The giving of the explicit right to repair or alter the channel by going along the ten metre strip does not preclude the implying of an additional right to travel beyond the boundaries of the easement for the same purpose. If two such rights were given in the same document explicitly, there would be then no question of saying that the one was inconsistent with the other, so as to require the Court, if asked, to choose which provision should prevail, for the wider right could simply be added to the narrower one without there being any conflict.

85. If the learned judge was suggesting that there was some direct inconsistency, as might appear from his reasoning and which was certainly supported by the respondent on the hearing of this appeal, then I would have concluded that he was wrong. So long as the relevant ancillary right claimed was reasonably necessary for the enjoyment of the easement and related to land beyond that covered by the easement, the right claimed would not have been directly inconsistent with the stated terms of the easement, in particular the right to repair and alter the channel along the ten metre strip to which the easement rights pertained.

88. In another and somewhat wider sense, however, there could be said to be an inconsistency, and of a kind which has been frequently recognised in interpreting documents of this kind and in considering the circumstances which can give rise to the implication of rights additional to those stated in the document under consideration. In the course of argument counsel for neither party was able to draw attention to any decisions where similar questions of inconsistency had arisen so far as the implication of ancillary rights to easements was concerned. At that stage it was suggested to counsel that there may be a more general principle based on what is conventionally called the "covering the field" doctrine applied in constitutional law[11], but no authorities were drawn to the Court's attention.

91. A moment's thought will show that such an approach to construction of contracts and other instruments is not only common, but frequently resorted to when considering the implication of terms or rights. It is simply a wider form of inconsistency, namely one based on the common sense precept that, if parties explicitly provide for the giving of rights in a stated way, it is unlikely that they have intended to subject themselves by implication to some regime of rights and duties of a similar kind which goes beyond the terms upon which they have agreed. That the constitutional concept of "covering the field" has been applied in other, more mundane circumstances may be seen from a judgment of Sir Frederick Jordan, C.J. in Gemmell Power Farming Co. Ltd. v. Nies[12] in a judgment in the Full Court (N.S.W.) in which Halse Rogers and Street, JJ. concurred. In considering the terms of an agreement for the hire of chattels a question arose as to whether a term might be implied over and above a stated warranty of fitness for purpose. As to that the learned Chief Justice said[13]:

"The implied promise may also be negatived by an express provision which is inconsistent with it ... this occurs where the contract is found to contain in the same field an express provision in different terms ... The fact that there is an express provision dealing to some extent with the same subject is not, of itself, sufficient in every case to negative the implied promise ... It may appear that the express term is intended only to supplement it ... But if the express term appears to be intended to cover the field that would otherwise be occupied by the implied term, the implied term is excluded." (Emphasis added.)

The passage was cited with approval subsequently in the High Court and in particular in the judgment of Stephen, J. in Helicopter Sales Pty. Ltd. v. Rotor-Work Pty. Ltd.[14] where his Honour, in a judgment either expressly approved or at least not dissented from by three other members of the Court[15], concluded his discussion of the issue by stating:

"When the parties have chosen expressly to contract upon certain terms relating to quality the introduction into their contract of a further implied term as to quality is likely to do violence to their contractual intentions rather than to give effect to them."

97. It is unnecessary in the circumstances to examine further authorities on the subject but they are usefully described in Mr Justice Lewison's The Interpretation of Contracts[16] and, in particular, in Carter on Contract[17], who analyses with care various concepts of inconsistency, especially in relation to the implication of terms. He distinguishes[18] those kinds of impermissible "inconsistency" which would involve implication of a term (1) where any implication would as a matter of construction be directly inconsistent with what the parties have agreed and (2) where the parties have provided that no implication or no relevant implication should be made. The third category of "inconsistency", however, to which Carter refers, may well be applicable, namely that for a term to be implied it "must not deal with a matter already sufficiently dealt with by the contract"[19]. The many cases cited, including Gemmell Power and a number decided in the High Court, show that the exercise is often by no means easy, but the author resorts also to the metaphorical allusion as to whether "the parties [have or] have not, as it were, `covered the field'".[20]

100. There can be no doubt that in the present case the parties have given or been given (as the case may be) an explicit right to carry out repairs and alterations (among other matters) on the ten metre strip covered by the easement, whose purpose is obviously not confined to carrying the water channel itself. But does the right to "go pass or repass" for these purposes cover all that is "reasonably necessary" for the carrying out of repairs and alterations? The right to go pass and repass is sometimes construed as permitting only a right to move along a right of way without even any right to halt or put down passengers or goods, let alone perform any works.[21] Even if that limited view be placed on that provision in the present easement, there was also granted a more general right to "enter in and upon" the easement to carry out all the stated activities. In consequence I would see the rights given pursuant to the grant of easement as comprehending a clear right to carry out repairs and alterations on the easement land. Moreover, having regard to its terms and the surrounding circumstances, a strip of ten metres should be seen as intended to provide adequate space for the carrying out of all the necessary repairs and alterations, at least in ordinary circumstances. Especially I would draw that inference in part from the fact that the grant contemplated by its express terms that all the original clearing and construction was likewise expressed to be carried out "in and upon the land ...".

103. Having regard to its terms and extent of the area available for the carrying out of the rights of the dominant tenement, can it be inferred that the parties intended that the rights relating to the repairing and altering of the easement channel were to be found within the four walls of the grant? It must be conceded, as already stated, that to permit ancillary rights to come over other parts of the servient tenement would not be directly inconsistent with any of the express terms. The further question is really whether the parties intended to "cover the field", to set out the whole of the rights of the holder of dominant tenement.

106. In my opinion the parties did intend to set out in full the rights of the holders of the dominant tenement to come on the servient land to carry out routine repairs, alterations and the like. They chose a wide enough strip of land to permit that work to be done comfortably without intruding further onto the servient tenement. They did not assume that the whole ten metres would be used for a water channel: rather they expected a conventional channel to be dug and constructed of three to five or six metres in width. If the holders of the dominant tenement wished to construct a wider channel, then it was for those holders to devise a method of repair and alteration sufficient for their purposes. To grant the general right sought by the appellants, therefore, would not be appropriate.

109. That does not mean, however, that the appellants have no ancillary rights for the purposes of carrying out repairs, alterations and maintenance of the easement channel. The terms of the grant were intended to provide limits only for the primary construction of the channel and for the routine day to day repair and maintenance work within and along the ten metre strip. Ancillary rights, however, have a wider purpose. They are designed to ensure that the holders of a dominant tenement are able to exercise their rights effectively. Ordinary repair and maintenance is one thing: emergency repairs may well be another matter. There is nothing in the grant to prevent the holders coming onto the servient tenement if there has been some emergency or some extraordinary damage to the channel and the required works cannot be dealt with within the ten metre strip. For example, a large tree might fall and block the channel which would, in order to remove it, make it reasonably necessary to go onto the surrounding land to lift up the tree and pull it out of the way. Again, it is conceivable (though how likely I would not know) that there might be severe flooding which would make it impracticable to repair the channel by coming on and "passing" only along the ten metre strip. It is not necessary to devise a series of other examples which might lead to the need to go beyond the ten metre strip in order to carry out appropriate repairs and alterations. Nor is it necessary for the Court in these proceedings and on this appeal to declare precisely in what circumstances that right would arise. What must be understood, however, by the appellants is that for the purpose of routine repairs, maintenance and alterations they have no right to go beyond the ten metre strip and it will only be in a case of true emergency, such that one would hope that even the respondent would not object, that it might be reasonably necessary to go beyond the confines of that strip to restore the water channel to working operation.

112. The consequence is that the appellants must fail on this appeal, for they are not entitled to the declaration of further right which they have sought with respect to their ordinary rights to repair, maintain and alter the water channel. They did not seek, and so it is inappropriate for the Court to declare, any rights which may be seen as reasonably necessary in the emergency situations of which I have given but two possible examples. They are not the circumstances which are presently before the Court, nor were they sought or described by the appellants before or during the litigation. It is thus inappropriate to make any order with respect to them, for they may never arise, either in the sense that the circumstances may never occur or in the sense, one may hope, that the respondent or his successors in title would not seek to deny what then might become reasonably necessary by way of an ancillary right. The appeal must therefore be dismissed.

119. For the reasons given by Ormiston, J.A., I agree that this appeal should be dismissed.

[1] [2002] VSC 501.

[2] It is desirable to publish again the plan which was usefully appended to the judgment of the trial judge, which is available on Austlii on the Internet. The judge's plan showed both the original easement (marked orange and black) and the later easement (marked orange, black and pink). It is similar to but, for obvious reasons, is not the same as the surveyor's plan "A" on the grant.

[3] It was agreed on both sides that the absence of the words "maintain" or "maintenance" was insignificant, repairs and alteration being sufficient for practical purposes.

[4] This was not identical to the plan appended to this judgment (which shows both channels), but the order showed only the new easement as drawn by a surveyor.

[9] [1908] 1 Ch. 630 at 638.

[10] See the quotation set out in para.[[].

11] In relation to the operation of s.109 of the Constitution.

[12] (1935) 35 S.R.(N.S.W.) 469.

[14] [1974] HCA 32; (1974) 132 C.L.R. 1 at 12.

[15] Barwick, C.J., Menzies and Mason, JJ. Jacobs, J. dissented, though not on the existence of some such principle.

[16] 2nd ed. para.6.06, where he says the rule is the modern application of the Latin maxim "expressum facit cessare tacitum".

[17] (2002) loose leaf service 5, paras.11-100 and 11-160.

[21] See e.g. S.S. & M. Ceramics Pty. Ltd. v. Kin [1996] 2 Qd. R. 540 and compare Bulstrode v. Lambert [1953] 1 W.L.R. 1064 at 1070-1071. See generally Bradbrook and Neave on Easements and Restrictive Covenants in Australia (2nd ed. 2000) para.6.39.