Dabbs v Seaman [1925] HCA 26

Dabbs v Seaman [1925] HCA 26 - HCA 1925 case summary — Zoe

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The Pleadings. - It is all-important to extract the issues. respondent, Robert Thomas Seaman, is the registered proprie under the Real Property Act of a piece of land comprising abo 2 acres at Roseville in the Kuringai Shire. His certificate sho that part of the land consists of a strip 518 ft. long by 20 ft. b and marked "twenty feet lane." The appellant, Emily Dabb is the registered proprietor under the Act of a piece of land 518 ft. long and 67 ft. broad to the west of and immediately adjoining the respondent's strip marked "twenty feet lane." On the appellant's certificate the respondent's strip is shown as abutting on the eastern boundary and is there also described as "twenty fee' lane."' The respondent instituted a suit in equity in the Supreme Court of New South Wales against the appellant, claiming (1) a declaration that the appellant is not entitled to any right of way over the strip marked " lane," with consequential injunction ; (2 injunction restraining her from opposing the respondent's application to the Registrar-General to consolidate in one certificate his said land with other land he has acquired and to delete the words " twenty feet lane" from his certificate ; (3) general relief. The ground of the claim is stated in the statement of claim to be that, when in 1913 the land of which the respondent's land and the appellant's land then formed part was subdivided, the strip marked " twenty feet lane" was set aside as a private lane solely for the purpose of providing access to the rest of the land now included in the respondent's certificate and was for that purpose only so marke on that certificate. That is the sole ground alleged for the cla made, no other allegation affecting the mutual rights proprietary personal being made. I may mention at once that the statement claim is utterly silent on the two essential points of this case, nai (1) that the appellant's certificate, which is the earlier in point date, shows her land as bounded on the east by the 20 ft.

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of an estate in fee simple, subject nevertheless to the reservations and conditions, if any, of the Crown grant and subject also to such encumbrances, &c., as are notified on the certificate, in " that piece of land . . . as shown on the plan hereon and therein edged red being part of lot 1 on a plan deposited in the Land Titles Office Sydney No. 7134 and also shown on plan annexed to the said instrument 4 of transfer No. A50143" &c. The description of the land, therefore, depends entirely on the plan upon the certificate, confirmed, if - necessary, by the plan referred to as annexed to the transfer and incorporated by reference in the certificate. Now, the plan upon the certificate shows the land comprised therein to be a parcel having a southern frontage of 66 ft. 10} in. to Shirley Road (which is admittedly a public road), having a depth to the north of (say) - 518 ft., the width along the northern boundary being 101 ft. 5} in. But immediately contiguous to the eastern boundary of the land is the contested strip shown by two parallel lines the space between being marked " twenty feet lane." The lane is shown closed on the north and open on the south where it meets Shirley Road. It is common ground, and it appears from the documents referred to, that at the date of the transfer to Smith the strip of 20 ft. belonged in law to Jenkins, who transferred to Smith, and in equity to Seaman, by whose direction the transfer was made. At the foot of the certificate there is a notification of the encumbrance of a building covenant contained in the transfer. The transfer accords with the certificate except that the lane is shown to be 20 ft. 0} in. and it is not shown open on the south. The lines upon the plan in the transfer are apparently neutral as to whether the lane is open or closed; the lines being, as I think, merely boundary lines extended to indicate direction and the southern line extended to lead to a corner post on the east and a rock mark on the west. It is established in evidence that in 1913 the land was virgin soil covered with shrub and rock. There was no lane in fact existing except so far as its site was indicated by corner pegs. The building covenant by the " purchaser" - for himself, his heirs, executors, administrators and assigns, is _ with the "vendor," her heirs, executors and administrators, that ' the purchaser, &c., shall not erect or permit "to be erected upon -

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effect to under Canadian law (see Creelman v. Hudson Bay Insurance Co. (1) ). The Act itself says (sec. 40 (1)): " Every certificate of title . . . shall be conelusive evidence that the person named in such certificate of title, or in any entry thereon, as seised of or as taking estate or interest in the land therein described, is seised or possessed of or entitled to such land for the estate or interest therein specified." The appellant being named in the relevant " entry " on the certificate entered 16th May 1922 as the transferee of Smith's estate, the certificate is " conclusive evidence" that she is seised or possessed of an estate in fee simple in the "land therein described." 4. Construction. - What, then, is the "land therein described " ? It was argued that that could only mean the physical substance contained within the metes and bounds marked red without reference to anything beyond those limits. I do not agree with that argument. The "land therein described " means the parcel delimited with all the inherent characteristics with which the terms of delimitation invest it. I say "inherent" in order to distinguish them from characteristics that are mere additions distinct in themselves but attached by some act quite independent of the original quality of the subject land. For instance, an easement to pass through a neighbour's garden is a superadded right of way and not an inherent characteristic of the subject land. Such an easement would properly fall within the terms of sec. 47 of the Real Property Act. But a right of access to the sea or a navigable river is an - inherent quality of a riparian tenement. In the present case the : "land therein described" is the parcel edged red bounded on the south by Shirley Road - a public road - and bounded on the east by a "twenty feet lane." Its contiguity to a lane 20 ft. wide is an inherent characteristic of the land described. The parcel, if Shirley Road or the lane were eliminated, would possess a quite different character. It would cease to be a parcel of which the owner is a frontager to a public road or a private lane (see Stirling L..J. in Mellor v. Walmesley (2) ). The accessorial right is included in the grant itself, and is evidenced by the certificate without a special memorial or specifica- tion (James v. Stevenson (3) ). The principle recognizing the right

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the state of facts without disrupting the transaction itself. If he succeeded, he would be leaving something other than was original done. In the process of construction a Court may be required to examine the document to determine whether that state of facts is clearly enough adopted. Onward Building Society v. Smithson (1) shows that it must be definitely stated. But that must not be : misunderstood. Bowen L.J. in Low v. Bowverie (2) said: - "An estoppel, that is to say, the language wpon which the estoppel - is founded, must be precise and unambiguous. That does not necessarily mean that the language must be such that it cannot - possibly be open to different constructions, but that it must be such as will be reasonably understood in a particular sense by the person to whom it is addressed." A recital may satisfy the claim to an estoppel (Bowman v. Taylor (3) ), or it may not (South-Eastern Railway Co. v. Warton (4) ). I apprehend it is to the former class of cases that Lord Phillimore (then Phillimore L.J.) adverted in Poulton v. Moore (5). The Lord Justice said (6): " With regard to the question of estoppel by recital in a deed, it is truly said that the law of estoppel in the case of real property is different from the law of estoppel as between persons." The expression "as between persons" I understand to mean "in pais." The doctrine of Roberts v. Karr (7) and the line of cases supporting it, does not refer to recitals: it refers to the very essence of the transaction, the description of the thing granted. That must, ew vi termini, be the basis - perhaps a true basis, perhaps a conventional basis - but at all events the indisputable basis, of the transaction. It cannot be disputed. No inquiry is permissible once that stage is reached. To permit such an inquiry would be to permit a man to derogate from his grant (per Vaughan Williams L.J. in Mellor v. Walmesley (8) ). The rule that a man may not derogate from his grant is a rule of law and not a rule of equity. It is quite different from the obligation of grantor arising from his covenant which might give

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a grantor not to derogate from his grant, as explained by Lord ker (when Parker J.) in Browne v. Flower (2), is altogether independent of those obligations which arise from the express or mplied creation of easements. Lord Loreburn for the Privy Council Lyttleton Times Co. v. Warners Ltd. (3) said: "The maxim that a grantor cannot derogate from his grant expresses the duty 'ily laid on a man who sells or leases land." That duty here 'ises upon the terms of the grant operated upon by the statute. The result, so far, is that the estoppel relevant to this case is the oppel which 'as a rule of law arises, not, it is true, upon the yperative words of the transfer or certificate, but upon the true construction as to the land transferred of the appellant's certificate ounded on the transfer by Jenkins by direction of the respondent. 'The construction being established that, as an essential part of the transaction and the certificate, the land is described as fronting a 20 ft. lane on land belonging then to Jenkins or Seaman and now to Seaman, it is not permissible to Seaman to contradict or ipugn that conventional state of facts. In order to test the position of the present appellant, suppose immediately after Smith me the registered proprietor Seaman had set up his present basing it as here on the alleged fact that the lane had been ntended solely for the residual part of lot 1, is it not: plain he ld have failed? Even if he had proved Smith's knowledge of that fact, he would have failed. The answer would have been that he had nevertheless accepted for the purpose of that transaction the conventional fact that the land transferred was to have the ft. lane abutting upon it. The words of Mansfield C.J. in Roberts Karr (4) would have applied, namely: '" But supposing that att, which I do not believe, had in his mind the intent to reserve land, he could not consistently with what appears upon the face of these deeds, prevent the defendant from opening his door into the ; because he has described the defendant's land in his lease s thirty-six feet nine inches in breadth, and abutting on the street." 'Unless by reason of some recognized head of equity jurisprudence,

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The remaining question is whether Smith's rights over the lane question were transferred to the appellant Emily Dabbs. i died, and the Public Trustee became his legal personal representat By transfer in the month of April 1922 the Public Trustee transfi all his estate and interest in all the land mentioned in Smith's certificate of title to Emily Dabbs, and she was, by endorsement on that certificate, registered as proprietor of the land. But the lane was not expressly mentioned in the transfer, nor was any right of way over it expressly given. What is the effect of that transfer? It purports to transfer a parcel of land described in a certificate of title, which discloses, upon examination, that the land abuts on one of its sides on the lane. Under the general law a grant of land passed all that was "legally appendant or appurtenant thereto' without the words " with the appurtenances" (see Norton on Deeds, p- 249). In practice " general words "' were usually added so as to pass all appurtenances enjoyed with the land. But in New Sout Wales, as in England, legislation has rendered this additi unnecessary (Conveyancing Act 1919, sec. 67). It may be that same result has been achieved under the Real Property Act by definition of land in sec. 3: '" In the construction and for the purp of this Act," the section provides " and in all instruments purporti to be made or executed thereunder (if not inconsistent with context and subject matter) . . . the following terms shall the respective meanings set against them: - . . . 'Land' - Land, messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interes therein, together with all paths, passages, ways, watercourses, libe ties privileges, easements, plantations, gardens, mines, minerals, quarri and all trees and timber thereon or thereunder lying or being unl any such are specially excepted" (cf. Hx parte Cuningham ; In M Carthy (2)). And the title of the servient tenement is subject to any easement existing over the land although the same has not

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Judgment (196 paragraphs)