Delohery v Permanent Trustee Co of New South Wales [1904] HCA 10

Delohery v Permanent Trustee Co of New South Wales [1904] HCA 10 - HCA 1904 case summary — Zoe

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seription Act, said that the presumption arose at the end of 20 years, independently altogether of the question whether there ould have been a grant in fact, and that the effect of the Pre- 'iption Act was to base the rule upon a definite user for 20 ears, instead of upon the fiction which presumed a grant from the 1 of such user, otherwise the doctrine stood exactly as before. Consequently the argument that it cannot apply here because there can be no time immemorial or period of legal memory, and 0 consequent presumption of lost grant, fails. At the date of e settlement of this colony, and therefore at the time when 9 IV. c. 83 was passed, the fiction as to time immemorial had unk into insignificance in England, and uninterrupted enjoyment of lights for twenty years was sufficient to raise the presumption a lost grant, even though such a supposition was manifestly ui variance with the facts. The rule, therefore, as part of the English law, must be applied in New South Wales. In Robinson y. Hoskins, reported in "S.M. Herald" of 21st March, 1883, nes, J., at Nisi Prius, directed the jury in accordance with English rule. In Real Estate Bank v. Union Bank (October, 8), Owen, J., expressed the opinion that the rule was not in e, and in Sheehy v. Edwards, Dunlop & Co., 13 (N.S.W.) W.N., C.J. Manning, J.,expressed the same opinion, that it was not onably applicable to the conditions of a new country, but either case was the point decided, and the Victorian cases ich adopted the rule were not cited. In Victoria the rule as 0 presumption of a lost grant was assumed to be in force n Johns v. Delaney, (1890) 16 V.L.RB., 729, as to the easement of upport, and in Drew v. Moubray, ibid., 484; Thwaites v. Brahe, ) 21 V.L.R., 192; and Green v. Walkley, (1901) 27 V.L.R., 503, oancient lights. In South Australia it was expressly decided it the rule was in force, per Boucaut, J.,in White v. McLean, 90) 24S.A.R.,97. In Acraman v. King, reported in "S.A. ister" of 17th June, 1880, Way, 0.J., at Nisi Prius, directed the y that the law as to presumption of lost grant in the case of wt to land applied in that colony. South Australia was lly part of New South Wales, and was constituted a separate lony by an Act of 4&5 Wm. IV. Consequently the same parts the common law would be in force there as in New South

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on the rights of others, and therefore requires no fiction to exeuse | it. | In the United States the law as to presumption of lost grant has been generally held inapplicable. Heats v. Hugo, 15 Am. Rep. 80 (Massachusetts) ; Gale on Easements, in his statement that - the rule had been adopted in Illin In 1854 it was thought to - be in force there, but later on it was decided that it was not. It is only in foree in Delaware and Louisiana; American Encyclo- - pedia, p. 19. Other cases in which the rule was rejected are - ' Guest y. Reynolds, 18 Amer. Rep., 570 (Illinois); Turner v. Thompson, 24 Amer. Rep., 497 (Georgia); Stein v. Hauck, 26 Amer. Rep., 10 (Indiana) ; for rison v. Marquardt, 92 Amer. Dec., 444; Ray v. Sweeney, 29 Amer. Rep., 388 (Kentucky). In Pash v. Foot (supra) it was stated as the opinion of the Court that the 20 years' rule was not established in the English Courts at the date at which the existing body of English law was introduced to the American colonies. They considered the doctrine on its merits, in the light of natural justice and general applicability. In A.G. v. Stewart, 2 Mer., 143, the Mortmain Act was held inapplicable to the Isle of Granada, a conquered colony in the West Indies, It was laid down by the Master of the Rolls that the question was whether the law was one of local policy adapted to the cireum- stances of the country where it was made, or a general regulatior 1 of property equally applicable to all countries where English lw was in force. (O'Connor, J. - If how can it be severed from the rest 7] I contend that, as was put by Bowen, LJ., in Angus y. Dalton (supra), this rule is not incident to the law of property in # same sense as for instance the rules concerning the alienation property. It is merely a canon of evidence. The only ways o} granting an easement are by written agreement, covenant, or dee of grant. The judges laid down the rule that, when user fi 20 years had been proved, it would be presumed that whatever was necessary to grant the easement had been executed and los That is to say, that proof of 20 years user was sufficient eviden

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H.C. or A. to light and air. The latter is acquired by mere occupancy ; the pia former can only be acquired by user, accompanied with the Denouery Consent of the owner of the land; for a way over the lands of another can only be lawfully used, in the first instance, with the

consent, express or implied, of the owner. A party using the way without such consent would be a wrong-doer; but when such a user, without interruption, has continued for twenty years, the consent of the owner is not only implied during that period, but - a grant of the easement is presumed to have taken place before the user commenced. The consent of the owner of the land w: necessary, however, to make the user of the way (from which the presumption of the grant is to arise) lawful in the first instance, But it is otherwise as to light and air. Every man on his own land has a right t6 all the light and air which will come to him, and he may erect, even on the extremity of his own land, build- ings with as many windows as he pleases. . . . After he has. erected his building the owner of the adjoining land may afte wards, within twenty years, build upon his own land, and obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without inter ruption during that period to the building so erected, the law implies, from the non-obstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy the light without obstruction, so Jong as h shall continue the specitic mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant, for although a right of common (except as a common appendant) or a right-of-way, being a privilege of something positive to be done or used in the soil of another man's land, may be subject of legal grant, yet light and air, not being to be used in the soil of the land of another, a not the subject of actual grant; but the right to insist upon th non-obstruction and non-interruption of them more propert,

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to introduce that fiction." The fiction referred to is that of a lost grant, which, however, as already shown, was not regarded by Littledale, J., as the substantial basis of the adopted rule. | No doubt, in some cases, where the matter came before a jury, | the jury were directed to presume that a grant of the right had - once existed and had been Jost. But, if the distinction between - the substance of the law and its temporary formal expression is borne in mind, the difficulty was never very formidable. The law of prescription says that a right of property in certain things may be acquired by long, continual, and peaceable possession. The reason of the law is given in the passage above quoted from the Digest. It was adopted on grounds of public policy, in order that the right of property in these things might not be for ever uncertain. But it was assumed that the origin of the title thus recognized by the law was itself Jawful and not unlawful. And, since an easement over the land of another could only be lawfully created by his consent, the law, as pointed out by - Littledale, J., implied that that consent had been given, This was the substance of the law. The mode of giving the consent was an accident. But, as the usual mode of creating an ease- ment was by grant, it was not a great step to take to say, when - the conditions which conferred the right were proved to exist, "Here is an incorporeal hereditament in lawful existence and of. lawful origin. There must therefore at one time have been a grant." In the case of Bedle vy Beard, the assumption, after a lapse of 303 years, of the existence of a grant which had been lost was not in itself absurd. But in the later cases no one pretended to believe in the actual existence of such a grant. appears, however (see per Lord Blackburn in Dallon vy. Angus, 4 at p. 515), that as a matter of pleading it was the practice, if it was not absolutely necessary, to allege a lost grant (as was done in the present case). The issue of the existence of such a grant having been formally raised, it was necessary to leave it to the jury, but with a direction to the effect that if the facts prove showed 20 years' continuous possession, unexplained, the la inferred a lawful origin for the possession, and that, as formal way of alleging that origin was by alleging a grant, t should accept the allegation in that sense, and, having regard t

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Judgment (151 paragraphs)