Dockray v Chick [2010] TASSC 32

Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528, applied.

Real Property - Torrens title - Easements - Creation - By implication - Doctrine of lost modern grant.

Land Titles Act 1980 (Tas), ss40(3)(e), 138I.

Williams v State Transit Authority of New South Wales [2004] NSWCA 179; (2004) 60 NSWLR 286, applied.

Judgment Number: [2010] TASSC 32

1 These proceedings relate to the entitlement of the plaintiff, Margaret Dockray, to use a roadway in order to access land owned by her, part of which is on land and owned by the defendant, Victor Chick. The plaintiff claims to be entitled to use the roadway pursuant to a registered easement, as well as an easement derived pursuant to the doctrine of lost modern grant. The registered easement in question is recorded on the title of each party. As expressed, the easement benefits only a portion of the land owned by the plaintiff. I will refer to that portion as "the dominant tenement". The right of way, as used since 1948, has not followed the full extent of the easement as recorded on each party's title. It has been truncated by being diverted part way along the easement to a roadway to the dominant tenement which passes over adjoining land owned by the plaintiff and her predecessors in title.

2 In 2007, at about the time that the plaintiff completed her purchase of the land in question, the defendant blocked the right of way, as it was being used, by erecting a fence at the point where it was diverted along the roadway which leads to the dominant tenement. It was this action by the defendant that precipitated this litigation.

3 The defendant, by his defence, denied or did not admit many matters asserted by the plaintiff in her statement of claim. The defendant did not give evidence, although he adduced some evidence. On the evidence before me, there is no real dispute about many of the matters put in issue by the defence.

4 The facts can best be explained by reference to the following plan.

5 The defendant's land, a portion of which is subject to the easement, is the hatched area of land to the north of the plan. By a transfer in 1937, that land was made the subject of an easement for the vendors, William Walker, John Walker, Ernest Walker and Gladys Walker, "the Walkers":

"... and the registered proprietor or proprietors for the time being of [the dominant tenement] or any part thereof for his or their tenants servants agents workmen and visitors full and free right and liberty to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages motor cars motor lorries and other vehicles into and out of and from such [dominant tenement] or any part thereof through over and along the strip of land thirty-eight links wide extending along the Eastern boundary of" the land subject to the easement.

6 Curiously, in 1964 the defendant purchased this land, excluding the portion subject to the easement, but with the benefit of the easement. Prior to 3 August 1970, the defendant purchased the portion subject to the easement and he remains the owner of each of these areas of land. They are together identified in the plan as the "defendant's land". Throughout these transactions the dominant tenement retained an entitlement to the right of way comprised by the easement.

7 The "easement" is marked on the plan as "roadway 7.64 wide". It runs down the full length of the eastern boundary of the defendant's land from point "Y" on Lalla Road to point "X" where it meets the northern boundary of the dominant tenement.

8 The "dominant tenement" is part of an area of land purchased by the plaintiff's immediate predecessors in title, the Walkers, in 1936. The dominant tenement is the land marked "A", "B", "C", "D" "E" and "F" in the centre of the plan.

9 The "reserve - west" is the area of land to the west of the dominant tenement, marked on the plan with perpendicular lines. Its eastern boundary adjoins the western boundary of the dominant tenement at "A" to "F". It was purchased by the Walkers in 1945.

10 The "reserve - east" is the area of land to the east of the dominant tenement, marked on the plan with horizontal lines. Its western boundary adjoins the eastern boundary of the dominant tenement at "H" to "G". It was purchased by the Walkers in 1946.

11 Shortly prior to January 1948 there was a large landslip in a gully at the southern end of the easement, which rendered the roadway along the southern end of the easement impassable from "Z" to "X". Prior to the landslip the Walkers, who were the registered proprietors of the reserve - west, the dominant tenement and the reserve - east, had been operating a nursery on this land and utilised the easement to access all of the land, albeit that only the dominant tenement was expressly entitled to the benefit of the easement. After the landslip the Walkers were advised by an engineer that, due to the instability of the gully, it was undesirable to attempt to rebuild the roadway at the southern end of the easement. In result, the Walkers purchased the triangular shaped piece of land marked "G", "H" and "J", which adjoins the eastern boundary of the easement at its southern end, in order to divert the roadway across it and around the landslip to the dominant tenement. I will refer to this as the "diversion land". The diversion land was transferred to the Walkers on 22 January 1948. A roadway was then constructed around the landslip area from "Z" to "Z1" along the path of the gravel road as it presently exists. I will refer to this portion of the roadway as "the diversion".

12 Since 1948, access between the dominant tenement and Lalla Road has been via the useable portion of the easement from "Y" to "Z", which I will refer to as "the truncated portion of the easement", and then the diversion. A survey plan dated 26 November 2007, which is exhibit P29 in these proceedings, details the path of the diversion.

13 A small triangular shaped piece of land on the south western side of the dominant tenement, marked "N", "E" and "M" on the plan, was transferred to the Walkers on 20 April 1948. It is referred to as the "triangle".

14 Apart from the defendant's land, all of the land referred to, the reserve - west, the dominant tenement, the triangle, the diversion land, and the reserve - east, was owned by the Walkers and their heirs until it was transferred to the plaintiff in 2007. The total area of this land is about 44 hectares. The titles to the various portions of this land were combined into one title in 1954. For many years a rhododendron nursery was operated from the land and then it became a rhododendron reserve. It became known in the district as the rhododendron reserve; I will refer to it as such. From at least 1949 the plaintiff's predecessors in title used the truncated portion of the easement, coupled with the diversion, to access the rhododendron reserve.

15 The most recent title to the rhododendron reserve is Volume 198595 Folio 1. The plan on that title, Plan No 198595, is the basis for the plan in par[4] above. In those instances where letters are used on the title plan, they have been repeated in the par[4] plan.

16 As can be seen from the following, there is no substantive difference between the easement as recorded on the title of each party. The easement recorded on the title transferred to the plaintiff, Volume 198595 Folio 1, is:

"BENEFITING EASEMENT: (appurtenant to the land marked A.B.C.D.E.F. on Plan No 198595) the full and free right and liberty for the Registered Proprietors of the said land within described of their tenants servants agents workmen or visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages, motor cars, motor lorries and other vehicles into and out of and from the land marked A.B.C.D.E.F. on Plan No 198595 through over and along the strip of land thirty-eight links wide marked X.Y. on Plan No 198595."

17 The easement recorded on the defendant's title to the land which is subject to it, Volume 248209 Folio 1 is:

"SUBJECT NEVERTHELESS AND RESERVING for [the Walkers] and the Registered Proprietor or Proprietors for the time being of the other land comprised in Certificate of Title Volume 332 Folio 70 [this is the dominant tenement] or any part thereof his or their tenants servants agents and workmen and visitors full and free right and liberty to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages motor cars-motor lorries and other vehicles into and out of and from such other land comprised in the said Certificate of Title or any part thereof through over and along the said land within described."

18 By her statement of claim the plaintiff claimed that it was "to be presumed that the [rhododendron reserve] has the benefit of a right of a carriageway in the terms defined in Sch8 of the Conveyancing Law of Property Act 1884 along the [truncated portion of the easement] pursuant to a grant made in or about or alternatively prior to 1948 which grant has been lost (the prescriptive easement)"; and she sought a declaration to this effect. In the course of the trial the plaintiff's counsel revised her claim in respect of a prescriptive easement based on the doctrine of lost modern grant, to a claim for a declaration that such an easement had been acquired prior to 12 April 2001. The explanation for this revision is that the Land Titles Act 1980, s138I, provides:

"(1) This Division supersedes the rules of the common law for the acquisition of easements by prescription.

(2) The rule of law known as the doctrine of lost modern grant for the acquisition of easements is abolished."

This section came into force on 12 April 2001. Insofar as subs(2) abolishes the rule of law known as the doctrine of lost modern grant, it defeats the plaintiff's claim to such an easement, as advanced in her statement of claim. In her statement of claim she also made claims to the effect that, consistent with the express terms of the easement:

•

the dominant tenement; and

•

the rhododendron reserve;

are entitled to the benefit of the truncated portion of the easement and sought an order that the defendant, his servants and agents, be restrained from blocking or obstructing the easement. These were the primary contentions pressed on behalf of the plaintiff in the course of submissions. I will address these contentions first.

19 The defendant does not dispute the entitlement of the dominant tenement to the benefit of the easement, and acknowledges that the full length of the easement is impassable due to the landslip. He says, however, that the entitlement that arises from the easement is confined by its terms to a right to access the dominant tenement by means of the full length of the easement from "Y" to "X". He says there is no entitlement to access the dominant tenement via the truncated portion of the easement and the diversion.

Is there an entitlement to use the truncated portion of the easement to access the dominant tenement via the diversion?

20 A finding in favour of the plaintiff on this issue would not involve the creation of or recognition of a new easement that encroaches on more of the defendant's land. In a sense it would have the reverse effect. It would recognise that the dominant tenement could be accessed without using the southern portion of the easement. A finding which recognised that since about 1948 the easement had not been used from "Z" to "X", a distance of some 90 metres, would assist the defendant to have that portion of the easement extinguished pursuant to the Land Titles Act, s108. In that event, the servient tenement would formally regain the unburdened use of approximately 690 square metres of land. The finding would not alter the nature or extent of the entitlement of the dominant tenement in respect of that portion of the easement that has been used to access the dominant tenement since 1948. The only way in which it might be argued that the servient tenement could be disadvantaged by the finding is the possibility that those entitled to use the easement to access the dominant tenement might inappropriately use it to do no more than access to the diversion land.

21 It has long been held that the grantee of a right of way has no right to deviate onto another part of the servient tenement in order to get around an impassable section of the right of way: Bullard v Harrison [1815] EngR 1065; (1815) 4 M & S 387; 105 ER 877 (KB). Lord Ellenborough CJ observed in that case, at 392, that:

"It is a thing founded in grant, and the grantor of a private way does not grant a liberty to break out of it at random over the whole surface of his close."

This observation recognises that the establishment of an entitlement to deviate depends upon the terms in which the easement is granted. In Selby v Nettlefold (1873) LR 9 Ch App 111, it was held that the grantee of a right of way, which had been obstructed by the grantor, had a right to deviate over the grantor's land in order to get around the obstruction. Although the reasons for judgment in that case do not explain the basis for that entitlement, it can be seen from page 113 of the report that it was argued that the entitlement was implicit from the grant of the right of way.

22 In Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343, it was held with respect to a registered easement granting a right of footway, that the owner of the dominant tenement had the right to go onto the servient tenement in order to maintain the trafficability of the right of way where necessity so required. At 356 Priestly JA, agreed with by Handley JA, said:

"... the right of a grantee of a right of way to exceed the defined limits of his grant for purposes necessary for its enjoyment, by going on the land of the grantor, is an implied term of the grant itself ...".

At 350, Kirby P described this right as being "an incident of the easement which was notified".

23 When construing the terms of the easement, it is to be remembered that the rules of evidence that assist the construction of contracts do not apply to the construction of an easement. This is because the establishment of the intention or contemplation of the parties to an instrument registered under the Land Titles Act by reference to material extrinsic to the instrument would be contrary to the principles of the Torrens system of title by registration, see Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 at 538 - 541. As explained in that unanimous decision at 539, the logic that underpins this proposition is:

"The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee."

24 Other matters I have in mind in construing the terms of the easement include the following:

•

It is well recognised that the grant of an easement carries with it those ancillary rights which are necessary for the enjoyment of the rights expressly granted, Westfield (supra) at 535. An early recognition that this is so is the decision in Pomfret v Ricroft 1 Saunders 321[1845] EngR 185; , 85 ER 454 (KB) where it was said, at 323, that when the use of a thing is granted, everything is granted by which the grantee may have and enjoy such use.

•

Cases dealing with the contention that users of a right of way to obtain access to the dominant tenement are at liberty to use it to pass beyond the dominant tenement to other land have consistently rejected that proposition. This is because the use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept, Harris v Flower (1904) 74 LJ Ch 127 at 132 and Westfield (supra) at 536.

•

A construction which would deprive the grant of any effective operation ought to be avoided if possible; Paterson and Barr Ltd v Otago University [1925] NZLR 119 at 120.

•

In the absence of any clear indication of the intention of the parties, a grant must be construed more strongly against the grantor; William v James (1867) LR 2 CP 577 at 581 and Paterson and Barr Ltd v Otago University (supra) at 120.

•

The dominant tenement and the servient tenement need not be contiguous; Todrick v Western National Omnibus Company Ltd [1934] Ch 561.

25 The defendant contends that the only point from which the dominant tenement can be accessed from the easement is at "X" on the plan, the point where the easement and the dominant tenement meet. In cases where the dominant tenement and the right of way share a lengthy common boundary, it has been held that the grant of the right of way does not confer a right of access from any part of the dominant tenement that adjoins the right of way; Pettey v Parsons [1914] 2 Ch 653; Saggers v Brown (1981) 2 BPR 9329, and Lewis v Wakeling (1923) 54 OLR 647. However, as observed by Crawford J in Krolczyk v Raffan A62/1991 at 4, the trend in the authorities is to allow entry and exit to and from the dominant tenement at more than one point along an adjoining right of way. Authorities that manifest this trend are Berryman & Anor v Robert Sommenschein & Anor [2008] NSWSC 213 at par[25], Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 at par[53], Saggers v Brown (supra), Cooke v Ingram (1893) 68 LT 671, South Metropolitan Cemetery Company v Eden [1855] EngR 432; (1855) 16 CB 42 at 57 - 58, and Sketchley v Berger (1893) 69 LT 754. This trend is a reflection of the reality that a factor that informs a court construing a right of way is the reasonableness of the construction under consideration. See Pettey v Parsons (supra), Lord Cozens Hardy MR at 663 - 4, agreed with by Swinfen Eddy LJ at 667. Consistent with this approach, it has been said that what the grant of a right of way involves is such access as shall be reasonable; Saggers v Brown (supra) at 9331 and Krolczyk v Raffan (supra) at 5.

26 The easement under consideration entitles those identified to "full and free right and liberty ... to go pass and repass ... into and out of and from [the dominant tenement] through over and along [the easement]". These words do not specify the point at which either the dominant tenement or the easement may be entered or exited, and do not impose a requirement that there be only one point of exit or entry. I construe the easement as recognising that, in circumstances such as those that in fact eventuated, it would be reasonable and appropriate for the point of entry and exit to be other than at point "X", so long as this does not materially increase the burden of the easement on the servient tenement. In this case, as already explained, for the easement to be exited or entered at point "Z" does not increase the burden of the easement on the servient tenement, and in fact advantages the subservient tenement.

27 For these reasons, I find that the use of the truncated portion of the easement to access the dominant tenement via the diversion is a use consistent with the terms of the easement. Accordingly, I find that the plaintiff is entitled to an order restraining the defendant from blocking or obstructing this use of the easement.

Does the registered easement authorise the use of the truncated portion of the easement to access the whole of the rhododendron reserve?

28 There is a wealth of authority to the effect that the use of an easement cannot be extended beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept. Accordingly, where the terms of the right of way do not provide for travel across the dominant tenement to other land, the terms of an easement would not ordinarily be construed as extending to providing access to that other land by means of the dominant tenement. Westfield (supra) is a recent authoritative statement of the law to this effect.

29 Whilst, not surprisingly, counsel for the plaintiff did not challenge the authority of Westfield, he contended that the terms of the easement in this case expressly authorised its use to travel across the dominant tenement and provide access to the balance of the rhododendron reserve, insofar as it provides those entitled to its benefit with "full and free right and liberty to go pass and repass ... into and out of and from [the dominant tenement] ... or any part thereof". Counsel submits that the proper interpretation of the entitlement to pass and repass "from any part" of the dominant tenement, is an entitlement to access land other than the dominant tenement that can be reached via the dominant tenement, that is the balance of the rhododendron reserve. I am unable to construe the easement in this way and note that in Westfield, the High Court reached a similar view about the construction of an easement that, for relevant purposes, was almost identical to the subject easement. The easement under consideration in that case gave those entitled to its benefit "full and free right ... to go pass and repass ... to and from [the dominant tenement] or any such part thereof". Save insofar as it is necessary to use the diversion to access the dominant tenement, I reject the contention that it is consistent with the terms of the easement that it be utilised to access portions of the rhododendron reserve other than the dominant tenement.

An easement based on the doctrine of lost modern grant

30 I turn to the question of a declaration that immediately prior to 12 April 2001, the owners of the rhododendron reserve were entitled to an easement pursuant to the doctrine of lost modern grant which authorised access to those portions of the rhododendron reserve that are not within the dominant tenement.

31 In Delohery v Permanent Trustee Company of New South Wales [1904] HCA 10; (1904) 1 CLR 283, the High Court held that the "legal doctrine or fiction of lost grant" was part of the law of England that was introduced into New South Wales. Consistent with that decision, the doctrine was also introduced into Tasmania. Whilst the doctrine does not appear to have been the foundation for many, if any, claims that have been finally litigated in this jurisdiction, there is no question that it was part of the law of Tasmania prior to its abolition on 12 April 2001 by the Land Titles Act, s138I(2). See Richardson v Browning (1936) 31 Tas LR 78 at 138 and Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633 at 639.

32 With regard to the jurisdiction of the Court to consider a claim for the declaration in question, the plaintiff relies on Cook v Collection Corporation of Australia Pty Ltd [2007] TASSC 93; [2007] 17 Tas R 67. In that case, now Associate Justice Holt, held that a claim for declaration that an easement had been acquired pursuant to the doctrine of lost modern grant was maintainable. I will follow that decision.

33 For a claim to an easement based on the doctrine to have been sustainable against a title derived from registration under the Land Titles Act prior to 12 April 2001, such an easement had to be exempt from indefeasibility. That Act, s40(3)(e), then and now provides that:

"(3) The title of a registered proprietor of land is not indefeasible -

(i) an easement arising by implication or under a statute which would have given rise to a legal interest if the servient land had not been registered land; and

(ia) an easement created by deed before the servient tenement became subject to this Act or the repealed Act; and

(ii) an equitable easement, except as against a bona fide purchaser for value without notice of the easement who has lodged a transfer for registration."

34 In order to address whether an easement acquired pursuant to the doctrine of lost modern grant comes within any of the above exceptions, it is necessary to detail what the doctrine involves. In this regard I adopt the following passage from Williams v State Transit Authority of New South Wales [2004] NSWCA 179; (2004) 60 NSWLR 286, Mason P, agreed with by Sheller and Tobias AJJ, at 292 - 293 pars[79] - [85]:

79 At common law an easement may be created by twenty years uninterrupted enjoyment of the right claimed. This doctrine of 'lost modern grant' requires the court to presume, even if contrary to the truth, the existence of an express grant which has been lost. The presumed grantor must have the legal capacity to have executed the grant.

80 The acts necessary to engage the doctrine must be of such a nature as to indicate to the mind of a reasonable person in possession of the servient tenement the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended (Hollins v Verney (1884) 13 QBD 304 at 315; Hamilton v Joyce [1984] 3 NSWLR 279 at 289-290). The requirement of user with every appearance of exercise by right is encapsulated in the traditional phrase 'nec vi, nec clam, nec precario'.

81 The notion that user must have been 'as of right' means that it is not enough to show that the servient owner failed to prevent the use said to have generated the prescriptive easement. Rather, it must be demonstrated that there was submission to the use in the knowledge that it was being exercised as of right (Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229 at 239; Mills v Silver [1991] Ch 271).

82 Mills v Silver demonstrates that the claimant must show: (1) acts of user of the requisite character, that is, indicative that the claimant is asserting a continuous right of enjoyment; and (2) consent, acquiescence or toleration by the servient owner. In Parker LJ's words (at 290):

'... The true approach is to determine the character of the acts of user or enjoyment relied on. If they are sufficient to amount to an assertion of a continuous right, continue for the requisite period, are actually or presumptively known to the owner of the servient tenement and such owner does nothing that is sufficient ... .'

See also R v Oxfordshire County Council; Ex parte Sunningwell Parish Council [1999] UKHL 28; [2000] 1 AC 335 at 350-351, 358.

83 Reference should also be made to the recent decision of the House of Lords in R (Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889. In the course of what Professor Butt has described as a masterly exposition of this area of the law (P Butt, 'Use "as of right"' (2004) 78 Australian Law Journal 164), Lord Walker of Gestingthorpe, after observing (at 913 [77]) that '[a] landowner who wishes to stop the acquisition of prescriptive rights over his land must not acquiesce and suffer in silence', emphasised that 'permission' that precludes the creation of prescriptive right (nec precario) requires the owner of the servient tenement to do something: it requires some overt act. On the other hand acquiescence, his Lordship said (at 913 [79]), 'denotes passive inactivity'. He continued in these terms (at 913 [79]):

'... The law sometimes treats acquiescence as equivalent in its effect to actual consent. In particular, acquiescence may lead to a person losing his right to complain of something just as if he had agreed to it beforehand. In this area of the law it would be quite wrong, in my opinion, to treat a landowner's silent passive acquiescence in persons using his land as having the same effect as permission communicated (whether in writing, by spoken words, or by overt and unequivocal conduct) to those persons. To do so would be to reward inactivity; despite his failing to act, and indeed simply by his failure to act, the landowner would change the quality of the use being made of his land from use as of right to use which is (in the sense of the Latin maxim) precarious.'

Lord Walker (at 914) approved the reasoning in Mills. See also Lord Bingham (at 894).

84 The onus lies upon the person claiming the prescriptive right to show enjoyment as of right (Gardner (at 239); Thomas W Ward Ltd v Alexander Bruce (Grays) Ltd [1959] 2 Lloyd's Rep 472 (Eng CA); Jones v Price and Morgan (1992) 64 P & CR 404 (Eng CA). Cf Nelson v Hughes [1947] VicLawRp 30; [1947] VLR 227 at 228).

85 If the servient owner has no knowledge of the user, a prescriptive right will not arise (cf 'nec clam'). Knowledge may be actual or constructive. The test is objective: was the use of a kind that an owner, reasonably diligent in the protection of his or her interests, would or should have discovered? (Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 at 571; Milne v James [No 2] [1910] HCA 55; (1910) 13 CLR 168 at 178; Gangemi v Watson (1994) 11 WAR 505.)"

35 In Williams (supra) Mason P held that an easement could not be acquired pursuant to the doctrine of lost modern grant in respect of land subject to the Real Property Act 1900 (NSW). In so concluding his Honour said at par[129]:

"In my opinion, it is to pile fiction upon fiction to extend the doctrine of lost modern grant into the Torrens system, because (assuming no relevant exception to s42 or its equivalents) that system contemplates title at law as arising only upon registration."

36 His Honour's conclusion on this aspect of the matter does not assist me. The issue for my determination is whether an easement acquired pursuant to the doctrine comes within any of the exceptions to indefeasibility provided for in s40(3)(e) of the applicable Tasmanian legislation.

37 In Williams (supra) at par[127] Mason P said:

"The doctrine of lost modern grant is a common law doctrine whereby a legal title to an interest in land is acquired. It did not arise in any context involving rights enforceable in personam backed up by equitable remedies."

Consistent with this view, I conclude that an easement acquired pursuant to the doctrine is not an equitable easement for the purposes of s40(3)(e)(ii).

1">38 An easement acquired pursuant to the doctrine could not claim the benefit of the exception provided by s40(3)(e)(ia), even if the fiction that underpins the doctrine was accorded factual status. There is no suggestion that the presumed lost grant upon which the plaintiff relies was made prior to the time the servient tenement became subject to the Real Property Act 1862.

39 An easement acquired pursuant to the doctrine is not an easement arising under a statute for the purposes of the second limb of s40(3)(e)(i).

40 Can an easement acquired pursuant to the doctrine obtain the benefit of the exception provided for "an easement arising by implication" in the first limb of s40(3)(e)(i)? The fiction of a lost grant cannot be rebutted by establishing that the grant was not in fact made; Auckran v Pakuranga Hunt Club (1905) 24 NZLR 235; Tehidy Minerals Ltd v Norman [1971] 2 QB 528 (CA), at 547 - 552, and Williams (supra) par[79].

41 I was initially uncertain whether it could be said that an easement acquired pursuant to the doctrine was implied, as I was dubious that it was appropriate to describe an easement imposed by a fiction that cannot be rebutted as being implied. I note, however, that in Easements and Restrictive Covenants in Australia, 2nd ed, A Bradbrook and M Neave, par[11.43], it is submitted that the wording "an easement arising by implication" is sufficiently broad to include easements arising under the doctrine of lost modern grant. I also note that that some authorities dealing with the doctrine describe an easement acquired pursuant to it in terms that suggest that it is implied. In Delohery v Permanent Trustee Co of New South Wales (supra) at 313, the easement is described as an "obligation which is implied by law". In Parramore v Duggan (supra) at 649, Toohey J said when dealing with the construction of s40(3)(e)(i):

"The person who claims the protection of sub-par(i) does not need to lodge a caveat. That person's protection comes from the sub-paragraph itself. It is understandable that easements arising by implication are given express statutory protection for there is nothing capable of being registered under the Registration of Deeds Act or under the Act".

On one view this suggests that where there is an easement based on a lost grant, in which case there is no grant capable of registration, it is an easement arising by implication. Some of the difficulties of categorising easements are highlighted in the following paper:

"B Edgeworth, 'Easements, the Doctrine of the Lost Modern Grant and the NSW Torrens System: Recent Developments' (Paper presented at Hotspots and Pitfalls in Property Law, University of New South Wales Faculty of Law, Centre for Continuing Legal Education, Sydney, 17 February 2005) 3-5."

42 More significantly, in the context of the construction of a statutory provision, the clause notes to the Land Titles Bill 1980 which explain what is now s40(3)(e)(i) and (ii) in the Act, include the following:

"At the common law an easement can only operate at law if it is created by a grant under seal, or where the existence of a grant is implied, eg, by prescription under the Prescription Act 1934, or under the doctrine of lost modern grant. However there are many other kinds of implied easements arising by estoppel, acquiescence or agreement which operate in equity only."

43 Consistent with this statement that the existence of a grant is implied under the doctrine of lost modern grant, I conclude that such an easement is an easement arising by implication within the meaning of those words in s40(3)(e)(i).

44 Turning to the means by which an easement is created pursuant to the doctrine of lost modern grant, the first issue for my determination is whether, immediately prior to 12 April 2001, the Walkers and their heirs, had, for in excess of 20 years, enjoyed the right claimed, that is, utilised the truncated portion of the easement to access not only the dominant tenement, but also the balance of the rhododendron reserve.

45 Harold Douglas Walker gave evidence. He is the son of William Alexander George Walker who was one of the owners of the land at the time of the construction of the diversion. Harold Walker became an owner of the land following the death of his father in 1969, and he remained an owner until the transfer to the plaintiff. Primarily on the basis of his uncontested evidence I make the following findings in relation to access to the rhododendron reserve and the use of that access since 1948. By at least that year the access was a formed broken metal roadway. The Walker family was conducting a commercial nursery on their land. The roadway had been used to access the nursery since tractors replaced the horses that had worked at the nursery. The roadway was used by the Walker family, nursery workers, and customers of the nursery. Vehicles utilised the roadway on a daily basis. This level of use continued until about 1965 when planting at the nursery ceased. Thereafter the nursery was still used to provide flowers, cuttings and different greenery for the Walkers' florist shop. A man lived on the property and he attended to these matters. The use of the roadway during this period was occasional and primarily during the cutting season which is in late January. Whilst this use was not frequent, I conclude that it was sufficient to sustain a finding that during this period the Walkers and their heirs asserted a continuous entitlement to use the roadway. In this regard see White v Taylor (No 2) [1969] 1 Ch 160, at 192.

46 In 1982, the Walkers leased the rhododendron reserve to the Department of Lands. In December of that year the property was opened for use as a public reserve, and it was so used until late 2006. An affidavit sworn by Andrew Napier, who had been a senior ranger for the Parks and Wildlife Service, was put into evidence. He says that during the period of the operation of the reserve, the roadway was used by the public as the sole means of access. He estimates that during this period the number of vehicles, including large tour busses, that entered the reserve via the roadway, ranged between 3,000 and 7,000 per annum.

47 I am in no doubt that use of the nature required, has been established for a period of in excess of 20 years immediately prior to 12th of April 2001.

48 The defendant lived in the vicinity of the roadway as a child. He purchased the land that adjoins the roadway in 1964, and he purchased the land over which the roadway runs, prior to 3 August 1970.

49 I have no hesitation in finding that, at the very least from 1964, the defendant was well aware that the Walkers, and those who claimed under them, used the roadway to access the whole of the rhododendron reserve, and that in doing so they were asserting an entitlement to do so as of right. A stark illustration of the assertion of that entitlement is contained in the following letter (formal parts omitted) from the Director General of Lands to the defendant, dated 18 March 1982:

"Dear Sir,

Access to W.A.G. Walker Rhododendron Reserve

As you may realize, this Department has entered into a Lease Agreement with the Walker family over its Lalla Nursery property.

Legal access to the land is provided by a roadway 7.6 metres wide comprised in Certificate of Title Volume 2746/78, registered in your name.

The land concerned adjoins the balance of your property and the purpose of this letter is to inform you that the Crown intends to construct the access road to allow the public to gain access to the reserve.

I appreciate that there may be some inconvenience to you as owner of adjoining land during construction, as a result of water run-off and damage to fences. However, I would assure you that every effort will be made to minimize the inconvenience, and assistance will be provided with fencing or other minor works which may be required.

It is intended that work will commence during April or May of this year and will be co-ordinated by Mr A Napier of this Department who is based in Launceston."

50 The Walkers, and those under them, who used the roadway to access portions of the rhododendron reserve that are not within the dominant tenement (the balance land), at no time sought or obtained the permission of the defendant to do so. The defendant at no time took any overt action that could be said to constitute a grant of permission to so use the roadway to that end.

51 The evidence establishes that between 1984 and 1995, the defendant was concerned about the use of the roadway, that he made approaches to the Department of Lands in relation to its use, and that he on occasions obstructed members of the public from accessing the reserve. All of his approaches in relation to the use of the roadway were rebuffed and the Department maintained its entitlement to use the roadway as of right. Insofar as the defendant on occasions obstructed visitors to the reserve, this usually occurred when they arrived outside the reserve's regular opening hours. The Department reported this interference by the defendant to the police in December 1995. Notwithstanding that it is evident that the defendant was displeased about the use of the roadway, he at no time prior to blocking the roadway in 2007 took any positive step which challenged the asserted right of the Walkers and those under them to use the roadway to access the balance land. What emerges from the evidence is that the defendant reluctantly submitted to the use in the knowledge that the users asserted a right to do so. The first step he took that in any way challenged their entitlement to use the roadway was a letter his solicitors sent to Mr H D Walker, Mr J R Walker and Mrs D J Walker, dated 7 November 2006. That letter relevantly included the following:

"As you are probably aware our client's property adjoins your Lalla property which has a right of carriage way over an access road which runs down the eastern side of our client's boundary.

You are also probably aware our client has had problems over the years with trespassers in general.

We are instructed that the right of way to your property on the ground does not continue on the line which is shown on the title. Our client's preference is for the right of way to mirror what is shown on the title with you erecting a gate at the end thereof.

Notwithstanding that, our client is content for the right of way to remain where it is providing it is made narrower. Our client is happy to undertake the work relating to that if you are prepared to pay him to do so. He is also happy for a gate to form part of the boundary fence."

52 This letter demonstrates that at that time the defendant was still not disputing the entitlement of the Walkers and those who claimed under them to use the roadway to access the whole of the rhododendron reserve. His preference however was that the roadway mirror the right of way on his title, although he was content that it should remain where it was if it was made narrower.

53 The traditional requirement for the creation of an easement in the circumstances under consideration is that the use must be "nec vi, nec clam, nec precairo", which, loosely translated, requires that the exercise of the use must not be by violence or in secret, and must not be permissive. Relating my findings to these requirements, there is no suggestion that the use in question was by violence or in secret, and there is no suggestion that it was permissive in the requisite sense, that is, the result of a grant of permission from the defendant. I am accordingly satisfied that the plaintiff is entitled to the declaration sought.