Supreme Court of SA|1991-09-18|Before: King CJ

GOLDING v. TANNER No. 1894 of 1990 Judgment No. 3013 Number of pages - 15 Real property (1991) 56 SASR 482 [1991] SASC 3013 (18 September 1991)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), COX(2) AND DEBELLE(3) JJ

CWDS Real property - easements - Torrens System - Whether easement by prescription can arise in case of land under Real Property Act, 1886

Prescriptive right claimed to have arisen while one person has been registered proprietor of servient land - Applicability of doctrine of lost modern grant - Applicability of Prescription Act, 1832 - Applicability of doctrine of prescription at common law - Common law doctrine of presumption not applicable

HRNG ADELAIDE, 10 July 1991 #DATE 18:9:1991 Counsel for Appellant:
Mr. R.A. Cameron with Mr. I.C. Phillips Solicitors for Appellant: Morcombe Townsend Counsel for Respondent: Mr. B.R.M. Hayes QC with Mr. T.R. Bryant Solicitors for Appellant: Hume Taylor and Co.

JUDGE1 KING CJ I have read the reasons for judgment of Justice Debelle and I agree in general with his reasoning. I wish to indicate briefly my attitude to certain of the issues which have arisen. 2. Since the decision of Boucaut J in White and Ors. v. McLean [1890] SALawRp 27; (1890-1891) 24 SALR 97, it has been accepted law in South Australia that the doctrine of lost modern grant and the Prescription Act 1832 of the United Kingdom form part of the law of this State. That may explain why no prescription statute has been passed in this State. I see no reason to question that long accepted view of the law. Both the doctrine of lost modern grant and the Prescription Act were part of the general law regulating property in England at the date of settlement of South Australia and were suitable to the condition of the infant colony. I see no reason to doubt that they were part of the law introduced into South Australia at settlement. 3. The doctrine of lost modern grant and the provisions of the Prescription Act therefore apply to land in South Australia and moreover apply to land registered under the Real Property Act unless, or to the extent that, they are excluded by the provisions of that act. 4. Dr. Kerr in his book "The Principles Of The Australian Lands Titles (Torrens) System" states that the doctrine of lost modern grant cannot apply to Real Property Act land because title to such land is acquired by registration and the grant therefore cannot be lost. I think that that approach is technical rather than substantial. The doctrine is a mere fiction to enable the Courts to validate a right which is established by long user. The grant supposedly lost is fictitious and it is inappropriate to apply to it the sort of technical reasoning used in Dr. Kerr's book. The fictitious grant can sufficiently for the purpose of the doctrine, be supposed to be a registerable instrument granting the easement. The principle of indefeasibility of title embodied in section 69 of the Real Property Act makes the title of the registered proprietor absolute, to the exclusion of unregistered interests, save in the case of the exceptions specified in the section. The only relevant exception is that contained in placitum iv relating to omissions of easements from the title. The cases on the effect of this placitum have been cited by Debelle J. It seems to me that the non-registration of an easement which has never been submitted for registration cannot be described as an omission for the reasons given in Australian Hi-Fi Publications Pty Ltd v. Gehl (1979) 2 NSWLR 618. 5. The paramountcy of the title acquired by registration over unregistered interests including easements would have the effect of rendering easements acquired in consequence of lost modern grant or the Prescription Act ineffectual against a registered proprietor unless, and to the extent that, their effectiveness is saved by provisions of the act. Both under the doctrine of lost modern grant and the doctrine of prescription, the presumption is that the long user is in exercise of a grant or right which was in existence at the commencement of the required period of user. Such a grant or right clearly could not prevail against a registered proprietor who took bona fide for value after the commencement of the period of use. I do not think that there is anything in the sections dealing with easements or in the other provisions of the Act, which modifies that consequence of the principle of indefeasibility. 6. It remains to consider whether an easement arising from lost modern grant or the Prescription Act in respect of land under the Real Property Act can give rise to rights enforceable against a registered proprietor in personam. In Anthony v. The Commonwealth (1973) 47 ALJR 83, Walsh J held that the provisions of the Act were incompatible with the existence of easements arising from long user. He considered that the language of section 84 was "significant", but he based his decision largely upon section 88 which authorizes the Registrar General to enter upon the title easements "granted or created". Walsh J considered that an easement based upon prescription does not satisfy the description of an easement "granted or created". At that time, however, the Registrar General's authority under the section was to "enter the memorial of the instrument granting or creating such right of way or easement" upon the title. The section, as it then stood, clearly restricted the Registrar's authority to easements granted or created by instrument. In 1985, however, the section was amended to remove the reference to an instrument and it seems to me that the word "created" freed of its association with the word "instrument" is apt to include an easement based upon prescription or lost modern grant. The change in the legislation effectively distinguishes Anthony v. The Commonwealth. 7. Section 84 remains puzzling. It could be read as implying that only easements created by express grant or transfer are possible with respect to land under the Act, but I think that it is unlikely that the legislation would have intended to legislate upon such an important point in such an indirect way. It could be read as implying that although easements created by express grant or transfer are not binding upon registered proprietors subsequently taking bona fide for value, easements created by implication or arising from prescription or lost modern grant are so binding. I think, however, that it is equally unlikely that the legislation would have intended to effect such an important departure from the principle of indefeasibility in such an indirect manner. On the whole I think that the most likely explanation of the section is that the legislature considered, for some reason, that it was desirable to clarify the legal position of easements created by express grant or transfer but did not consider that to be necessary in the case of easements arising by implication or long user. 8. The grant of or right to an easement which is established by long user must carry with it an obligation on the part of the owner of the servient land at the beginning of the requisite period of user to do what is necessary to give efficacy to the grant or right. That owner cannot be permitted to derogate from the grant by refusing to do so. The benefit of the easement runs with the dominant land and that obligation therefore enures for the benefit of successive owners of the dominant land. Each owner is entitled to add to his own period of user any period of user of his predecessors in title provided that there has been no interruption between the periods: Aulkron v. Pakuranga Hunt Club (1905) 24 NZLR (Edwards J) at 240. The obligation to do what is necessary to make the easement efficacious includes the execution and lodgment for registration of the documents necessary to obtain registration of the easement: Australian Hi-Fi Publications Pty Ltd v. Gehl supra per Mahoney JA at 623. That was a case of an easement by implication under the principle in Wheldon v. Burrows (1879) 12 CHD 31, but there is no reason why it should not apply to an easement arising from long user. 9. The existence of an equity or right enforceable in personam to have all steps taken which are necessary for registration, is compatible with the principle of indefeasibility: Frazer v. Walker (1967) AC 569. That proposition is reinforced under the South Australian Act by the provisions of section 249 which expressly preserve equities. The owner of the dominant tenement is entitled to enforce his right to have the necessary documents executed and lodged for registration if the registered proprietor at the commencement of the period of user, still retains the power to confer the easement. The right would also be enforceable against a subsequent registered proprietor who has taken mala fides or without valuable consideration. If, however, a purchaser has become registered bona fide and for value after the commencement of the requisite period of user, the equity will be defeated. 10. It follows that when, as in the present case, there has been the same registered proprietor of the servient land throughout the requisite period of user, the easement can be enforced by order in personam against such registered proprietor. 11. I would answer the questions as proposed by Debelle J.

JUDGE2 COX J I agree with the answers proposed by the other members of the Court and for the reasons that they have given.

JUDGE3 DEBELLE J In Gartner v. Kidman [1962] HCA 27; (1962) 108 CLR 12 at 31, Windeyer J said of a claim for a prescriptive easement, "Whether an easement over land under the Real Property Act of South Australia can be established by prescription seems to be a debatable question." In that case, it was unnecessary to decide the question because the claim for a prescriptive easement was abandoned at the trial. It is now necessary to determine that debatable question. 2. The plaintiffs and the defendant own adjoining parcels of land. The defendant has been the registered proprietor of his land since 24 August 1955. The plaintiffs have been registered proprietors of their land since 6 May 1969. It will be noticed that both the plaintiffs and the defendant have been the registered proprietors respectively of their land for more than twenty years. 3. The plaintiffs assert that for at least twenty years from 7 May 1969 to 7 May 1990 they have used a road which traverses the defendant's land for the purpose of gaining access to and from their land to a public road. The plaintiffs' claim that by dint of their use of this road over the defendant's land they have acquired a right-of-way by prescription. 4. On 7 May 1990 the defendant obstructed the road to prevent the plaintiffs gaining any access to and from their land by means of the road across his land. On the same day the plaintiffs lodged a caveat over the defendant's land, claiming an easement in the nature of a right-of-way. In these proceedings, the plaintiffs' claim, among other things, 1. a declaration that they are entitled to a right-of-way over the defendant's land; 2. an injunction restraining the defendant from obstructing the right-of-way; and 3. an order directing the Registrar-General to make an entry upon the respective certificates of title to the effect that the defendant's land is subject to the right-of-way. The plaintiffs found their claim on the doctrine of lost modern grant, or alternatively, on the terms of the Prescription Act, 1832 (2 and 3 Will IV, c.71) U.K. ("the Prescription Act"). The action came on for trial before Prior J who reserved the following questions of law to the Full Court: 1. Does the doctrine of lost modern grant apply in respect of land already registered under the Real Property Act, 1886 with respect to use of that land occurring after it becomes registered land under that Act?

Do the rights provided for by the Prescription Act apply in respect of land registered under the Real Property Act, 1886 where the rights arise, if at all, after the land is registered under the Act? 3. Does the doctrine of prescription at common law apply in respect of land registered under the Real Property Act, 1886 where the prescriptive right arises, if at all, after the land is registered under the Act? No Prescription at Common Law
On the hearing of the case stated, Mr Cameron, who appeared for the plaintiffs, disavowed any claim based on the common law as to prescription. The concession was, I think, correctly made. One of the matters which a party seeking to establish an easement by prescription in common law must establish is that he has enjoyed his right from time immemorial, that is to say, "during the time whereof the memory of man runneth not to the contrary": Co.Litt.114b. The history of prescription is noted in Holdsworth, History of English Law, Vol.7, pp.343-352. A brief historical note is to be found in Bryant v. Foot (1867) LR 2 QB 161, 179-181 from which the following summary has been drawn. In order to provide a date of limitation more certain than time immemorial, the courts in England took as their guide the statutes that from time to time restricted the period within which actions for the recovery of land had to be brought. At first those statutes, instead of fixing a number of years, adopted the singular expedient of making the period of limitation run from particular dates or events. The last statute which adopted this plan was the Statute of Westminster in 1275, which fixed 1189, the first year of the reign of Richard I, as the period of limitation for the recovery of land by a writ of right. The courts of law then also adopted the year 1189 as the period to which, in all matters of prescription or custom, legal memory, which till then had been confined to the time to which living memory could go back, should thenceforth be required to extend. The law remained in these terms for two centuries and a half. The limitation period imposed in respect of actions to recover real property had become quite inoperative and Parliament fixed a new period of limitation in 1540, prescribing a fixed number of years as the limit within which a suit for the recovery of land should be entertained. But the courts failed to follow the legislature on this occasion and, in relation to prescription or custom, adhered to the existing rule which fixed 1189 as the time from which legal memory was to run. Though described by Cockburn CJ in Bryant v. Foot as "a somewhat startling rule", the date of 1189 has not been altered. In order to lighten the burden on those claiming an easement by prescriptive right at common law, the courts in England were willing to presume that enjoyment has lasted from 1189 if the claimant proved actual enjoyment from as far back as living witnesses could speak. In this way, a presumption was raised that enjoyment stretched back to 1189. It is plainly not possible in Australia even to presume user back until 1189, so that there is no room for the operation of prescription at common law in South Australia. The decisions in Hamilton v. Joyce (1984) 3 NSWLR 279 at 287 and Richardson v. Browning (1936) 31 Tas LR 78 accord with this view. Lost Modern Grant and the Prescription Act
Implicit in the questions which have been asked is the assumption that both the doctrine of lost modern grant and the Prescription Act are part of the law of South Australia. For the reasons which follow, I think that those assumptions are correct.
The doctrine of lost modern grant was a fiction developed by the courts to avoid the difficulties involved in seeking to establish rights of prescription at common law. Although a fiction, which was later discredited (see Griffith CJ in Delohery v. Permanent Trustee Co of NSW [1904] HCA 10; (1904) 1 CLR 283, 299 and the cases there cited), it was part of the common law of England in existence at the time of the settlement of the province of South Australia in 1836: Cross v. Lewis (1824) 2 B and C 686[1824] EngR 54; , 107 ER 538; Delohery v. Permanent Trustee Co of NSW at 310. The doctrine of lost modern grant was part of the general regulation of property which prevailed in England and as such was capable of being applied in the infant colony. As such, it was part of the common law introduced into South Australia on settlement: see Blackstone's Commentaries (1st ed.) Book 1, pp.104-105. Similarly, the Prescription Act, 1832 was part of the general regulation of property in England and was capable of being applied in the new colony. For that reason, it too formed part of the law introduced into South Australia at settlement.
In White v. McLean [1890] SALawRp 27; (1890) 24 SALR 97, Boucaut J held that, on the province of South Australia being settled, the doctrine of lost modern grant and the Prescription Act were applicable to the circumstances of the new colony and were a part of the law of South Australia. In the course of argument in Anthony v. The Commonwealth (1973) 47 ALJR 83, submissions were made on the question whether the Prescription Act was in force in South Australia. At p.91, Walsh J concluded that he did not need to express any opinion on that question. Although it has been suggested that the judgment of Boucaut J was "ill-considered" (see Bradbrook and Neave, Easements and Restrictive Covenants in Australia, para.536), the decision was, I think, correct. The laws which were applicable to the infant colony need not be limited to those laws which were capable of immediate enforcement: see Delohery v. Permanent Trustee Co of NSW at 313. The laws which were applicable to the infant colony would include those laws which regulated the manner in which affairs would be conducted and property held so that, if the owner of servient land did nothing to prevent a right by prescription arising under the provisions of the Prescription Act, he might find at the expiry of 20 years that an easement had been created in respect of his land. With respect, I think that White v. McLean was correctly decided. Three Important Considerations
The resolution of the first and second questions in the case stated is assisted if three important considerations are kept constantly in mind. The first is that, throughout the period of 20 years in respect of which the plaintiffs assert their adverse user, the defendant has been the registered proprietor of the land over which the road, the subject of this claim, runs. This is not a case where a party seeks to assert a prescriptive right based on user of the servient tenement where there have been successive registered proprietors of the servient tenement during the period of adverse user and the right-of-way has not been registered. Instead, the plaintiffs seek to establish a right in personam against the defendant as registered proprietor of what they claim to be the servient tenement. In other words, the plaintiffs claim a right in personam based on the doctrine of lost modern grant or, alternatively on the Prescription Act, where the acts or omissions which the plaintiffs claim give rise to the prescriptive right are the acts or omissions of the defendant as registered proprietor of the land over which the prescriptive right is claimed. The plaintiffs' claim is a claim to enforce a right personally against the defendant in consequence of the acts or omissions of the defendant himself.
Secondly, it has been authoritatively decided that the objectives of indefeasibility of title and conclusiveness of title which apply in respect of land subject to Torrens title legislation in Australia do not preclude the enforcement of rights which exist personally against the registered proprietor. The purpose of the indefeasibility provisions in the Real Property Act is to save persons dealing with the registered proprietor from the trouble and expense of going behind the register, in order to investigate the history of the transferor's title, and to satisfy themselves of its validity: Gibbs v. Messer (1891) AC 248, 254; Bahr v. Nicolay (No.2) [1988] HCA 16; (1988) 164 CLR 604, 613, 637, 653. But, although the indefeasibility provisions of the Act are designed to protect a transferee from defects in the title of the transferor, the principle of indefeasibility does not deny the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant: Frazer v. Walker (1967) 1 AC 569, 585, Bahr v. Nicolay (No.2). As Sir Garfield Barwick, who was a member of the Privy Council in Frazer v. Walker commented in Breskvar v. Wall (1976) 126 CLR 376, 384-5: "Proceedings may of course be brought against the registered proprietor by the persons and for the causes described in the quoted sections of the Act or by persons setting up matters depending upon the acts of the registered proprietor himself. These may have as their terminal point orders binding the registered proprietor to divest himself wholly or partly of the estate or interest vested in him by registration and endorsement of the certificate of title". This vulnerability on the part of the registered proprietor is not inconsistent with the concepts of indefeasibility or conclusiveness of the title. The certificate of title is conclusive. If amended by order of the court in consequence of an order enforcing a right personally against the registered proprietor, it is conclusive of the new particulars it contains: Breskvar v. Wall at 385; Bahr v. Nicolay (No.2) at 638. As Brennan J observed in Bahr v. Nicolay (No.2) at 653, the indefeasibility provisions are designed to protect a transferee from defects in the title of the transferor, not to free him from interests with which he has burdened his own title. By their claim in this case the plaintiffs seek to enforce a right personally against the defendant in consequence of the acts or omissions of the defendant himself. To adopt the words of Brennan J, the plaintiffs seek to enforce a right with which they say the defendant has burdened his own title. If the plaintiffs succeed in establishing their right against the defendant, the Court can give effect to that right by ordering the defendant to do all things necessary to register the right-of-way and so secure to the plaintiffs the benefit of the right-of-way: see s.64 of the Act and Australian Hi-Fi Publications P/L v. Gehl , 623.
The third consideration is that easements by prescription are not necessarily incompatible with the Torrens system. Easements by prescription have been upheld in some other States where land is under the Torrens system. The question whether easements by prescription can arise in respect of land under the Torrens system and in what circumstances they can arise will turn on the terms of the particular legislation to which the land is subject. Thus, easements by prescription have been upheld in Victoria, Tasmania and Western Australia: Nelson v. Hughes [1947] VicLawRp 30; (1947) VLR 227; Wilkinson v. Spooner (1957) Tas SR 121; Di Masi v. Piromalli (1980) WAR 57 (appeal allowed on different point (1980) WAR 173), but not in New South Wales or the Northern Territory: Jobson v. Nankervis [1943] NSWStRp 18; (1943) 44 SR(NSW) 277; Kostos v. Devitt (1979) ACLD 516; Australian Hi-Fi Publications Pty Ltd v. Gehl (supra); Anthony v. The Commonwealth (1973) 47 ALJR 83.
However, it does not follow that in all cases that adverse user over a period of twenty years will give rise to an easement by prescription in the case of land under the Real Property Act. As will be seen, the provisions as to registration contained in the Act appear to limit the circumstances in which an easement by prescription can arise in consequence of the operation of the doctrine of lost modern grant or of the Prescription Act to instances where the adverse user has occurred over a period during which there has been no change in the registered proprietor of the servient land.
Neither the researches of counsel nor my own research disclose any prior decision of this Court concerning the question whether an easement can arise by prescription where land is subject to the Real Property Act. Decisions of the courts of other States should be carefully applied because of the lack of uniformity of legislation concerning Torrens system land. Easements under the Real Property Act
Easements are dealt with in ss.81 to 90 (Part VIII of the Act) and in ss.223ln and 223lo of the Act. The effect of the provisions which are relevant to the determination of the questions in the case stated might be summarised in this way:
1. Land under the Act is subject to such rights-of-way only as are mentioned on the certificate of title of the land: ss.83 and 85.
2. Rights-of-way in respect of land under the Act which have been granted or created after the Act came into force may be registered: see s.88. Thus s.88 provides that, where a right-of-way or easement has been granted or created, the Registrar-General should make such entry on the original and duplicate certificates for the dominant and servient lands as he thinks fit. Section 81 provides that certificates of title may contain a statement of a right-of-way or other easement. Sections 82, 89 and 89a contain further provisions dealing with the description of easements in endorsements on the certificates of title and in instruments which grant or create the easement.
3. In order to preserve the principles of indefeasibility contained in the Act, s.84 of the Act provides that were an easement has been created by express grant or transfer over or in respect of any servient land under the Act, the easement will not bind any registered proprietor subsequently taking the land bona fide for valuable consideration unless the easement has been registered on both the original and duplicate certificates of title in respect of such land. The doctrine of indefeasibility is further reinforced by the provisions of ss.83 and 85 which provide that land will be held free from any right-of-way not registered on the title. In the case of rights-of-way created in consequence of the subdivision of land, s.90 provides that the deposit of the plan of subdivision with the Registrar-General will give every subsequent registered proprietor of any part of the subdivided land an entitlement to any right-of-way shown on such plan unless otherwise declared on the certificate of title. (The remaining provisions in Part VIII are ss.86, 87 and 90a which deal with matters not relevant to the questions asked in the case stated. Sections 223ln and 223lo deal with the creation of service easements and private easements on subdivided land.)
The intention of the Act is therefore to permit the creation of easements but, at the same time, the Act requires that the easement be registered if it is intended to bind the existing registered proprietor or the holder of any subsequent interest in the servient land.
The Act and in particular Part VIII do not expressly mention easements arising by prescription. Nor is there to be found in the Act any reference to easements of necessity or implied grants of easements. But there is nothing in the Act which expressly precludes easements by prescription or easements acquired by any means other than an express grant. Indeed, the Act would appear to allow for easements to come into existence by means other than express grant. The question whether easements by prescription can arise under the Act turns on s.88 of the Act.
Section 88 provides: "Whenever any right-of-way or other easement appurtenant to land under the provisions of this Act over land also under its provisions shall hereafter be granted or created, the

Registrar-General shall make such entry on the original and duplicate certificates for the dominant and servient lands as he thinks fit." 18. What s.88 enables to be registered is a right-of-way "granted or created" after the Act came into force. The word "created" refers to that which has been brought into being or has been caused to come into legal existence: see the definitions of "create" in the Macquarie Dictionary and Shorter Oxford English Dictionary. A right-of-way which arises by prescription is a right-of-way which has been caused to exist, that is to say, which has been created in consequence of the acts or omissions respectively of the registered proprietors of the dominant and servient land. Further, the word "created" has a wider connotation than the word "granted" and indicates an intention to signify rights-of-way coming into existence by means other than an express grant. This conclusion is reinforced by the disjunctive use of the words "granted" or "created" and by the fact that there are a number of means in addition to express grant by which easements might come into existence. In addition to creation in consequence of the subdivision of land, an easement might be created by implication: Billiet v. The Commercial Bank of Australasia Limited [1906] SALawRp 19; (1906) SALR 193; Dabbs v. Seaman [1925] HCA 26; (1925) 36 CLR 538, or by necessity, for example, where a vendor has sold part of his land and either the vendor or purchaser would have no access to a public street or road in the absence of a right-of-way. Further, had Parliament intended that easements or rights-of-way should come into existence only in consequence of an express grant or by transfer (see s.84) or in consequence of a plan of subdivision (see s.90), s.88 could have been drafted in other terms. Alternatively, Parliament could have enacted legislation to prohibit the creation of easements or rights-of-way by prescription. As to this last consideration, it is relevant to note that Parliament has legislated to prohibit the creation of two kinds of easements by prescription. In the case of easements as to light, Parliament has provided by s.2 of the Act No.1043 of 1911 (a provision which is now s.22 of the Law of Property Act, 1936) that after 26 October 1911 no right to the access or use of light to or for any building shall be capable of coming into existence by reason only of the enjoyment of such access or use for any period of time, or of any presumption of a lost grant based upon such enjoyment. More recently, in 1986, by vesting in the Crown all rights to the use and flow and to the control of all waters in this State, Parliament effectively abolished any easement by prescription in surface waters: see s.6 of the Water Resources Act, 1976. The terms of s.88 are therefore wide enough to include a right-of-way arising by prescription. 19. However, where a right-of-way arises by prescription, the owner of the dominant land will not be able to enforce the right-of-way against the registered proprietor unless and until it is registered: see ss.83 and 85. In any action by the owner of the dominant land to enforce the prescriptive right, it will be necessary to include as one of the prayers for relief a claim that the right-of-way be registered on the certificates of title in respect of the dominant and servient land. Should the Court find that a right-of-way has arisen by prescription over the defendants' land, the Court may order the registration of the right-of-way consistently with the principles expressed in Frazer v. Walker to which reference has already been made. 20. Thus, a right-of-way can arise by prescription in respect of land under the Real Property Act and be enforceable against the registered proprietor of the servient land, where the acts or omissions on which the prescriptive right is based are the acts or omissions of the registered owner himself and the easement has been registered. The consequence of registration is that the easement will be a benefit to the dominant land and a burden to the servient land notwithstanding changes in ownership of each parcel. Should the easement acquired by prescription not be registered, it will not only result in the easement being unenforceable against the existing registered proprietor of the servient land, but it will also enable a bona fide purchaser for value of the servient land to take the servient land unencumbered by the easement and without any period of prescription running against him. The Act, therefore, appears to preclude an easement arising by prescription where the adverse user has occurred over a period during which there have been successive registered proprietors of the servient land. But there does not appear to be any provision which precludes an easement arising by prescription where the acts or omissions upon which the claim to the prescriptive right is grounded are the acts and omissions of the registered proprietor against whom the prescriptive right is claimed. Given that the adverse user of the servient land must extend over a period of 20 years and that each registered proprietor of the servient land will acquire an interest free of any unregistered interest, the occasions on which an easement by prescription will arise are likely to be limited. 21. Reference to the legislative history of s.88 reinforces this conclusion. From 1886, when the Real Property Act was first enacted until the Real Property Act Amendment Act, 1985 (No.51 of 1985), s.88 was expressed in somewhat different terms. It then provided: "Whenever any right-of-way or other easement appurtenant to land under the provisions of this Act over land also under its provisions shall hereafter be granted or created, the Registrar-General shall enter the memorial of the instrument granting or creating such right-of-way or easement upon the original certificates of the dominant and servient lands respectively, and also upon the duplicates of such certificates". 22. The deletion from s.88 of a reference to "the instrument granting or creating the right-of-way or easement" opens the way for registration of easements acquired by prescription. In Anthony v. The Commonwealth (supra) Walsh J held that an easement based on prescription does not satisfy the description of an easement "granted or created" within the meaning of s.88 as it was then expressed. The decision in Anthony v. The Commonwealth can be distinguished. First, s.88 has been amended in an important respect since Walsh J gave his decision. Secondly, in that case, Walsh J had to determine whether an easement had been created by prescription over a period during which there had been a number of successors in title of the servient land. His Honour did not have to consider the question whether an easement could be created by prescription where, throughout the relevant period, there had been but one registered proprietor of the servient land. Lost Modern Grant and the Real Property Act 23. It is also necessary to consider is whether there is any element in the matters which must be proved to establish a right-of-way either under the doctrine of lost modern grant or under the Prescription Act which would render either incompatible with the Real Property Act. 24. Central to the doctrine of lost modern grant is the presumption that the grant has been lost. As Cockburn CJ noted in Bryant v. Foot (1967) LR 2 QB 161 at 181: "Juries were first told that from user, during living memory, or even during 20 years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury, nor anyone else, had the shadow of a belief that any such instrument had ever really existed. In this manner the courts have endeavoured to supply the deficiency of the law in the matter of rights acquired by possession and enjoyment." The presumption cannot be rebutted: White v. McLean; Dalton v. Angus (1881) 6 App Cas 740, 765, 767, 813, 814; Tehidy Minerals Limited v. Norman (1971) 2 QB 528, 547, 552; Thwaites v. Brahe [1895] VicLawRp 33; (1895) 21 VLR 192 and Oakley v. Boston (1976) QB 270, except where it can be established that the alleged grantor had no legal capacity to make the grant the presumption is rebuttable: Angus v. Dalton (1878) 4 QBD 162, 175, 186; Rochedale Canal Co v. Radcliffe [1852] EngR 451; (1852) 18 QB 287; 118 ER 108; Thwaites v. Brahe (supra) and Tuckett v. Bryce [1916] ArgusLawRp 105; (1917) VLR 36. 25. In the course of his reasons for judgment in Delohery v. Permanent Trustee Co. of NSW [1904] HCA 10; (1904) 1 CLR 283 at 312, Griffith CJ suggested that the doctrine of lost modern grant was capable of applying to land under the Real Property Act. Doctor Kerr has argued that the doctrine of lost modern grant is inapplicable to land under the Torrens System in jurisdictions other than Victoria and Western Australia except in the case of grants completely presumed before initial registration of the land sought to be affected: see Kerr, The Principles of the Australian Lands Titles (Torrens) System (1927), p.294 para.608. Doctor Kerr's thesis is that, since no interest passes in land under the Torrens system by execution of a document but only by entry on the Register and no such entry is capable of being lost, the doctrine has no application. Mr Baalman takes up the same reasoning and asks "Could it be argued that, if an existing instrument is ineffective to pass ownership, an instrument which in fact never existed, and which in legal fiction is presumed to have been lost, would be in a better position?": Baalman, Commentaries on the Torrens System in NSW (1951) 180; see also Baalman, Easements under the Torrens System, (1944) 18 ALJ 186. Doctor Kerr does not refer to Delohery's Case at all in his work and Mr Baalman questions the reasoning of the Chief Justice in so far as it deals with land under the Torrens system. 26. The views of Doctor Kerr and Mr Baalman would appear to overlook the position where, as here, throughout the period of adverse user, the same persons have been respectively the registered proprietors of the dominant and servient land. Given that the grant is presumed to exist, once the grantee establishes the existence of the right-of-way based on a presumed grant by the registered proprietor of the servient tenement, he can apply to have the grant registered so as to bind the servient land. There is nothing inconsistent with the Torrens system and the fact that it is a system of title by registration (see Barwick CJ in Breskvar v. Wall (supra) at 385) in presuming a grant in such circumstances. Where, however, there has been a change in the registered proprietor during the period of 20 years, the subject of the presumed grant, s.84 precludes the operation of any presumption because, even if it is presumed that a grant has been made, the grant will not, in the absence of registration, be binding on any registered proprietor subsequently taking the servient land bona fide for valuable consideration. The Prescription Act and the Real Property Act 27. Where the claim is based on the Prescription Act, the claimant will have to prove uninterrupted user for a period of forty years (in which case, broadly speaking, he will acquire an absolute and indefeasible right to the easement) or of twenty years (in which case the claim is liable to be defeated by any defence which at common law could defeat a claim by prescription, for example, by the registered proprietor of the servient land proving that the adverse use was either by force, in secret or that it was precarious that is to say, that the user was vi, clam, et precario). Since the essential element is the long uninterrupted user for a period of years, there is no inherent characteristic of a claim under the Prescription Act which would defeat a claim in respect of land under the Real Property Act. 28. Section 6 of the Real Property Act provides that no law inconsistent with the Act shall apply to land subject to the provisions of the Act. For the reasons I have given the Prescription Act is not inconsistent with the Real Property Act where throughout the period of adverse user the same person has been the registered proprietor of the servient land. "Omission" in Section 69 IV 29. In the course of his argument, Mr Cameron contended that, where an easement arises by prescription, it can be registered as an easement which has been omitted from a certificate of title pursuant to s.69 IV of the Act which provides: "Where a right-of-way or other easement not barred or avoided by the provisions of the "Rights-of-Way Act, 1881", or of this Act, has been omitted or mis-described in any certificate, or other instrument of title: In which case such right-of-way or other easement shall prevail, but subject to the provisions of the said "Rights-of-Way Act, 1881" and of this Act:" 30. The extent to which s.69 IV will permit the registration of an easement which has not been registered remains to be conclusively determined. Given the conclusion I have reached, it is unnecessary to determine this question. There is a division of judicial opinion. In Australian Hi-Fi Publications P/L v. Gehl (supra) at 622, the view was taken that it is unlikely that the use of the word "omission" would extend to include that which a person has had no opportunity of doing. It is more likely to refer to the absence of an endorsement on the certificate of title which should have been made but has not been made. On this view, unless and until the plaintiffs succeed in obtaining an order calling upon the Registrar-General to register the easement which has arisen by prescription, there will not have been any occasion on which it could be said, according to any ordinary usage, that there has been an omission to register the easement. A more liberal view has been taken in Queensland and Tasmania: see Stuy v. B C Ronalds P/L (1984) 2 Qd R 578 and Wilkinson v. Spooner (supra). Conclusion 31. For these reasons, where the same person has been a registered proprietor of the servient land, an easement by prescription can arise either under the doctrine of lost modern grant or under the Prescription Act and be enforced against that registered proprietor by an order in personam. If the owner of the dominant land succeeds in establishing his right, he will entitled to have such documents executed and lodged for registration as are necessary to procure registration of the easement. If an easement is found to exist, it will not be enforceable against the registered proprietor or his successors in title unless it is registered pursuant to s.88. 32. The manner in which the questions in the case stated have been asked does not allow for the statutory exceptions expressed in s.22 of the Law of Property Act, 1936 and in s.6 of the Water Resources Act, 1976. The answer to the questions in the case stated must be subject to those exceptions. 33. I would therefore answer the questions in the case stated as follows:- 1. Yes, in the sense that the Real Property Act does not preclude a claim in personam for an easement by the owner of the dominant land against a person, who has been the owner of the servient land throughout the period of user creating the presumption of lost grant, nor, if the owner of the dominant land can establish such a claim, a right to have such documents executed and lodged for registration as are necessary to procure registration of the easement. 2. Yes, in the sense that the Real Property Act does not preclude a claim in personam for an easement by the owner of the dominant land against a person, who has been the owner of the servient land throughout the period of user upon which an easement by prescription is based, nor, if the owner of the dominant land can establish such claim, a right to have such documents executed and lodged for registration as are necessary to procure registration of the easement. 3. No.

Prescription Act 1832

GOLDING v. TANNER No. 1894 of 1990 Judgment No. 3013 Number of pages - 15 Real property (1991) 56 SASR 482 [1991] SASC 3013 (18 September 1991)

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Judgment (9 paragraphs)

GOLDING v. TANNER No. 1894 of 1990 Judgment No. 3013 Number of pages - 15 Real property (1991) 56 SASR 482 [1991] SASC 3013 (18 September 1991)

CWDS Real property - easements - Torrens System - Whether easement by prescription can arise in case of land under Real Property Act, 1886

Legislation Cited (2)

Cases Cited (10)