Hazlett v Presnell

Hazlett v Presnell - [1982] HCA 58 - HCA 1982 case summary — Zoe

[21]

There is no direct authority on the question whether the boundary between New South Wales and Victoria was, subject to the effects of gradual erosion and accretion, fixed by the Imperial Acts of 1850 and 1855 by reference to the "Course" and "the whole Watercourse" of the River Murray in the mid-nineteenth century or whether the boundary which those Acts established varies from time to time with changes in the identity or configuration of the watercourse of the flowing waters of the river. The recorded concern to ensure that New South Wales could enforce its customs laws on the river and the express statutory provision that "the whole Watercourse shall be within the Territory of New South Wales" lend some support for the view that the boundary between the two Colonies was intended to be a variable one which would ensure that, while the waters of the river flowed, they flowed in New South Wales regardless of changes of course that might occur over the years (cf. per Stephen J., Ward's Case [14] ). On the other hand, the precise location of a boundary can have important effects not only in terms of abstract questions of legislative competence but in terms of the lives, rights, duties and liabilities of people. It has long been known that the course of a river can be dramatically changed by natural phenomenon. This is particularly so in the case of a river like the River Murray whose waters are prone to overflow their banks in time of flood and cease to flow in time of drought. It is unlikely that it was the intention of the Imperial Parliament that a sudden and observable change in either the source of the River Murray nearest to Cape Howe or in the course of the river would involve not only the conversion of territory of one Colony into that of the other but could also involve a change of residence, status, rights and liabilities for those who lived in the affected area. To adapt the words of Isaacs J. in South Australia v. Victoria [15] , it would seem unlikely that the Imperial Parliament intended that the titles of settlers would become insecure or void, judicial jurisdiction should arise and disappear, laws come into or cease from operation, in conformity with changes in the source or course of a river whose geomorphic history and variability were unknown and which was unsurveyed and partly unexplored. Indeed, as O'Connor J. [16] commented in that case "the very term "boundary" connotes in its ordinary natural meaning a line of division capable of being permanently fixed" (see, also, per Stephen J., Ward's Case [17] ).

[29]

The necessity of delimitation might plainly arise suddenly and urgently - in those days communication with London was tedious and protracted - instant action was necessary to protect life and property, to restrain lawlessness and punish crime, as well as to promote settlement. The Imperial authorities had not undertaken the task of delimitation, the Governor's Commissions did not contain any restriction in this respect, and the irresistible inference, to my mind, is that the task had been left to the local authorities, who were assigned functions and responsibilities side by side, and with no other means of fulfilling them, and therefore it was by necessary implication an act within the scope of their authority and within their powers. And, once done, it was of the essence of the matter that it should be permanent. A boundary line known to be incorrect and delimited as a mere passing convenience, simply to establish liability for murder and to try and punish offenders, can hardly be conceived as even a temporary compliance with the paramount law. A similar approach was adopted by the Judicial Committee of the Privy Council when the case of South Australia v. Victoria went on appeal [21] . Their Lordships, after remarking that the letters patent of 19 February, 1836 which fixed the boundary between the Province of South Australia and the Colony of New South Wales as the meridian of the 141st degree of east longitude had the "authority and force of an Imperial Statute", said: To define a boundary for such purposes it is necessary that the boundary line should be described or ascertainable on the actual surface of the earth. In the case of such a boundary as that defined by the Letters Patent it was necessary in order to accomplish this that there should be an Executive act so defining and representing the enacted boundary; and seeing that such an Executive act was and must have been known to be essential to render the provision in the Letters Patent a boundary such as was needful for the purposes of the Act, their Lordships have no doubt that on well-known principles of the interpretation of Statutes the Letters Patent must be taken to have implied and authorized the delineation and determination of the effective boundary by such an Executive Act.

[41]

Independently of any effect due to the compact as such, a boundary line between States or provinces, as between private persons, which has been run out, located and marked upon the earth, and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant; and the line so established takes effect, not as an alienation of territory, but as a definition of the true and ancient boundary. Lord Hardwicke in Penn v. Lord Baltimore [30] ; Boyd v. Graves [31] ; Rhode Island v. Massachusetts [32] ; United States v. Stone [33] ; Kellogg v. Smith [34] ; Chenery v. Waltham [35] ; Hunt on Boundaries, 3d ed., p. 306. These principles are analogous to the doctrine of adverse possession established in the common law at least since the Statute 21 Jac. 1 c. 16: possession for 20 years is "proof of seisin" (see, generally, Buller's Nisi Prius, 4th ed. (1785), p. 103; Holdsworth, A History of English Law, vol. VII 2nd ed., p. 64;Doe d. Lewis v. Davies [36] , per Parke B.). However, in relation to the boundaries of former colonies the courts both in the United Kingdom and the United States have regarded it as necessary that there should be an acquiescence by one side in the claims of the other as well as an assertion and exercise of sovereignty by the other for a long period (see Direct United States Cable Co. v. Anglo-American Telegraph Co. [37] and Arkansas v. Tennessee [38] and cases there cited). We need not consider whether for this purpose acquiescence and prescription should properly be regarded as separate doctrines (a view which appears to be taken by Blum, Historic Titles in International Law, (1965) pp. 29-31) or whether acquiescence is one of the elements necessary for the acquisition of prescriptive title (which seems to be the view of Professor O'Connell, International Law, 2nd ed., (1970), vol. 1, pp. 423-424, and MacGibbon, The Scope of Acquiescence in International Law, British Yearbook of International Law, vol. 31 (1954), 143, at pp. 182-183 ). In the present case there was acquiescence as well as assertion of power and jurisdiction for a long period. 1. (1893) 148 U.S. 502, at pp. 522-523 [37 Law. Ed. 537, at p. 544]. 2. (1910) 217 U.S. at p. 42 [54 Law. Ed., at p. 658]. 3. (1750) 1 Vesey Sen. 444, at p. 448. 4. (1819) 4 Wheat. 513. 5. (1838) 12 Pet. 657, at p. 734. 6. (1865) 2 Wall. 525, at p. 537. 7. (1851) 7 Cush. 375, at p. 382. 8. (1851) 8 Cush. 327. 9. (1837) 2 M. & W. 503, at p. 516 [150 E.R. 856, at p. 862]. 10. (1877) 2 App. Cas. 394, at pp. 420-421. 11. (1940) 310 U.S. 563, at pp. 569-570 [84 Law. Ed. 1362, at p. 1366].

At a glance

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Decision date

Before

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Judgment (43 paragraphs)

Parties