Horsfall v Braye [1908] HCA 85

Horsfall v Braye [1908] HCA 85 - HCA 1908 case summary — Zoe

[157]

It is urged that such a statement is part of the " surrounding circumstances," so as to identify the subject matter of the con- tract. The only part of the subject matter relevant to this branch of the case consists of "appurtenances commonly used," &e. That plainly and necessarily means as used up to the critical time, whether the date of the conveyance or the time the contract is signed. But the argument is that before that con- tract was signed there was a statement of future intention as to the use of the retained land, which ipso facto altered the character of the appurtenance, and changed it from one which might be expected to continue, to one which no one could expect to continue. That appears to me, with great deference to the contrary opinion, to be fallacious. The question, as I understand it, is what quasi-easements were "commonly used," not what might in the future be commonly used. The test is to look at the facts as they existed during the user, and inquire as to the nature and extent of that user, and among other things to inform the mind as to whether the nature of the user was such, having regard to all the then surrounding circumstances including dura- tion, as to lead to the belief it was not merely a personal licence but in connection with the property sold. If, on the whole, up to the critical moment the user can be said to have substantially existed, and was of a character that showed that it was for the benefit of the severed land, it would, in my opinion, answer to the description in the grant. It is always in such case a question of fact as to the nature and extent and continuance of the user. An illustrative instance is found in Collins y. Slade (1), where the grant was of a right of way "as at present used and enjoyed by the said William Slade." It is quite immaterial whether the appurtenances commonly used were so used as of right. In May y. Belleville (2) for instance, Buckley J. had to determine what were "all rights of way hitherto exercised by them in respect of Coxhill," and that learned Judge said (3) that he was entitled to inquire whether there were rights of way exercised, not as being legal rights of way, but in fact."

[161]

Morris v. Edgington (1), or as Blackburn J. expressed it in Burges v. Wickham (2), "not simpliciter, but secundum quid." Lord Wensleydale in Waterpark v. Fennell (3), said : - * In deeds, as well as wills, the state of the subject at the time of execution may always be inquired into." In Duke of Devonshire v, Pattinson (4), the primd facie presumption arising from the words of a conveyance was held to be rebutted by the surround- ing circumstances in relation to the property at the time the deed was executed. Sir James Wigram, in his work on Extrinsic Evidence, par. 76, says that "the words of a testator, like every other person, tacitly refer to the cirewmstances by which at the time of expressing himself he is surrounded." To the same effect Lord Halsbury L.C. for the Privy Council in Van Diemen's Land Co. v. Marine Board of Table Cape (5), said :

The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expound- ing it." But declarations are not surrounding circumstances. They are in proper cases admissible as evidence of surrounding circumstances, as for instance to identify something of which the written document has left the identification to depend on some extrinsic proof. But the declarations are not substantive cir- cumstances, and cannot modify unambiguous words (see also Wigram, pars. 124 and 125). Preliminary negotiations are no part of the surrounding circumstances. Inglis v. Buttery (6), is distinet as to that. Lord Blackbwrn (7), after referring to the judgment of Lord Gigfurd that the written contract alone must be appealed to in order to find the bargain of the parties, said : - "Quite consistently with that, I think you may while taking the words of the agreement, look at the 'surrounding circumstances,' as Lord Ormidale expresses it, and see what was the intention. 'You do not get at the intention as a fact, as Sur James Wigram in his treatise on Extrinsic Evidence calls it, but you see what is the intention expressed in the words, used as they were with regard to the particular circumstances and facts with regard to (1) 3 Taunt. 24, at p. 30. (2) 3B. &S., 669, at p. 699. (6) 3 App. Cas., 552

[266]

no reference to the way and light, and strictly speaking, they are not appurtenances. But not only is it possible that between the agreement and the execution of the conveyance the parties with their eyes open determined to include the express grant, but I think in the absence of distinct testimony to the contrary they should be taken to have done so, The idea of fraud is not suggested in the pleadings or throughout the evidence; it is negatived by the primary Judge, and indeed the fact that both as to Braye and Cohen the appellant objected to a statement as to their actual belief, places any contention as regards fraud out of the question. But the cases I have cited on the point of implied grant of way of a formed and paved road, upon which the granted land is in a state of necessary dependence for its convenient and reasonable use, show that even if the express clause were struck out these would subsist by implication. And it is not suggested that the express clause covers more than these, Again, the matter may be even taken to a point beyond this on the question of common mistake. No one could say that in the face of the existing circumstances, and in the absence of any agreement to the contrary, a person would not naturally expect to have such rights as are claimed, The action of the appellant in putting up the notice on Bull's Buildings that he would either let the land at the back on building leases or put up suitable buildings - to which there was no possible access except through the lane - shows his view of the necessity of leaving the lane untouched, at all events until after his sale to the respondents. And when the Court is considering the question of mutual mistake, it is not concluded by the exact legal result of the terms actually agreed to, but the Court may be helped to its findings, whether the party resisting rectification bond fide intended what is written, by con- sidering whether he could reasonably entertain the belief he alleged. For this Ricketts v. Bell (1) is an authority. Vice- Chancellor Knight Bruce in dealing with a case of specific performance - and the principle here is the same - said "In my judgment, fair and reasonable men, in the cireumstances in which they were placed might, without supine ignorance, without gross (1) 1 De G. & S., 335, at p. 346,

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Judgment (271 paragraphs)