Landale v Menzies [1909] HCA 48

Landale v Menzies [1909] HCA 48 - HCA 1909 case summary — Zoe

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ue pest had been in foree for some years. The Rabbit Act 1890, i by sce. 20, provided that the owner of a holding might enforce from an adjoining owner a contribution of one-half the cost incurred in making common boundary fences rabbit-proof ; and previous payment of contributions under the Dividing Fences Act 1829 was not to prejudice any claim under the Rabbit Act where a fence not originally rabbit-proof had been made so. The owners of Mundiwa and Cornalla substituted for the processes of this Act in 1895 an arrangement by which Landale was to make and keep rabbit-proof that part of the fence running westward of a certain bridge over the creek near the middle of the existing boundary line, and Ricketson was to secure similarly that part of the fence east of the bridge. This arrange- ment was carried into operation, its effect being that instead of one owner making the whole line secure and exacting half the cost from the other, each of them made his own half efficient at his own cost. The convenience of this modification arose from the fact that the whole of the fencing west of the bridge ran on the northern side of the creek, except the portion which had thrown the bridge waterhole into the Mundiwa occupation, while eastward of the bridge the whole line was on the Cornalla side. This agreement could not of course have been made with- out the acceptance by both parties of the " give and take fence " as the boundary by which the future occupation was to be limited, not for a day, nor for any such transient time as would have rendered their expenditure a futility or a mere extravagance. Only one alteration of the fence line was made at that time. It was unimportant. About half a mile from the bridge and north of it Landale, apparently without any complaint from anyone, remoyed a short section of the fence further into his own land on higher ground, so as to minimise danger to the fence itself in the event of flood. In 1908 he found that some work done by the Government elsewhere in the district had lessened the risk of flood, and therefore in February of that year he restored that part of the fence to its original position nearer the creek. In this restoration the manager of Cornalla, whom the plaintiff informed of it, acquiesced. After the agreement of 1895, the

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_ was overseer for about a year in 1883, testifies that apart from his own actions in April 1908, complained of in this suit, any _ changes that he made in the fence did not affect the distribution of the water between the two stations. The same thing, but without the exception, may be said of the plaintiff's dealings. In April 1908 the weather was extremely dry, and the water had failed in most of the Cornalla paddocks. On the Sth of that month the defendants' manager wrote to the plaintiff stating these facts, and intimating that owing to their

existence he was "shifting the fence below the bridge on Tuppal, _ so as to get a share of the water in the hole there." On the 9th he received a letter of protest from the plaintiff, who pointed out ~ that the boundary fence was a " give and take" one and had been
erected for years. Mr. Kilpatrick did not reply to this protest. On the 10th the plaintiff saw him and verbally renewed it, but 'Mr. Kilpatrick asserted a right to take the water. On the 11th, three days after his letter, he cut a passage through the fence south of the creek, opposite the bridge waterhole. At cach side of this gap he ran a fence to the creek, making a "lane," and joined the northern ends of these two new fences by another along the middle of the water hole from west to east, about a chain in length. At this hole he watered large numbers of Cornalla sheep - as many as 3,000 to 4.000 at a time. The sheep came to this water regularly. Not only did the plaintiff lose the use of half the waterhole, a very precious possession at such a time, but his own sheep were practically prevented from watering there. Before the fence was cut they were able to cross a in the dry part of the creek bed and drink on the southern bank, _ which was safe. After the alterations made by Kilpatrick, they could not water save on the north bank, which was steep, clayey, and boggy, and therefore dangerous. Thus the plaintiff says he was compelled to remove a flock of breeding ewes to a paddock on the river where he had to feed them by hand. The percentage of their lambing was about fifteen, had they been left in the _ paddock, and had the water not been interfered with, the per- centage would have been 50. It is not necessary to deal with any other head of damage claimed. There is here primd facie

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evidence of some substantial damage sufficient as a basis inquiry if the plaintiff is entitled to relief. On that questi have in the first place no doubt that the facts prove an a ment acted on for many years between the owners of the two stations as the necessary result of the establishment of the " gi and take" line of fencing, that each was to have the exclusive enjoyment of the land and water on his own side of the fence, which was erected and maintained, even before the rabbit-proof- ing, for the purpose of the mutual exclusion of the flocks depas- turing north and south of it respectively. There is no fact on which to found an inference, for which the defendants contend, that the fence was established and kept in repair subject to a right to cach party to depasture and water his stock on both sides of it, and therefore among the flocks of his neighbour. ' In face of such a right, what would be the use of a dividing fence? Such an arrangement, if anyone could be so silly as to make it, could only be carried out by continuous shepherding to prevent otherwise inevitable confusion of flocks, and shepherding has been driven out by fencing, and will never be resorted to again as a system in this State. The agreement of 1895, so far as it was expressed, was strong in its confirmation of the then existing relations between the adjoining owners; and the impli. cation from it is strong that the grant to each by each of a right " to exclusive possession of the inconsiderable area of his neig bour's land cut off by the fence, was inseparable from the arrange- _ ment even without writing or spoken word. The difficulty is as to the duration of this reciprocal right to be implied from the circumstances. I do not see that it can be fixed either as a definite term of years or as a yearly tenancy. It is clear, however, on the facts proved that it was never within the contemplation of the parties that the careful adjustment 0 their respective holdings and the equitable distribution, so far as they could make one, of the water, together with the expense of eleven miles of wire fencing (not to speak of the subsequent - netting against rabbits) were to be worth no more than & moment's purchase. The resultant peace and security could never have been made subject to a right on the part of either of them, on the first or any subsequent day after the completion of

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our agreement ; withdraw your sheep to-day. I will have no boundary but the creek bed, and therefore no fencing to outlast the flood that may destroy it in a night." Adjoining holdings could not possibly be managed on such terms. And especially where the distribution of water is the essence of a fencing agree- ment, no man in his senses would undertake its burden unless _ with fairly ample assurance against any such caprice of his neighbour. In any season it takes some time to make new ar- rangements to graze and water thousands of sheep. In dry seasons, which recur so often, such removals spell ruin unless the best available country be secured, and that generally takes con- siderable time. The circumstances of pastoral occupation in this country forbid the notion that holders of conterminous runs abutting on watercourses would enter into "give and take" fenc- ing agreements on any such terms. The implication must be no wider than is necessary ; but the minimum that is necessary in ~ such cases is a notice sufficing to give its recipient reasonable time to look about him and make arrangements for the protec- tion of his stock. Woodfall (17th ed., p. 141) defines a lease as "a contract for the exclusive possession of land or tenements for some certain number of years or other determinate period"; and adds that "a licence to inhabit or enjoy, if it give an exclusive right to occupy, may have the same effect": R. v. Morrish (1). Where the right is made reciprocal, the one exclusive right being the consideration for the other, it cannot be doubted that some tenancy is created on each side. But for what term or period ? In Doe d. Martin v. Watts (2) Lord Kenyon C.J. says: - So long ago as the time of the Year Books it was held that a general occupation was an occupation from year to year, and that the tenant could not be turned out of possession without reasonable notice to quit." In Braythwuyte v. Hitchcock (3) Parke B. says: - "Although the law is clearly settled, that where there has been an agreement for a lease, and an occupation without payment of rent, _ the occupier is a mere tenant at will; yet it has been held that if

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he subsequently pays rent under that agreement, he thereby be- comes tenant from year to year. Payment of rent, indeed, mu be wnderstood to mean a payment with reference to a yearly holding ; for in Richardson y. Langridge (1), a party who had paid rent under an agreement of this description, but had not - paid it with reference to a year, or any aliquot part of a year, - was held nevertheless to be a tenant at will only." I am of the opinion which I find expressed in the notes to Clayton v. Blakey (2), that wherever a person is in possession of land in which he has no freehold estate, nor tenancy for any certain term, but which he nevertheless holds by consent of the true owner, that person is tenant at will. If his occupation is beneficial he is liable to pay for it. In the present case a continuing compensa-~ tion has been made on each side. If, then, it is conceded that the consideration moving from each party, though equal to a reserved rent, was not referable to a yearly holding, it must also be conceded that it is not referable to a quarterly or monthly - tenancy. But it is not sound reason to conclude from that con- | cession that there is no tenancy at all, or that if there is one, the occupancy of either party, with his right to the water, is neces- sarily liable to be ended instanter by the other. Even in the case of a mere letting of sporting rights a reasonable notice is _ necessary : Lowe v. Adams (3). It may be that an authoritative decision cannot be found to meet the exact case; but that is because in England a case presenting the same circumstances has not occurred, nor is one likely to occur. Where an inference from facts is the only legitimate one they will reasonably bear, - and is justified by the ordinary principles of law, I do not fear to say that it may be adopted, together with the legal con- sequences that follow from its adoption. The choice is between doing that and calling by the name of an inference something that we know to be contradicted by the proved facts. In my opinion, although the rights reciprocally granted to exclusive possession amount only to tenancies at will as to the land cut off on each side by the fence, of course with the water on it, such - tenancies are determinable only at the expiration of a notice on -

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Judgment (193 paragraphs)