Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd

High Court of Australia|1966-07-01|Before: Menzies JJ, McTiernan J, Kitto J, Smithers J

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd [1966] HCA 76

ORDER Appeal allowed with costs. Order of the Supreme Court of the Australian Capital Territory set aside and in lieu thereof -

(1) Declare that the land comprised in certificate of title registered vol. 71 fol. 7031 extends to the middle line of the Murrumbidgee River and that by virtue of the said certificate of title the appellant is the registered proprietor of such land for an estate in fee simple.

(2) Grant a perpetual injunction to restrain the first-named respondent its servants and agents from entering any part of the bed of the Murrumbidgee River situated between that part of the bank of the said river which is within Portion 64 of the Parish of Gigerline and the middle line of the said river, and from removing any sand or other material from that part of the bed of the river, provided that nothing in this order shall prevent the said respondent from entering the said part of the bed of the Murrumbidgee River and removing any material therefrom as agent for the Commonwealth of Australia pursuant to the provisions of any of the reservations referred to in certificate of title registered vol. 71 fol. 7031.

(3) Order that otherwise the action be remitted to the Supreme Court of the Australian Capital Territory to hear the claim for damages by the appellant against the first-named respondent and the third party claim by the first-named respondent against the second-named respondent.

(4) Order that the respondents pay the appellant's costs of the action up to the date of this order other than costs of all interlocutory applications and that the costs of all interlocutory applications and of the third party proceedings be reserved to be dealt with by the Supreme Court of the Australian Capital Territory.

I have had the advantage of reading the reasons for judgment prepared by my brother Kitto and about to be delivered by him. I am in complete agreement with him and there is nothing I would wish to add. In my opinion, the appeal should be allowed.

The appellant sued the respondent company in the Supreme Court of the Australian Capital Territory, complaining that the company had entered upon certain land of the appellant in the Territory and removed quantities of sand therefrom, and seeking an injunction and damages. The complaint of entering and removing sand was made with specific reference to a part of the bed of the Murrumbidgee River abutting on a certain Portion 64. The appellant alleged that it was the registered proprietor, under the provisions of the Real Property Ordinance 1925-1963 of the Territory, of an estate in fee simple in the land comprised in certificate of title vol. 71 fol. 7031, that that land was bounded on the west by the Murrumbidgee River and included Portion 64, and that the appellant's title extended to the middle line of the river.

The respondent company admitted that it had been taking sand, and also gravel, from the bed of the river abutting the land in question, but it put the appellant's title in issue and specifically denied that the appellant had a title extending to the middle of the river. It also raised other defences of which none is material now, and set up what amounted to an argumentative reiteration of its denial of the appellant's title by alleging that the owner of the land from which it had taken the sand and gravel was the Commonwealth and that it had acted with the Commonwealth's permission.

By a consent order the Commonwealth was then made a defendant in the action. Against it the appellant claimed a declaration that its title to the land comprised in the certificate of title extended to the middle line of the river, and the respondent company for its part claimed indemnification from the Commonwealth against any damages that might be recovered by the appellant.

The action came on for trial before Smithers J., and that learned judge, after a hearing, gave judgment for the respondents upon the sole ground that the appellant had not proved a title to the bed of the river ad medium filum. From that judgment this appeal is brought.

By producing the certificate of title the appellant proved the title it had asserted in respect of the land therein described: Real Property Ordinance, s. 52 (1), including Portion 64 and so much of the other portions mentioned as was bounded by the river. The appellant's principal contention has been that, applying the rule of construction which the Privy Council in Lord v. Sydney City Commissioners [1] affirmed with respect to a Crown grant of land in New South Wales, it should be held that the description in the certificate of title should be understood to include the bed of the river to the middle line. The words of specific description in the certificate identify the land as being the pieces of land, situated in the Parish of Gigerline, particulars of which are set forth in a schedule; and they refer to it as being shown on a plan annexed and therein edged red, and as having been originally granted by the Crown grants mentioned in the schedule. The schedule in the certificate includes Portion 64 and describes it and other portions as having originally been granted to one James Wright on 8th April 1835. The plan which is annexed shows the whole of the land specifically mentioned in the schedule as being bounded on the west by the Murrumbidgee River, the red edging on the plan following the line of the east bank exactly and the north and south boundaries being indicated by lines which terminate at that bank. If one turns to the parish map, one finds that Portion 64 and each of the other portions which adjoin the river are shown with northern and southern boundary lines terminating at the river bank; and while the middle of the river is indicated by a distinctive line there is no legend to explain the significance of the line or to give it any relevance to the respective portions. The original Crown grants to James Wright dated 8th April 1835 describe each of the portions as being bounded on the west by the Murrumbidgee River.

It must be taken as settled by Lord's Case [1] that the rule of construction which the appellant invokes is applicable in this country. The rule is that a description of parcels as bounded by a non-tidal river is to be construed prima facie as including so much of the river bed as lies between the bank and the middle line of the stream. The respondents agree that the Murrumbidgee is a non-tidal river; but they say that the appellant's reliance upon the rule in this case is misplaced, first because a certificate of title is not an instrument to which the rule applies, and secondly because the rule, if applicable, is rebutted in this case by the proved circumstances surrounding the issue of the certificate.

For the proposition that the rule of construction is inapplicable to a certificate of title the appellants claim support both in the language of the Real Property Ordinance and in the nature and purpose of the Torrens system of registration which the Ordinance embodies. So far as the terms of the Ordinance are concerned, it is true that in not a few places, and s. 52 is one of them, a foothold may be found for an argument that only specific descriptions of land are contemplated. Nevertheless, it is not impossible to reconcile the language of the Ordinance with the existence of the rule. Indeed, in New South Wales, where an amending section (45A) has been enacted (by s. 39 of the Act No. 44 of 1930) providing that the rule applies and shall be deemed always to have applied to instruments registered under the provisions of the Real Property Act, it has not been found necessary to make consequential alterations in the terms of the Act generally. Judicial decisions upon the point favour the application of the rule: Williams v. Booth [1] ; In re Priddle [2] ; In re White [3] . It is true, as the respondents have urged upon us, that if the rule applies to a certificate of title uncertainty may arise from the fact that since the presumption is rebuttable the question whether a certificate describing land as bounded by a river comprises also a half of the river bed is one which may depend upon circumstances extraneous to the instrument and incapable of being ascertained by search of the register. But this can hardly be regarded as important when one considers the case of a Crown grant of similarly described land. The Privy Council's decision that the rule applies to Crown grants in the colony preceded the passing of the first Real Property Act, the Act 26 Vict. No. 9 N.S.W., yet the fact that it applied to them did not deter the legislature from enacting that all land granted by the Crown on or after 1st January 1863 should be subject to the provisions of the Act, and giving Crown grants the same effect, when registered, as certificates of title: see ss. 12, 34 and 40 of the Act 26 Vict. No. 9 N.S.W., ss. 13, 35 and 42 of the Act No. 25 of 1900 N.S.W., and ss. 17, 47 and 58 of the Ordinance. Obviously there was no intention to displace Lord's Case [4] in respect of future Crown grants, and it is difficult to suppose that the Act intended, while accepting the resulting uncertainty so far as Crown grants were concerned, to reject it as regards certificates of title.

(1910) 10 C.L.R. 341. 2. (1916) 16 S.R. (N.S.W.) 54. 3. (1927) 27 S.R. (N.S.W.) 129. 4. (1859) 12 Moo. P.C. 473 [14 E.R. 991].

The respondents next contend that the rule of construction is inapplicable because it has to do only with the intention to be ascribed to grants, conveyances and other instruments operating to affect, as distinguished from merely recording, the title to land. In Central London Railway Co. v. City of London Land Tax Commissioners [5] , Farwell L.J. adopted this limited view of the relevance of the rule, but Cozens-Hardy M.R. [6] and Kennedy L.J. [7] in the Court of Appeal, and Lord Atkinson [1] and Lord Moulton [2] in the House of Lords, thought it applied to every description of parcels whatever the nature of the document. It should be pointed out at once that even if Sir George Farwell's view be correct it will not assist the respondents here, for the essence of the Torrens system is that upon registration a certificate of title will operate (unless cancelled or corrected under s. 14 (1) (d) or ss. 160-162 and except in the case of fraud) to defeat a pre-existing title with which it is inconsistent: see ss. 52, 58; Assets Co. Ltd. v. Mere Roihi [3] . A person who by this means is deprived of land or of an estate or interest in land is remitted to an action against the Commonwealth for damages under s. 154. Accordingly the Registrar, in issuing and registering a certificate of title, is not merely recording an existing title. Every reason that may be suggested for upholding the rule of construction as an aid to identifying the land to which the dispositive intention of a grant extends has at least equal force when the task is to identify the land to which a certificate of title intends to give the Torrens degree of indefeasibility of title.

[1911] 2 Ch. 467, at p. 479. 2. [1911] 2 Ch., at p. 474. 3. [1911] 2 Ch., at p. 487. 4. [1913] A.C. 364, at p. 371. 5. [1913] A.C., at pp. 384, 385. 6. [1905] A.C. 176.

The wider view that the ad medium filum rule applies to descriptions of parcels in documents of all kinds has this consideration to support it, that any reference to land as a subject of title necessarily connotes a grant, or a grant and mesne assurances, and so necessarily imports, in the case of land bounded by a non-tidal river, that unless the prima facie presumption has been rebutted with respect to one or more of the instruments of title the bed of the river (as far as the middle line) has passed, by force of implication in each of these instruments, to the person whose title is referred to. Perhaps it is because of this that along with the rule of construction there has developed a prima facie presumption of fact, namely that the ownership of the bed of a non-tidal river is divided between the riparian owners by the middle line of the stream: City of London Land Tax Commissioners v. Central London Railway Co. [4] ; Halsbury's Laws of England, 3rd ed., vol. 39, p. 510, par. 667. In the present case this presumption, unless rebutted, entitled the appellant to succeed even if the rule of construction should be held inapplicable to a certificate of title; for the certificate which was put in evidence afforded presumptive proof of title to the material part of the bed of the Murrumbidgee, not only if that part was prima facie to be considered as comprised in the certificate, but equally if it was prima facie to be considered in the same ownership as the land comprised in the certificate though not itself comprised therein.

There is no evidence of any such surrounding circumstances as might tend to suggest that the Crown, when making the original grant, or any subsequent alienor when executing his conveyance or transfer, or the Registrar-General when issuing the certificate of title, intended that the land ad medium filum fluminis should not be included in the instrument or was not to be the property of the owner for the time being of the riparian land. The only submission that has been made to the contrary is that an intention sufficient to displace the rule is to be inferred from the fact that the appellant's predecessors in title, in the application which they made in 1903 to have their land brought under the provisions of the Real Property Act of New South Wales - it was brought under the provisions of the Real Property Ordinance of the Territory by Gazette notice issued in 1959 under s. 35 - described the land as bounded by the Murrumbidgee River, and furnished a plan which showed the east bank of the river as the boundary. The description was inserted in obedience to the instruction appearing on the statutory form (see First Schedule to the Ordinance) to "give description of the property in full". It is said in view of this that what must have been intended, and therefore what was brought under the Act, could not have been more than the land to which the application expressly referred, and that the resulting certificate of title should be construed as confined to the same land, especially since the form of the certificate as prescribed in the Fourth Schedule requires a "sufficient description to identify the land". If this argument were to be accepted, the result would be that the title to the bed of the river ad medium filum, even if it had reached the appellant's predecessors, could not have passed to the appellant by the registration of the transfer to it of the riparian land.

It may be sufficient by way of answer to point out, as the Privy Council pointed out in dealing with similar reasoning in Maclaren v. Attorney-General (Quebec) [1] , that "it is precisely in the cases where the description of the parcel (whether in words or by plan) makes it terminate at the stream and does not indicate that it goes further that the rule is needed". Prima facie, the application and the plan must be understood with the aid of the rule, and accordingly the description of the riparian land must be taken as being a description of that land plus one-half of the river bed. There being no evidence of contrary intention, the description was thus "a description of the property in full"; for the express nomination of the river as the boundary was enough to bring in the contiguous half of the river bed and make the description "a sufficient description to identify" the riparian land and the land of the alveus taken together. In my opinion the following passage in their Lordships' judgment in Maclaren's Case [1] applies to the application and to the certificate of title as it would to a grant, and is fatal to the argument: "In construing the parcels in a document affecting land, say for example a grant, the law treats the parties as describing the land of which the full use and enjoyment is to pass to the grantee. But in cases where the possession of the parcel so described would raise a presumption of ownership of the land in front of it ad medium filum aquae or viae the law holds that it is the exclusion of that land which must be evidenced by the terms of the grant and not its inclusion, and that if not so evidenced that land will be deemed to have been included in the grant if the grantor had power to include it. Hence it is settled law that no description in words or by plan or by estimation of area is sufficient to rebut the presumption that land abutting on a highway or stream carries with it the land ad medium filum merely because the verbal or graphic description describes only the land that abuts on the highway or stream without indicating in any way that it includes land underneath that highway or stream."

[1914] A.C. 258, at p. 272. 2. [1914] A.C., at p. 273.

Finally it should be pointed out that even if the proper conclusion were that the application and the resulting certificate of title ought not to be construed as extending to the adjoining half of the river bed, it would not follow that the appellant has no title to it. The possibility would not have been excluded that by some means, for example by a common law conveyance, the appellant has got in the title. The presumption of common ownership of the river bed and the adjoining land would be undisplaced.

For these reasons I am of opinion that the appeal should succeed.

I have had the opportunity of considering the reasons prepared by Kitto J. in this appeal and it is sufficient to say that I agree and do not wish to add anything.

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Judgment (24 paragraphs)

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