Mount Bischoff Tin Mining Company Registered v Mount Bischoff Extended Tin Mining Company [1913] HCA 6;

Mount Bischoff Tin Mining Company Registered v Mount Bischoff Extended Tin Mining Company [1913] HCA 6; - HCA 1913 case summary — Zoe

[12]

There was no positive law in force at that time requiring the corners of mining leaseholds to be actually marked, but it is at least highly probable that they would be marked, as there would be no other means of denoting the area in such country. But in 1883 the Mineral Lands Act 1884 was passed by the Tasmanian Parliament, which provided by sec. 71 that "Every lessee, during the term of his lease shall erect and keep erected, at each and every angle of the land comprised in such lease, a post eight inches in diameter, and not less than four feet six inches above the ground; and such lessee shall cut and maintain at each such post trenches, not less than three feet in length and nine inches in depth, indicating the direction of the boundary lines"; with a penalty on failure. After that it was the duty, as well as the interest, of lessees to mark and maintain their boundary posts. The term "lessee" in the Act applied to existing as well as to future holders. It is highly probable, then, that the lessees did mark and maintain the corner posts at the points which, at that time, were believed to be the true ends of the southern boundary of lease No. 49. In 1891, according to the evidence, a Mr. D. Jones, who is now a district surveyor under the Government, and who assisted Sprent in marking the line in 1872, was employed by the appellants to re-define their boundaries at this place. He says that at that time he found the points A and B marked by pegs, and that he re-pegged and re-marked the line in accordance with the original pegs. He says further, that Sprent had been sent between 1877 and 1880 to re-define the line AB. Another witness, Root, who is now a sawmiller, assisted Jones in 1891 in the work of re-defining the boundaries. He says that they found there the old marks and the pegs at the corners, that is, at the points A and B; and that they made fresh marks on the trees, which they found showing old marks, and put new pins in where the old ones came out. If his evidence can be relied on at all, the points A and B were marked on the ground as long ago as 1891, and had been marked there for a considerable time, for the marks were then old. So much for the plaintiffs' case.

[28]

In the plaintiffs' first consolidated lease the length of the line BD is given as 71 chains 90 links, in their second consolidated lease as only 70 chains 31 links (which it appears is the true length as now accurately computed). But in the defendants' consolidated lease the length of this line BD is given as 71 chains 43 links, measured from B southwards to D. On this they say: "Our consolidated lease is prior in time to the plaintiffs' last consolidated lease; the point D should be taken as the starting point for measuring the line BD, and this will bring the end of it to a point 1 chain and 12 links north of the actual marked position of B." It is suggested that the alteration in the length of the line BD in the plaintiffs' second consolidated lease indicates a change in intention, and that it was intended to grant less land than the plaintiffs had previously held. I have already shown that the position of the boundary AB does not depend in any way upon the length of the line BD. The explanation of the change in the lengths is clear upon the evidence. The present measurements, as is recited in the last lease, are taken from recent surveys. The original measurements were only approximate, in consequence of the difficulty of the country, and the inaccurate method - what is called breaking the chain - which was adopted in measuring the horizontal lengths on steeply inclined planes. The result was that all the distances originally given were too great, and that when the accurate surveys were made the lines were found to be shorter, with the further result that the area enclosed by those lines was apparently somewhat diminished, so that the last consolidated lease, although it included a few additional acres, expressed the grant of an aggregate smaller holding. But as to the identity of the land comprised in the leases there can be no doubt, as is manifest upon comparison of the diagrams upon the successive leases. The fact, therefore, that in defendants' lease the line from B southward to D is described as of a length of 71 chains 43 links, is absolutely irrelevant. Whatever the length of that line is, it starts from B, which is on the boundary between No. 49 and 3644/93M. The defendants wish to read the description in their lease backwards, to make D instead of B the starting point of the line, and to make the length 71 chains 43 links conclusive.

[41]

For a good many years back, according to practically all the evidence, and certainly according to very clear and distinct evidence of some witnesses whose reliability was not questioned by the learned primary Judge, the plaintiff company had, rightly or wrongly, adopted a boundary line, which if correct would show the defendants had trespassed on the plaintiffs' land. This line had never been challenged by the Crown or the defendants at all, but was taken to be the true line. The letter from defendants' manager to plaintiffs' manager, dated 11th March 1911, appears to recognize the de facto line as the boundary, and learned counsel for the defendants in stating his case said "Defendants' lease goes N. of AB. Defendants' lease is 1909. We are the owners of the piece in dispute because it is included in our lease." The present importance of that line is that it indicates that the plaintiff company was in actual physical possession of the land upon which the acts complained of were done. The acts themselves were admitted, but the accuracy of the position of the boundary line having regard to the documentary title, is the one point in contest. Evidence was given as to this by both sides; the learned primary Judge, as appears by the judgment of the Full Court, could not make up his mind whether that line was accurate or not. He thought, and the Full Court supported him in his opinion, that the burden of establishing the accuracy of the de facto boundary rested on the plaintiffs as an essential element to prove the trespass, and as he was not satisfied of that, he gave a verdict for the defendants. Much of the argument before us was directed to the point whether there was any evidence upon which a jury could reasonably find a verdict for the defendants by refusing to be satisfied of the plaintiffs' contention that the locus falls within their own title. If that were the sole question, I should hesitate to say there was not, however much I should feel pressed by the testimony the other way; and remembering the rule of law on the subject that, in such a case as the present, this Court is not a court of appeal on the facts and before setting aside a verdict it is necessary to determine whether upon the evidence before the jury it was one which they could reasonably find, I am not prepared to say I would accede to the appellants' view: See Pearse v. Schweder[1]. Further, some questions of difficulty presented themselves during the argument as to the proper construction of the two competing extant leases upon which the respective titles now depend, and how far parol evidence of former leases and original surveys may control them. Those questions I leave undetermined as unnecessary at the present stage. They may hereafter become important, and may to some extent depend upon facts which may appear on the new trial, and therefore cannot be dealt with now; and if they do, reference may be made to Waterpark v. Fennell[2]. Lord Chelmsford[3] makes the following observations: - "Parol evidence is generally admissible to apply the words used in a deed, and to identify the property comprised within it. You cannot, indeed, show that the words were intended to include a particular piece of land, but you may prove facts from which you may collect the meaning of the words used, so as to include or exclude a portion of land where the words are capable of either construction." Lord Cranworth[4] says: - "Where, indeed, words have a clear definite meaning, no evidence can be admitted to explain or control them." As Lyle v. Richards[5] was cited in argument, the observations upon it in Dart, 7th ed., p. 1011, might also be considered. However, I offer no opinion on those points, and rest my judgment in the present instance on the point which is fundamental, namely, the burden of proof.

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Mount Bischoff Tin Mining Company Registered v Mount Bischoff Extended Tin Mining Company [1913] HCA 6; (1913) 15 CLR 549 (20 February 1913)

Parties

Legislation Cited (1)

Cases Cited (1)