Real property - Doctrine of lost modern grant - Right of way - Lost modern grant established - Question whether Crown land falls within doctrine of lost modern grant - Whether right of way was abandoned - Declaration and injunction granted - Injunction suspended

Limitation of action - Land - Claim not statute barred

Evidence Act 1906, s 79C(1), s 79C(2)(g), s 79D

Limitation Act, s 3, s 36, s38(1)(c)(vi)

Attorney-General v Horner (No 2) [1913] 2 Ch 140

Attorney-General v Simpson [1901] 2 Ch 671

Bass v Gregory (1890) 25 QB D 481

Bray v Stuart A West & Co (1989) 139 New LJ 753

Boulter v Jochheim (1921) 21 VLR 192

Cargill v Gotts [1980] 1 WLR 521

Heginbotham v Cairns [1885] VicLawRp 108; (1885) 11 VLR 555

Hough v Taylor (1927) 29 WALR 97

Johns v Delaney [1890] VicLawRp 152; (1890) 16 VLR 729

Nelson v Hughes [1947] VicLawRp 30; [1947] VLR 227

Marriott [1968] VicRp 31; [1968] VR 260

Oakley v Boston [1976] QB 270

Palmer v Guadagni [1906] 2 Ch 494

Phillips v Halliday [1891] AC 228

Pullen v Gutheridge Haskins & Darcy Pty Ltd [1993] 1 VLR 27

Re HA Grey [1892] 2 QB 440

Stevens & Evans v Allan & Armansco (1955) 58 WALR 1

Staughton v Brown [1875] VicLawRp 85; (1875) 1 VLR (L) 150

Webster v Lampart [1993] HCA 57; (1993) 177 CLR 598

White v McLean (1890) 24 SALR 97

1 In this action, the plaintiffs claim a declaration that a right of carriage way exists over a parcel of land in Fremantle owned by the second defendant. There is also a claim for an injunction to prevent the obstruction of the right of way, and a claim for damages. The right of way is said to have come into existence by operation of the doctrine of lost modern grant.

2 The first and second defendants deny that any such right of way exists. In their defence they contend that if it did exist, it was blocked from 1 February 1978 until 9 July 1986, the date on which the action was commenced. The defendants contend that the plaintiffs' predecessor in title, the then owner of the dominant land, must be taken to have acquiesced in the closure of the access and abandoned any claim to it. I shall refer to the dominant land as "western Lot 808", the name adopted by the parties.

3 Although there are nominally two plaintiffs, they are the same person, suing in different capacities. That person is Mrs Rayma Edith Pekel. She and her sister Ms Jan Miriam Adams are the proprietors of western Lot 808, having been registered on 13 September 1996 as tenants-in-common in equal shares.

4 Ms Adams is a person under a disability. She is the subject of an Order made by the Guardianship and Administration Board of Western Australia on 4 March 1998 appointing Mrs Pekel to be the administrator of her estate. Thus, Mrs Pekel is a plaintiff in her own right and as her sister's administrator.

5 Mrs Pekel is the niece of the late Edward Firth Eagles, who died on 12 March 1985, apparently in old age. Mr Eagles was the registered proprietor of western Lot 808 from 1942 until his death. The administratrix of his estate was his sister, Mrs Emily Dorothea Adams, the mother of Jan Miriam Adams and Mrs Pekel. Mrs Adams commenced this action in her capacity as administratrix. She died on 14 July 1993.

6 On 23 September 1998, Mrs Pekel was substituted as the plaintiff in each of the capacities to which I have referred above.

7 The first defendants are Mr Ivan Humich and his wife, Kathleen Jessica Humich. The second defendant, Humich Nominees Pty Ltd is their company. The third defendant is the Registrar of Titles. He has played no part in the proceedings.

8 Humich Nominees is the registered proprietor of the servient land, to which I shall refer as Lot 500. It was formed by the amalgamation of Fremantle Town Lots 819 and 820. Lot 500 has now been subdivided. A strata title development of residential units or town houses has been constructed on Lot 501, which forms part of the subdivision.

9 Mr and Mrs Humich are the registered proprietors of the land to the south of western Lot 808, where they reside. That is Fremantle Town Lot 809. They have lived in the house on Lot 809 since early 1983. The fact that Mr and Mrs Humich own Lot 809 appears to be the explanation for their being joined as defendants. It is not clear to me how any relief could be granted against them personally.

10 Although not directly relevant to any issue in the action, it is the fact that Mr Humich is a real estate agent. He has been involved in the property market in Fremantle since 1970, when he was a salesman. Mr Humich's opinions on certain matters have been of assistance to me in resolving this dispute.

Western Lot 808, Lot 500 and the surrounding land

11 It will be convenient to describe western Lot 808 and its relationship to Lot 500 by reference to a diagram annexed to these reasons. It will thus be seen that western Lot 808 is approximately one-half of the area of the original Fremantle Town Lot 808.

12 The plaintiff claims a right of way over a strip of land approximately three metres wide which lies along the eastern boundary of Lot 500. It is showed hatched on the diagram. That is, in effect, an extension of a strip of land of the same width to the west of western Lot 808, which was incorporated with it in 1932.

13 The claimed right of way therefore provides an access from western Lot 808 to the northern end of Bellevue Terrace, which is a cul-de-sac. It will be convenient to refer to the access as "the Bellevue access".

14 The diagram shows also a strip of land running in an east-west direction from Hampton Road to the western boundary of Lot 809. This strip, which was excised from Lot 820, was in the ownership of the Crown from 2 March 1897 until 9 August 1960, when it was re-incorporated into Lot 820. I shall refer to it as "the Crown land".

15 The diagram shows also Lot 1 and 2 of Fremantle Town Lot 824. These are now, respectively, Nos 7 and 9 Knutsford Street. Their southern boundaries lie along part of the northern boundary of western Lot 808.

The devolution of western Lot 808, Lot 500 and the surrounding land

16 My findings of fact in relation to these matters are based principally on searches produced by Mr Cecil Thomas Bogg, a witness called by the plaintiff.

17 Mr Bogg was employed by the Land Titles Office from 1949 until his retirement in 1987, when he was the Senior Assistant Registrar and Manager of Registration.

18 It was accepted by counsel for the plaintiff that the titles were self-explanatory and could be the subject of submissions. However, counsel submitted that it would save a considerable amount of time if Mr Bogg was permitted to explain and interpret the titles. Counsel submitted that in so doing, Mr Bogg would not be giving expert evidence in the strict sense because he would not be expressing opinions about the facts disclosed by the title searches.

19 Although I permitted Mr Bogg to give evidence on the basis that his role would be that of an interpreter of the documents, it soon became apparent that Mr Bogg is an expert in his field. He did express some opinions, both in cross-examination and in answer to questions which I put to him. However, his evidence was of assistance in identifying the relevant parts of the various titles to which he referred.

21 Western Lot 808, which has an area of 1315 sq metres, was part of the original Lot 808, of approximately double that size, which had its eastern boundary on what is now Solomon Street, Fremantle, but which was known as Mary Street until 31 October 1952.

22 The whole of Lot 808 was acquired by Fred Instone on 30 September 1918. He subdivided the block on 29 January 1920 when the eastern moiety was transferred to Frances Helen Rennie.

23 Eastern and western Lots 808 have not been in common ownership since 29 January 1920.

24 There is no evidence as to the way in which Mr Instone gained access to western Lot 808 following the subdivision. However, at that time, the land which is known as 9 Knutsford Street was owned by one Evelyn Mary Instone.

25 Evelyn Instone died on 4 May 1927: and on 3 June, the West Australian Trustee Executor and Agency Company was granted letters of administration with the will annexed of her estate. On 20 August 1927, the land was transferred to Fred Instone.

26 I draw from these facts the inference that Fred Instone was Evelyn Instone's son, nephew or brother, and that he acquired 9 Knutsford Street under her will.

27 As appears from recent photographs of 9 Knutsford Street, it shares a driveway with 7 Knutsford Street, the adjacent property. The driveway is bounded by the flank walls of the respective houses.

28 Based on the appearance of Nos 7 and 9 Knutsford Street, and the opinion of Mr Humich, I find that both of these houses were built in the late 1890's, or early 1900's.

29 I find that it has always been physically possible to gain access to western Lot 808 from the common driveway between Nos 7 and 9 Knutsford Street. In this respect, I accept Mr Humich's evidence that he has seen vehicles on western Lot 808 after the Bellevue access was closed.

30 It is common ground that until 1986, when it was destroyed by fire, a weatherboard and iron house stood in the south-western region of western Lot 808, facing west. Again, based on Mr Humich's opinion, I find that this house was constructed well before Lot 808 was subdivided in 1920.

31 On 21 December 1932, a strip of land approximately 3 metres wide was excised from Lot 2 of Fremantle Town Lot 821 and incorporated into western Lot 808. I draw the inference that this land was acquired by Mr Instone for the purpose of gaining access to western Lot 808: and in particular to the house, which was directly to the east of it. I can see no other explanation for the acquisition.

32 Western Lot 808 was transferred to Mr Edward Firth Eagles on 9 June 1942.

33 No 9 Knutsford Street was transferred to Mr Eagles on 5 October 1973. I accept Mrs Pekel's evidence that Mr Eagles acquired the property as an investment and that it has been let to tenants since that date.

34 There is no evidence about the terms on which 9 Knutsford Street has been, or is now let. In particular, there is no evidence about any reservation of rights of access to western Lot 808.

35 Lot 500 was formed by the amalgamation of Lots 819 and 820.

36 The northern Lot 820 (from which the Crown land was excised in 1897) was owned by John Bateman from 22 July 1892 until his death on 4 May 1909.

37 Mr Bateman's executors were registered as the proprietors on 26 May 1909. They subdivided Lot 820 into northern and southern parts, which were transferred to the West Australian Trustee Executor and Agency Company Ltd on 16 October 1930.

38 On 18 August 1933, the northern portion was transferred to James William McKenzie. It was he who re-acquired the Crown land on 9 August 1960. Also on 18 August 1933, the southern portion was transferred to Stefano Taranto. Both portions were transferred to Hampton Court Pty Ltd on 30 June 1969.

39 Lot 819 is not directly relevant to this action because it is not contiguous with western Lot 808 or the Bellevue access. Hampton Court Pty Ltd transferred Lots 819 and 820 to the second defendant on 1 February 1987.

40 The doctrine of lost modern grant is one of the last remaining legal fictions. Although it is a creation of the English common law, it is applicable in Western Australia: Gangemi v Watson (1994) 11 WAR 505, 516.

"...when the Court finds an open and uninterrupted enjoyment of property for a long period unexplained, omnia praesumuntur rite esse acta, and the Court will, if reasonably possible, find a lawful origin for the right in question": Attorney General v Simpson [1901] 2 Ch 671, 698 per Farwell J.

This citation is taken from the judgment of Powell J in Hamilton v Joyce [1984] 3 NSWLR 279, 287-8 where the authorities are reviewed.

"all acts are presumed to have been done rightly and regularly".

43 In English law, it was presumed from the fact of long, open and uninterrupted user as of right, that the right was derived from a grant made on some date since the year 1189 but which had since been lost. Hence the fiction. The doctrine as applied in Australia has a somewhat different legal basis. The High Court said of it in Delohery v Permanent Trustee Co of NSW [1904] HCA 10; (1904) 1 CLR 283, 313-4:

"The foundation of the plaintiff's right being a grant or agreement on the part of the owner of the adjoining land, using those terms in the sense, not of an actual document which has been lost, but in the sense of a contractual obligation which is implied by law from proved or admitted facts...."

The requirements which must be satisfied for the doctrine of lost modern grant to apply have been stated in slightly different terms in different places. I take the law as I find it in the decision of the Full Court in Gangemi v Watson (supra), also a case concerning a disputed right of way. There Seaman J, with whom Ipp and Wallwork JJ agreed, referred with approval to passages from a number of authorities from which the following propositions may be extracted which are relevant to the present case.

1. In order to establish a right under the doctrine of lost modern grant, the plaintiff must prove continuous enjoyment of the claimed right for a period of at least 20 years.

2. Where the claimed right is discontinuous in its nature, such as a right of way, continuous enjoyment does not necessarily mean continuous use, but ...

3. ...there must be an assertion by the dominant owner of a continuous right.

4. The character, degree and frequency of the user must be such as to indicate to a reasonable person in possession of the servient tenement that a continuous right to enjoyment is being asserted.

5. Where long user of the claimed right of way is proved, there is a presumption that the servient owner knows of it.

6. That presumption can be rebutted by evidence that the servient owner did not have such knowledge.

7. The existence of a gate on the claimed right of way indicates the assertion of a continuous right of enjoyment of it.

Having regard to these propositions, and against the factual background drawn principally from the title searches, I turn to the other evidence.

44 Evidence of user was given by Mrs Pekel and her husband Mr Johannes Pekel. In addition, I admitted into evidence, pursuant to s 79C of the Evidence Act 1906, an affidavit sworn on 15 November 1988 by Mrs Adams, in answer to interrogatories administered by the defendants.

45 It was submitted by counsel for the defendants that very little weight should be given to Mrs Adams' affidavit, although the defendants themselves relied on some of the answers to interrogatories as supporting their case. I accept that Mrs Adams had an incentive to conceal or misrepresent the facts and that her evidence should be treated with caution. However, the evidence is not merely a statement: it is contained in sworn answers to interrogatories. The formality of the document, the circumstances of its execution and the serious consequences of committing perjury do, I think, give the evidence a degree of weight which it might not have otherwise. These are matters which I take into account pursuant to s 79D of the Evidence Act.

46 Mrs Adams deposed to the fact that the Bellevue access was in existence when Mr Eagles acquired western Lot 808 in 1942 and was "a formed thoroughfare upon which motor vehicles could pass". She apparently used that expression because that was the way the question was put to her. It is not clear what the questioner had in mind in using the expression "a formed thoroughfare": nor what Mrs Adams meant when she answered it.

47 Mrs Pekel, who was born in 1959, said she recalled visiting western Lot 808 as a child, when she accompanied her mother. Her earliest recollection of this was at the age of about 8 to 10 years. She said they always went in a vehicle, and entered by the Bellevue access.

48 Mrs Pekel said she met Mr Pekel in 1977 and that they were married in 1981. Mr Pekel said he recalled two visits to western Lot 808, in 1982 and 1984; and that he went in a vehicle and entered by the Bellevue access.

49 He said that on the last occasion he went in company with Mrs Pekel and Mrs Adams, and that they drove on to western Lot 808 in his car, a small four-wheel drive vehicle.

50 For reasons to which I shall refer below, I do not accept that the Bellevue access was open after about mid-1980. However, I accept the balance of Mr and Mrs Pekel's evidence: and I accept Mrs Adams' evidence.

51 I find that from 1942 until 1978, the Bellevue access was constituted by a track suitable for use by motor vehicles.

52 In order to make a finding about the character of the access after 1978, I have regard to the evidence of Mr Humich about earthworks carried out on Lot 500.

53 I accept Mr Humich's evidence that as a condition of approval of the subdivision, the Metropolitan Water Board (as it then was) required Lot 500 to be terraced from east to west, and a substantial retaining wall to be erected. This requirement was communicated to Mr Humich in a drawing dated 18 January 1978.

54 It was Mr Humich's evidence that the terracing was effected by cutting soil from the highest part of Lot 500, adjacent to Bellevue Terrace, and shifting it, with additional fill, to a lower part. The lot had a natural slope downwards from east to west. He said that a D9 bulldozer was used to scrape away the surface in the area in and around the Bellevue access, and that this resulted in a step of about 400 millimetres from Lot 500 up to western Lot 808.

55 Mr Humich said that the work was carried out in 1978, when a substantial retaining wall was built across Lot 500 and a low brick retaining wall was built at the boundary with western Lot 808. He said also that a corrugated fibre fence was erected along the northern boundary of Lot 500 above the low retaining wall, thus blocking the access to western Lot 808.

56 It was a further condition for subdivisional approval that a trapezium shaped portion of Lot 500 be excised from its eastern side and ceded to the Crown so as to enlarge the northern section of Bellevue Terrace and form a turning area. This is shown on the diagram.

57 I accept that this work and the earthworks were carried out in 1978. I make that finding because the titles for the four lots comprising the subdivision were issued on 11 August 1978. I infer that they would not have been issued until the works had been completed.

58 However, I do not accept that the small retaining wall between Lot 500 and western Lot 808 was constructed in 1978: nor was the corrugated fence then erected.

59 I make that finding for this reason: Mr Pekel said that when he last visited western Lot 808 (in 1984, as he thought) he and Mrs Pekel met Mrs Adams in Bellevue Terrace, where she parked her car. When asked in cross-examination to draw a sketch on the whiteboard to indicate where Mrs Adams had parked, Mr Pekel unhesitatingly drew Bellevue Terrace in its current configuration: that is, incorporating the excised portion of Lot 500.

60 Mr Pekel said in his evidence-in-chief that the Bellevue access was "quite uneven and rough". I accept that evidence. Mr Pekel said also, and I accept, that he recalled driving over the kerb which had been installed at the northern end of Bellevue Terrace as part of the subdivisional scheme.

61 I find that Mr Pekel drove on to western Lot 808 along the Bellevue access at some time after about August 1978, but before the units closest to western Lot 808 had been constructed. I accept Mr Humich's evidence (to which I shall refer in more detail below) that the construction of the units took place progressively during 1980. I find that the surface of the Bellevue access was then uneven and rough because it had been stripped by a bulldozer carrying out the cutting and filling operation referred to above. This had created a slope between Lot 500 and western Lot 808, but no terrace had then been formed by the construction of the retaining wall. That, I find, was not built until about mid-1980.

62 Taking all these factors into account, I am satisfied, and find as a fact, that the last visit to which Mr and Mrs Pekel referred took place no later than mid-1980. I therefore conclude that Mr and Mrs Pekel are mistaken in their recollection that they used the Bellevue access in 1982 and 1984. Indeed, Mrs Pekel's recollection of the later visit was apparently prompted by Mr Pekel, as she accepted in cross-examination.

63 Although the circumstances as I have found them are consistent with the visit taking place at any time between mid-1978 and mid-1980, I favour the latter because Mr Pekel said that he and Mrs Pekel were married at the time. I do not accept that they were married, because their evidence was that they were married in 1981. However, I infer that the visit was made closer to 1981 than to 1978.

64 The evidence of each of Mrs Adams and Mr and Mrs Pekel is that double hung cyclone gates were in place at the northern end of the Bellevue access, at the entrance to western Lot 808. I accept Mrs Pekel's evidence that one of the gate posts may be seen in a photograph she took in August 1998.

65 Mr Humich said he could not recall seeing the gates: and Mrs Humich gave no evidence on this point.

66 I accept the evidence of Mr and Mrs Pekel that the gates were in place when they made their last visit. Given that the southern extremity of the strip of land incorporated into western Lot 808 was a point of access from December 1932, it is to be expected that gates would have been erected there.

67 I accept that the gates were "old", in 1980. I therefore accept Mrs Adams' evidence that the gates were in place in 1942, when Mr Eagles acquired western Lot 808.

1. From 1942 until about mid-1978, the Bellevue access consisted of a track along which pedestrians and motor vehicles could pass from Bellevue Terrace to western Lot 808.

2. In about mid-1978 the top surface of the track was stripped off, but access was still possible on foot and by motor vehicles.

3. From 1942 until mid-1980, double hung cyclone gates were in place at the northern end of the Bellevue access, at the entrance to western Lot 808.

69 Mrs Adams said in her affidavit that Mr Eagles resided in western Lot 808 for several months each year from 1942 until about 1980, and that she had seen "numerous visitors" use the Bellevue access on "numerous dates" in the 20 years prior to the commencement of the action.

70 Mrs Pekel's evidence was that she and her mother lived at 9 Lord Street, Bassendean and that Mr Eagles lived next door to them at No 7. She said that Mr Eagles used the house on western Lot 808 for holidays, and that he spent about 30 per cent of each year there, although not at any particular times.

71 Mrs Pekel said she remembered visiting Mr Eagles at western Lot 808 from the time she was about 8-10 years old, until about 1980, when he became quite ill. She said she left home in 1977, but still visited after that date, in company with her mother. She said the visits were social: that her mother used to take food, clothing, mail and personal items to Mr Eagles.

72 I accept Mrs Pekel's evidence about the nature of the use of western Lot 808 by Mr Eagles. It demonstrates a regular pattern of user of the house on western Lot 808 from about 1967. It is consistent with the statement in Mrs Adams' affidavit, which I accept also.

73 However, I do not accept that Mr Eagles resided at the house on western Lot 808 as late as 1980. I am satisfied that it had fallen into disrepair by then and was unoccupied. I make that finding because I accept the evidence of Mr and Mrs Pekel that when they made their visit which they put at 1984, but which I have found to be no later than mid-1980, they did so at Mrs Adams' request, to effect repairs to the house.

74 Mr Pekel said that windows had been broken and that he boarded them up. He said the house had not been occupied for some time and he could see no point in trying to repair it.

75 This evidence is consistent with that given by Mr and Mrs Humich. Although they did not go inside the house, their observation from about 1980 was that it was derelict, that it was unfit for habitation and was not lived in at any time thereafter.

76 In my view, the question whether or not the house was habitable is irrelevant to the issues which I have to decide. What might have been an acceptable standard for Mr Eagles to use as a holiday home might well be quite different from the standards required by Mr and Mrs Humich. I note from Mr Pekel's evidence that Mr Eagles lived for a time in a shed or sleepout at the rear of Mrs Adams' house in Bassendean.

77 For similar reasons I ruled as inadmissible a copy of a notice said to have been prepared by the City of Fremantle in May 1972 in which it was said that the house at the rear of No 5 Solomon Street, owned by one E F Eagles, was unfit for human habitation and was unoccupied.

78 Assuming that the notice related to the house on western Lot 808 (there being no No 5 Solomon Street, according to Mr Humich) the notice would not have proved non-user by Mr Eagles from that date.

79 I accept Mrs Pekel's evidence that it was Mr Eagles' practice to use the house for holiday purposes at least until 1977, the year in which she left home. I accept Mrs Adams' evidence that this user commenced in 1942.

80 Mrs Pekel was not able to say when Mr Eagles stopped visiting western Lot 808. However, she said that after she had left home she accompanied her mother, Mrs Adams, on visits to the property, at least once per year. The purpose of the visits was to check on western Lot 808, or on the activities of the tenants of 9 Knutsford Street. She said her mother did not wish to go alone.

81 I accept this evidence, from which I draw the inference that since Mr Eagles was not a party to these visits, he had ceased using the house on western Lot 808 by 1977.

82 I accept also the evidence of Mr and Mrs Humich that on occasions during the early 1980s (and probably after 1982) they saw an elderly man, who identified himself as Mr Eagles to Mr Humich, cutting the grass on western Lot 808 so as to form a firebreak. He did so about twice each year.

83 Taking all the evidence into account, I find that from 1942 until about 1977 the Bellevue access was used regularly, albeit intermittently, by Mr Eagles and persons visiting him, to gain access to western Lot 808 by vehicle and on foot.

84 I find that from 1977 until his death in 1985, Mr Eagles did not reside in the house.

85 I find that the Bellevue access was used from 1977 until 1980 by Mrs Adams and Mrs Pekel, on Mr Eagles' behalf, for the purpose of making inspections of the property and of No 9 Knutsford Street.

86 I draw the inference from the fact that Mr Eagles was cutting firebreaks on Western Lot 808 in the early 1980s, that he did so also from 1977: and that he used the Bellevue access for that purpose until it was closed.

87 The Crown land is significant for two reasons. First, the defendants say that as a matter of fact, it was available as an access to western Lot 808 from Hampton Road, and that an inference arises that it was so used.

88 Secondly, the defendants say that as a matter of law, if Mr Eagles did use the Bellevue access, time could not have started to run in his favour for the purposes of lost modern grant, until 9 August 1960. That was the date on which the Crown land reverted to private ownership. The point here is that the first 3 metres of the Bellevue access, leading from the date on western Lot 808, was Crown land.

89 In relation to the factual issue, the evidence relied on principally by the defendants is a plan described as being "part of the Fremantle Municipality" bearing the date December 1967 and a notation that it was drawn at the Taxation Department of Western Australia. It is what is known popularly as a Tax Map.

90 There is no evidence as to when or by whom the Tax Map was drawn. Mr Bogg was emphatic in his evidence, which I accept, that it was not drawn within the Land Titles Office.

91 The significance of the Tax Map is that it shows the Crown land marked with the letters "R. O. W.", which I take to mean "right of way".

92 However, that right of way is not shown as leading to western Lot 808. The Tax Map does not show the strip of land which was excised from Lot 821 and added to western Lot 808 in 1932. Further, it shows Knutsford Street, Hampton Road and Solomon Street as having their pre-1953 names.

93 Although the grant of the Crown land in 1897 says nothing about the reason for which it was acquired, there is an inference that it was for laying water pipes. This inference arises from the fact that on 5 March 1897 (three days after the Crown land was excised from Lot 820) the owner of Lot 809 granted to the Crown "a right of carriageway over, and the right to lay water pipes in" a strip of land along the northern boundary of Lot 809. This strip is a continuation of the Crown land. The Crown therefore had an access from what is now Hampton Road to what is now Solomon Street. However, it was not a public right of way.

94 The only support for the view that the Crown land was used as an access from Hampton Road lies in the evidence of Mrs Pekel that there was once a gate on the western boundary of Lot 809, at the north-western corner, facing the Crown land. I accept that evidence. It is consistent with the Crown having a right of access from the Crown land to Lot 809.

95 For completeness, I should also mention that the Tax Map also shows a northern extension of Bellevue Terrace marked as "R.O.C.W", which I take to mean "right of carriageway". Although the map is not entirely clear, this appears to extend as far as the southern boundary of the original Lot 809.

96 In their defence (par 8(b)(ii)) the defendants make the positive allegation that before 1960, Mr Eagles "obtained intermittent access" to western Lot 808 by the Crown land. That allegation having been made, the defendants have the onus of proving it, on the balance of probabilities.

97 There is no evidence of actual user. There is no evidence that the Crown land was ever fenced separately from Lot 820. Mrs Adams was asked in the interrogatories whether Mr Eagles, his servants or agents obtained intermittent access to western Lot 808 over the Crown land from 1960 to 1985: she answered "No". That answer may well involve hearsay. But even if it was untrue, it would not amount to evidence of user. In any event, user of the Crown land to gain access to western Lot 808 on an intermittent basis would not preclude the acquisition of a right over the Bellevue access.

98 Mrs Pekel also said that the Crown land was not used to gain access to western Lot 808. However, her evidence carries very little weight, because the Crown land reverted to private ownership when she was about one year old.

99 It was submitted by counsel for the defendants that the existence of the gates at the northern end of the Bellevue access was consistent with the use of the Crown land as an access. That submission would carry more weight if there was some evidence that the Crown land was actually used. But as I have said, there is not. Further, it seems to me unlikely that it would have been suitable because of the difficulty of making a 90 degree turn in a motor vehicle into or out of a three metre wide lane. It would have been much easier, when leaving western Lot 808 by the gates, to drive straight on to Bellevue Terrace.

100 Further, if there was a carriageway between Solomon Street and Hampton Road, it would not have been necessary for Fred Instone to acquire the small strip of land which was added to the western end of western Lot 808 in 1932. He could have entered the carriageway anywhere along the southern boundary of western Lot 808.

101 In all the circumstances, I am not persuaded that the defendants have proved, on the balance of probabilities, that Mr Eagles ever used the Crown land as a means of access to western Lot 808.

102 I turn to the question of law: whether an easement may be obtained against the Crown under the doctrine of last modern grant?

103 The defendants rely on Thwaites v Brahe (1895) 21 VLR 193 as authority for the proposition that no such right can arise. In that case, Crown land was granted to the plaintiffs as trustees for the purpose of erecting a school thereon. The defendants owned a neighbouring building which had enjoyed light and air from the plaintiffs' land for over 20 years. They claimed a prescriptive right to an easement of light and air.

104 The trial Judge referred the question of law to the Full Court, where Madden CJ, giving the judgment of the Court, held that because the plaintiffs' powers as trustees were limited by their grant, they could not have made the lost modern grant relied on by the defendants as the basis for the claimed easement.

105 In what I consider to be an obiter dictum, Madden CJ held also (at 201) that:

"...as time does not run against the Crown, this presumption of a lost grant could not be made against the Crown. The case of Wheaton v Maple [1893] 3 Ch 48 is authority for that".

In fact, Wheaton v Maple (supra) is not authority for that proposition, although the headnote suggests that it is. The case was concerned with a claim by the plaintiff to have acquired a right of light against the defendants, who were lessees of Crown land. At first instance, Kekewich J held (at 56):

"No doubt there can be presumption of a lost grant against the Crown; that is established by many cases, and especially, I think, by the case of Goodman v Mayor of Saltash" [(1881-82) 7 App Cas 640]

"A grant from the Crown, as distinguished from its tenant, cannot be presumed, for there has been no enjoyment against the Crown itself; and without it there is no foundation for such a presumption."

Lindley LJ therefore held, on the facts, that no grant could be presumed. He did not say that as a matter of law, there could be no such grant.

107 A L Smith LJ agreed with Kekewich J (and, by inference with Lindley LJ) that on the facts, the plaintiff could not maintain an action founded on assumed lost grant (69).

"For convenience sake the fiction of a lost grant is very often pressed into the service; but to presume a lost grant made by the Crown, or the lessees of the Crown, since 1852 and lost, would be overtaxing the credulity of the most credulous, and would be making a demand too extravagant even for the elasticity of this patient and accommodating fiction."

109 In short, Lopes LJ also decided on the facts that the fiction would not stand scrutiny because he could not believe that the Crown would have made a grant after 1852 which had been lost by 1893. However, in this respect Lopes LJ was not, I think, expressing the orthodox view, which is now settled, that the presumption of a grant which is derived from long user cannot be rebutted by showing that the grant was not, in fact, made: Thwaites v Brahe (supra) at 198; Oakley v Boston [1976] QB 270.

110 Wheaton v Maple (supra) does not decide, therefore, that the doctrine of lost modern grant cannot operate in respect of Crown land. As I have noted, Kekewich J referred to an authority to the contrary: and several others are cited in Gale on Easements, 16th ed, par 4-14. These include General Estates Co v Beaver [1914] 3 KB 918, where Lord Reading CJ said (at 926) in a case involving an assertion of a lost modern grant against the Crown, that "every reasonable presumption ought to be made to support long-continued user as of right, consistent with legal title".

111 The proposition that "time does not run against the Crown" is true in relation to land, as defined in s 3 of the Limitation Act 1935: see s 36. However, the definition of "land" for the purposes of that Act:

"...includes messages and all corporeal hereditaments whatsoever...."

112 This definition does not include easements, which, being a species of intangible property, are incorporeal hereditaments: see Halsbury's Laws of England, 4th ed, Vol 14 par 14.

113 In these circumstances, I see no significance in the fact that from 1932 until 1960, the northern-most 3 metre strip of the Bellevue access was vested in the Crown. That fact did not prevent the acquisition of an easement under the doctrine of lost modern grant.

114 In my view, the nature and extent of the user of the Bellevue access, (which I find to have existed) together with the existence of the double gates, amounted to an assertion by Mr Eagles of a continuous right of enjoyment from 1942 until about 1980 and gives rise to a presumption that grants were made by the Crown, and by the then owners of Lot 820 which grant has since been lost.

115 No evidence has been adduced by the defendants to rebut the presumption that their predecessors in title knew about the assertion or exercise of that right. I therefore find that the claimed right of way had been in existence for at least 36 years when the defendants acquired Lots 819 and 820 in 1978.

116 For the avoidance of doubt, I should add that if I am wrong in my view that the doctrine of lost modern grant may be applied to Crown land, the plaintiff's claim must fail. That is because time would not then have started to run until 9 August 1960, when the Crown land reverted to private ownership.

117 The onus would then fall on the plaintiff to prove user of the Bellevue access for a period of 20 years: that is, until 9 August 1980. But the plaintiff has not discharged this onus. For the reasons set out above, I have found only that the last visit before the access was blocked took place on some indeterminate date between mid-1978 and mid-1980. I favour the latter: but I am not persuaded, on the balance of probabilities that the visit was after 9 August 1980.

118 The plaintiff would have a further difficulty. The evidence of Mr Humich, which I accept, is that when Humich Nominees purchased Lots 819 and 820 in 1978, the houses which stood on those properties were let to tenants. That being so, it would, I think, be necessary for the plaintiff to establish that the freehold owner of Lot 820 knew of Mr Eagles' user while the property was let: see Piromabi v Di Masi [1980] WAR 173, 176, per Burt CJ. An inference of knowledge might be drawn if the servient owner who let the property had been in possession previously. But from 1969 to 1978, Lots 820 and 819 were owned by Hampton Court Pty Ltd, and not a natural person. That being so, it seems likely that the properties were let during that period. There is no evidence about any of these matters.

119 The defendants contend that Mr Eagles knew about the erection of the fences which blocked the Bellevue access: that he made no complaint and must therefore be taken to have acquiesced in the obstruction of the access and abandoned its use. It follows from my finding that Mr Eagles visited western Lot 808 after 1980, that he must have known that the Bellevue access was obstructed by fences.

120 I make that finding because I accept Mr Humich's evidence that Western Lot 808 is higher than Lot 500, and that the fences are clearly visible from it. That is clear also from the photographs taken by Mrs Pekel.

121 There is no direct evidence about any complaint made by Mr Eagles. This was a matter about which Mrs Adams was interrogated. She said in her affidavit that Mr Eagles had complained to the Fremantle City Council "in or about 1981" but that the complaint was not in writing.

122 An officer of the Fremantle City Council produced documents to the court, pursuant to a subpoena duces tecum. However, it was not suggested by counsel for the plaintiff that the documents contained any reference to Mr Eagles' complaint. I expect that if Mr Eagles had complained informally, he would have been told that it was a matter he should take up with the owners of Lot 500. It seems that he did not do so.

123 In these circumstances, I place no weight on Mrs Adams' evidence about the complaint: nor on the complaint itself, if it was in fact made.

124 Although there is no direct evidence about Mr Eagles' means of access to Western Lot 808 after the fences had been constructed, I draw the inference that it was from the common driveway of 7/9 Knutsford Street.

125 It was submitted by counsel for the defendants that it was relevant to take into account the fact that Mr Eagles had this access available to him. Counsel relied on the statement by Anderson J in McIntyre v Porter [1983] VicRp 104; [1983] 2 VR 439, 446, that Ward v Ward [1852] EngR 654; (1852) 7 Exch 838:

"...does not lay down any principle that the use of an alternative means of access to the dominant tenement is necessarily irrelevant to the question whether non-user may amount to an abandonment of a right of way."

126 I accept that submission: each case must depend on its own facts. However, it seems to me that use of an alternative means of access is more strongly suggestive of abandonment when it is used voluntarily, than when it is forced on the dominant owner by closure of the principal access.

127 I accept that it is possible to draw an inference of abandonment from the facts as I have found them. However, I consider that there is a stronger inference to the contrary.

128 The picture painted of Mr Eagles by Mrs Pekel was of a man who had accumulated real property, and was careful with it. The right of way which he had acquired over the Bellevue access was valuable, as must have been obvious to him. The common driveway between 7 and 9 Knutsford Street, although providing a means of vehicular access to western Lot 808, could not be used to support any major activity or development of that lot without the consent of the owner of No 7.

129 However, by 1980, when the Bellevue access was blocked, Mr Eagles had not used the house on western Lot 808 for some years. I accept Mrs Pekel's evidence that he was in poor and declining health. I infer that he had no further use for the house. His only access requirement was such as to enable him, occasionally, to enter on to Western Lot 808 with a lawnmower, to attend to the firebreak.

130 Mr Eagles must be taken to have known that after his death, western Lot 808 would devolve on members of his family who might make greater use of it than he.

131 That is a factor which makes it appropriate to refer to the summary of the judgment of Buckley LJ in Gotobed v Pridmore (1970) 115 Sol Jo 78, in the English Court of Appeal:

"Mere abstinence from the use of an easement such as a right of way was insufficient to establish such an intention. To establish abandonment the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title should thereafter make use of the easement...." (My emphasis).

132 There is a further factor. I admitted into evidence pursuant to s 79C of the Evidence Act a letter dated 12 March 1985, written by the late Dr R K Constable, a medical practitioner, who said he had known Mr Eagles for "several years". Dr Constable said that Mr Eagles:

"...has always suffered from some instability in his outlook on life, and has not always been easy to manage. Over the recent twelve months. Over the recent twelve months his mental condition and his outlook on life has [sic] deteriorated as well as his physical condition...

I am firmly of the opinion that he has not been able to manage his own affairs for at least six months, and certainly in his recent break-down at the beginning of the year was very irrational and unable to comprehend anything but the simple [sic] of instructions."

This, I think, raises a question about Mr Eagles' ability, at least in his last years, to form the intention which the defendants say should be attributed to him.

133 In all the circumstances, I am not persuaded that Mr Eagles intended that the Bellevue access should be abandoned. I draw the inference that, being in failing health and having no further use for western Lot 808, he was content to use the access from 7/9 Knutsford Street which was sufficient for his immediate purposes, and to leave it to his successors to raise the issue after his death. That is, in fact what happened. Mrs Adams instructed solicitors to complain to the defendants on behalf of Mr Eagles estate. The solicitors wrote to the defendants on 14 January 1986. I therefore find that the right of way over the Bellevue access was in existence at the date of Mr Eagles' death on 12 March 1985.

134 Although the second defendant purchased Lots 819 and 820 free from encumbrances, and there is no reference to a right of way on the titles, the right is one expressly preserved by s 68 of the Transfer of Land Act 1893, being an "easement acquired by enjoyment or user ... affecting such land."

135 The plaintiff is entitled to pursue the claim arising from the obstruction of the right of way, because:

"...the owner of the dominant tenement may take advantage of the enjoyment of his predecessor, and ... the owner of the servient tenement is bound by the acquisition of those who have preceded him."

Auckran v Pakuranga Hunt Club (1905) 24 NZLR 235, 240-1.

136 The defendants contend that the cause of action did not accrue within six years of the commencement of the action, and that the claim is therefore statute barred.

137 An action for the obstruction of an easement lies in nuisance: see Halsbury's Laws of England, 14th ed par 132. That being so, the limitation period is six years from the date on which the cause of action arose: Limitation Act 1935, s 38(1)(c)(vi).

138 The cause of action arose on the day on which the first of the fences was erected which obstructed the Bellevue access. The onus is on the defendants to prove, on the balance of probabilities, that this was before 9 July 1980, the date six years before the writ was issued.

139 The defendants pleaded in par 4 of their defence that the Bellevue access "was blocked and obstructed as from the 1st day of February 1987....". That was the date on which the second defendant was registered as the proprietor of Lots 819 and 820. However, as I have noted above, the defendants do not in fact contend that the Bellevue access was blocked from then.

140 I have found that the obstruction occurred in mid-1980. The date is not critical for the purposes of the lost modern grant claim, because time ran from 1942. But it is, of course, critical in relation to the Limitation Act point.

141 I accept Mr Humich's evidence that he sub-contracted the work of constructing the units on Lot 501, and that he supervised their construction. However, with one exception, he produced no documentary evidence, nor called any witnesses to say when the works were completed or the fences erected.

142 The exception is the strata plan relating to the units on Lot 501. That contains the statutory certificate of the local authority, dated 8 December 1980, to the effect that the building shown on the plan has been inspected and that it is consistent with the approved building plans and specifications.

143 Those approved plans show asbestos fences at the rear of Units 16, 17 and 18, but they do not show such a fence across the end of the Bellevue access: nor do they show a retaining wall.

144 The strata plan contains also the certificate of a licensed surveyor, as required by s 5(6) of the Strata Titles Act 1966, which was then in force. Although the surveyor was not called, his certificate is admissible pursuant to s 79C(1) and (2)(g) of the Evidence Act 1906.

145 The certificate is dated 22 September 1980_._ It is in the following terms:

"I hereby certify that the building shown on the plan is within the external surface boundaries of the parcel."

The plan of which the certificate forms part shows the outline of the units on Lot 501 and the boundaries. It does not show any fences.

146 It is clear from the photographs showing the rear of Units 16, 17 and 18, that the corrugated fences could not have been erected until after the buildings were complete. The boundary fence is of a similar type, giving rise to the inference that it was erected at about the same time. This was not put to Mr Humich however.

147 Mr Humich gave conflicting evidence about the date on which the building works were completed. In his proof of evidence, which stood as his evidence-in-chief, he said that the construction of Bellevue Heights (as the development is called) took approximately 12 months and was completed in late 1979 or early 1980. He went on to say:

"My wife and I subsequently acquired units 1 and 2 ... and resided in the units on the Bellevue Terrace property (after moving from our then residence at 112C Solomon Street) from early 1980...."

148 The transfer of 112C Solomon Street out of the ownership of Mr and Mrs Humich was registered on 30 April 1980. I accept that they then moved to Units 1 and 2 in the Bellevue Terrace development. But clearly, they did so before the development was complete, as certified by the local authority in December 1980.

149 Mr Humich said, and I accept, that Units 1 and 2 were the first to be completed. These were built on what was formerly Lot 819. He said also, in cross-examination, that the work "would have been completed, I would say, several months before" the surveyor's certificate was issued on 22 September 1980.

150 In re-examination, Mr Humich confirmed that it was "reasonably correct" to say that the surveyor's certificate was issued as soon as possible after the completion of the units. He said that was "within two or three weeks of completion or thereabouts". However, a little later, when asked to say what was the state of the building prior to September 1980, he said:

"All the works, all the fencing, all the external works would have been completed much sooner than that ... I would say two or three months."

151 I had the impression from the way in which Mr Humich gave his evidence that he was reconstructing: that he had no true or accurate recollection. In any event, as I have noted above, the surveyor's certificate says nothing about the existence of fences.

152 In all the circumstances the defendants have not persuaded me, on the balance of probabilities, that the fences which obstructed the Bellevue access were erected before 9 July 1980. Indeed, given that Mr Humich was anxious to complete the development and register the strata plan, I think it more likely that the fences were erected after that date.

153 The only reliable evidence on this point is the local authority certificate dated 8 December 1980, from which it may be inferred that the fences had been erected by then.

154 I am not persuaded therefore, that the action was statute barred.

155 The plaintiff claims a declaration as to her entitlement to a right of way over the Bellevue access, damages, and an injunction to restrain the defendants from obstructing the access.

156 At the trial, Mrs Pekel attempted to adduce evidence of the diminution in value of western Lot 808 in the form of a market appraisal by a real estate agent. A proper objection having been taken to this evidence, I ruled that it was inadmissible. However, I said that if I though it appropriate to award damages, I would consider directing an enquiry.

157 In my view, damages would not be an adequate remedy in this case. the principle is to be found in the well-known passage in the judgment of Lindley LJ in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, 317:

"Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which the plaintiff has shewn that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to grant him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy - as where the acts complained of are already finished - an injunction can be properly refused."

158 Clearly, this is not a case a "trivial and occasional nuisance". It is not a case in which the plaintiff has shown that she only wants money: nor is the plaintiff's conduct vexatious or oppressive.

159 Further, I consider that damages would be an inadequate remedy in any event. Having regard to its location, I infer that western Lot 808 is a valuable piece of land, the development of which as a separate property, would be stifled without a proper access. Given that the common driveway between Nos 7 and 9 Knutsford Street could not be used to support a development, the only other option would appear to be to demolish, wholly or in part, No 9 Knutsford Street, either for the purpose of a development in common with western Lot 808, or to provide a proper access to it.

160 I was told by counsel for the plaintiff that the Fremantle City Council would not permit the demolition of the property because of its heritage value. That is not, of course, a matter of evidence. However, I would take judicial notice of the difficulties which are likely to exist in the demolition of a property constructed about the turn of the century in that area of Fremantle.

161 It follows that even if damages were awarded to compensate the plaintiff for the loss of value in the current market, the result is likely to be the continued sterilisation of western Lot 808.

162 There has, of course, been long delay in bringing the action to trial. However, no account can be taken of the delay in commencing the action within the limitation period: see Meagher, Gummow and Lehane, "Equity Doctrines and Remedies" 3rd ed, par 3609. This is on the basis that there has been no acquiescence within the period of limitation. However, I have found that there was no such acquiescence.

163 Then there has been a delay of 13 years in bringing the action to trial. There has been no evidence as to the reasons for such delay. I know only that the plaintiff's present solicitors were instructed some eight months ago. That being so, there appears to be no basis for complaint against the plaintiff in respect of the delay. But in relation to laches or acquiescence since the commencement of the action, only the conduct of the present plaintiff is relevant. The conduct of her predecessors in title cannot be taken into account. This is clear from the opinion of the Privy Council in Nwakobi v Nzekwu [1964] 1 WLR 1019, 1024:

"Laches involves essentially a personal disqualification on the part of a particular plaintiff: it cannot be treated as a sigma on the title to land which, once impressed, necessarily descends with the title and affects all succeeding owners."

164 In any event, what matters is not that there has been delay: only delay which is prejudicial to the defendants is relevant. The defendants claim that they would be prejudiced by the grant of an injunction because the sales of units 12 to 18 would be substantially inhibited by the loss of their backyards. Further, the grant of an injunction would prevent direct access to a proposed extension to the rear of unit 12 to accommodate Mr Humich's aged and disabled father. These are not, however, matters attributable to the delay in bringing the action to trial.

165 The defendants contend also that the plaintiff is estopped from seeking an injunction on the basis that Mr Eagles stood by and allowed the construction of the units to proceed. I do not accept that submission. I have held that Mr Eagles did not acquiesce in the obstruction of the Bellevue access. Even if he stood by and watched the units being built, he would not necessarily have known that the access was to be obstructed by the erection of fences. As I have said, those fences could not have been erected until the buildings were complete. Further, as appears from the approved plans of the development, the rear walls of units 17 and 18 do not encroach on the Bellevue access. The width of that access was 3 metres: the distance between the rear walls of Units 17 and 18 and the eastern boundary of Lot 501 is 4.85 metres.

166 In all the circumstances, it seems to me to be appropriate to make the declaration sought and to grant an injunction which will require the removal of so much of the fences and walls now obstructing the Bellevue access as to permit its restoration. This will also require some fill so as to remove the small terrace between the access and western Lot 808. I shall direct counsel to confer in relation to a suitable form of order.

167 However, I propose to suspend the grant of the injunction for an appropriate period. Again, I will hear from counsel in relation to this.

168 My purpose in suspending the injunction is two-fold. First, the parties will understand from these reasons that my conclusions are based as much on inferences drawn from the primary facts as on the resolution of questions of law. I accept also that there is considerable scope for argument as to the weight to be given to Mrs Adams' evidence. And without it, the claim must fail because there is no other evidence of user from 1942.

169 In making my conclusion, I have had regard to the proposition stated by Lord Brandon in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948, 955 - 956, that

"...the Judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which owing to the unsatisfactory nature of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take."

170 In the present case, the primary question has been, in effect, how Mr Eagles gained access to western Lot 808 from 1942 to about 1970, when there is evidence from Mrs Pekel, which I have accepted, that he used the Bellevue access.

171 The evidence satisfies me that having no other means of access from 1942 onwards, Mr Eagles used either the Bellevue access or the Crown land. As I have said, there is no evidence apart from the Tax map, which is of doubtful authenticity, that the Crown land was ever used for that purpose.

172 In accepting Mrs Adams' evidence that Mr Eagles used the Bellevue access, I am not making a finding on the less improbable of two improbable possibilities. I make my finding on the basis that, having regard to all the evidence, I am satisfied that it was more probable than not that Mr Eagles used the Bellevue access from 1942 onwards, and to a sufficient degree to assert a continuous right of enjoyment.

173 I appreciate, however, that this is a matter which the defendants may well wish to take this matter on appeal. In all the circumstances I think it would be wrong to grant an injunction which is effective immediately.

174 Secondly, although there has been no evidence on the subject, it occurs to me that there may well be planning considerations which need to be taken into account for the purpose of implementing my order. I think that the parties should be given an opportunity to investigate these matters before being required to undertake any remedial works.

175 If, for any legal reason, an injunction cannot be granted, it will be necessary for proper consideration to be given to the question of damages: whether the plaintiff is now precluded from claiming damages, whether there should be an enquiry and if so, what is the correct measure of damages. Prima facie, the correct measure would be the difference between the value of western Lot 808 with and without the Bellevue access. However, there might well be argument about that: or about the date on which the damages should be assessed.