Plaintiff v Defendant

Plaintiff v Defendant - [2007] VSC 529 - VSC 2007 case summary — Zoe

[15]

11 The fact that the disputed land is treed assumed significance in this case. As a treed block it stands out from the surrounding land constituting the Abbatangelo property. It also served as a natural place where livestock might seek shade and shelter. The circumstances in which the trees came to be planted on the disputed land was explained in the evidence of Mr Arthur Christian who was called on behalf of the Council. Mr Christian gave evidence that he resided at 850 Bridge Inn Road in Doreen, being some two or three kilometres from the Abbatangelo property and the disputed land. He had lived in Doreen all his life and his family has lived in the area since about the 1850s. Although elderly, he continues to be a farmer running an Angus stud, an activity, it seems, in which he has been engaged since he was about ten. His father (who died in 1950) informed him about the planting of the trees on the disputed land. Mr Christian believed, as I accept was the case, that the disputed land had been donated to the Council for the purpose of it being used as a shire office. That did not eventuate because the Council moved from Mernda to Epping and, it seems, decided to plant trees on the disputed land instead of the Shire offices. There then occurred what Mr Christian described as "an upset" in the district in which his father was involved. It seems that the local residents were so disappointed that the land would not be used as intended by the donor that they decided to remove the trees; however, they subsequently changed their mind, the trees remained but the Shire offices were never built on the disputed land. It is not entirely clear from his evidence, but it seems that the trees planted at that time were a mixture of poplar trees along the front boundary and gum trees throughout the block. In any event, these events must all have occurred prior to 1950 (that is, prior to the death of his father). If it matters, I would infer that the events occurred when Mr Christian was very young or before he was born. I would infer that from the fact that Mr Christian himself seemed to have little direct knowledge of the events and that he was a man now in his mid seventies.

[20]

14 Each of the witnesses called on behalf of Mrs Laurice Abbatangelo's claim were questioned closely about the livestock said to have been on the property. Counsel for the defendant questioned each of them closely about names of horses, the plausibility of the quantity of milk being produced from the cows said to have been present, the number of cows at any one time, the sustainability of the number of cattle on a property of some 5½ acres (including the disputed land), the apparent inconsistency between whether there was one or two goats present at any one time, and so on. In the end I am satisfied that the late Mr and Mrs Abbatangelo used their property as a small family farm as, indeed, might well have been expected of a property in what, in the late 1950s, was still clearly rural land. I am also satisfied that there may have been some lessening of their activity during the period in which they resided, and the children went to school, in Geelong, but that they continued to use the property throughout the whole of the time from at least 1960 to the present as a small family farm. In that activity the disputed land came to be treated as an integral part of the one composite land. I accept that the family livestock used the disputed land to graze and, perhaps more importantly, for shade, shelter and, at times, enclosure. Even the evidence of Mr Christian, called on behalf of the Council, was that he recalled seeing both cows and horses on, at least, the Abbatangelo property over the years. I accept the evidence of Mrs Laurice Abbatangelo that, at some point, she came to use the disputed land as if it were part of the integrated whole of the properties for the use, enjoyment and activities of the family there. It would, indeed, be very curious if a parcel of land so fully surrounded by the Abbatangelo property without active assertion of dominion by any other person over nearly 50 years would not naturally result in the occupants of the Abbatangelo property coming to use and regard the disputed land as part of what might generally be described as "their backyard", that is, as part of their land.

[31]

25 The absence of the fence along the eastern boundary of the disputed land may be used in support of the claim by Mrs Laurice Abbatangelo but, in my view, so too might its presence. I am not inclined to disbelieve the direct testimony of the members of the Abbatangelo family about the absence of the fence from some time in the mid 1980s in circumstances where its absence makes sense, is consistent with other evidence, and its presence would, on one view, not be fatal to Mrs Laurice Abbatangelo's claim whilst, on another view, could assist the claim if there had been a fence. In addition, it seems clear that the Council in 2004 thought that there was certainly no structure sufficient for a fence and, accordingly, took steps to build one. That they might have done so on a line with old remnants appearing as a fence in earlier aerial photos may be an explanation for the apparent inconsistency between the lay witnesses and the expert evidence but, in the circumstances, I am not disposed to disbelieve the lay witnesses on this matter. I should also add, if it were necessary for me to do so, that my visual inspection of aerial photographs taken in 1984 and 1987 (in particular) but also those taken in 1989, 1991, 1992, 1998 and 2000, lead me conclude that there was not a fence on the eastern boundary of the disputed land, or, if there was, that it was little more than some remnants of a fence. It is clear from the 1987 photograph that if there was a fence along that boundary, it was quite different from the one within the Abbatangelo property which started from the north-eastern corner of the disputed land: that fence (wholly within the Abbatangelo property) is clear and stands out in a visual inspection. The contrary evidence of the photogrammatrists is, at best, of the existence of some structure along the eastern boundary of the disputed land amounting to a fence. The evidence was not that the fence they could see through the stereoscope was anything like the others clearly visible to the naked eye on the other aerial photographs. The difference between the fence which Mr Watts said that he could detect through the stereoscope was quite different from that running from the north-east corner of the disputed land on the Abbatangelo property to their northern boundary. The fact that the fences are different does not assist the defendant because that too would show a treatment of the boundaries of the disputed land to suit the uses and conveniences of the plaintiff in disregard of others.

[36]

30 As against these facts, however, no request was made that the Council should pay for what might have been thought to have been its half share of that, or any other, fence and, it seems, that both sides of the post and rail fence on the western boundary of the disputed land was (at least on one manifestation of that fence) painted on both sides; that is, that it was painted both on the side facing the Abbatangelo house as well as the side facing the disputed land. The painting of that fence on both sides of the fence is, of course, a matter that may be thought to be insignificant. Largely it is. However, it gains significance when I am asked to infer from the presence and nature of the fence, as was contended, that this fence should be seen as a mark of distinction rather than a mark of inclusion. Counsel for the defendant submitted that this fence, placed on the dividing boundary between what was said to be "truly obviously their house block and the disputed land", marked the division between the Abbatangelo land and the disputed land by a very visible and effective barrier. The force of that contention is lessened to my mind by the fact that the same kind of fence was not seen in any other dividing boundary between the Abbatangelo property and any other property. It was put up by the Abbatangelo family at their cost without contribution from the Council and without its consent, permission or knowledge as owner. Its visibly different characteristics, in those circumstances, are consistent with aesthetic considerations of a fence being close to a home. Moreover, there is no reason why a fence of that kind should have been constructed as "a mark of distinction" because the disputed land itself, being distinctly treed, provided its own mark of distinction, if that was wanted. The evidence does not permit the inference to be drawn that the western boundary fence was intended, or was, a mark of distinction of the kind contended. That it was painted on both sides may not of itself be of much significance; although it might have been significant had the painting been only on one side.

[37]

31 The appearance of the disputed land was a factor specifically relied upon by the defendant in another respect. The defendant maintains that there was no substance in the allegation that "from the early 1960s the disputed land was to all appearances part of the plaintiff's title land" for various reasons which have to do with the physical appearance of the disputed land as compared with the physical appearance of the Abbatangelo property. The disputed land has a number of trees which over the years have become more dense in appearance although it is clear from a comparison of the 1960 aerial photograph and the 1998 aerial photograph that (as would be expected) the density of the trees increased over time. Reliance was also placed on the fact that, at least for some time, the fences along Bridge Inn Road were different on either side of the disputed land from the fence along the disputed land. I do not think that the physical difference of appearance was the kind of "appearance" pleaded in the statement of claim. However, I do not think that, in this case, the distinctiveness in appearance is significant. The trees, as a distinctive feature on the landscape, is as consistent with a feature on one holding of land as it might be a mark of differentiation of ownership. It is easy to imagine a family with young children setting aside a part of a large rural property for their children to play in as a park without the necessary inference that the land did not belong to the same owners as the surrounding land. Similarly, the difference in the front fence as between the Abbatangelo property and the disputed land is not significant because the choice of fence for the disputed land may be explained by any visual impact which it might have on what might otherwise appear from the road as featured parkland. In addition, I am not able to accept the proposition that the southern fence on the disputed land was always different from the Bridge Inn Road fences of the Abbatangelo property on either side of the disputed land.

[43]

37 I am unable to accept either of the two contentions on the basis of the evidence. I accept for present purposes the evidence of Mr Draper in preference to that of Mrs Laurice Abbatangelo. I accept, therefore, that he attended the Abbatangelo property in response to an instruction from the Council's superintendent and that he enquired of her whose permission he needed to obtain to enter the disputed land. These conclusions are I think both plausible and likely given his tasks and his position with the Council. What I am not prepared to accept, however, is that the conversations had the character cast by counsel in their submissions. The entry upon the land by Mr Draper or by those effecting the clearing for the council do not amount, in my view, to "continued possession" by the council, as contended, or to any retaking by it of possession. It was at best an indication that no other permission needed to be obtained for the limited purpose of doing such works as were needed to be undertaken and which for present purposes I accept were undertaken. There is no suggestion in the evidence of any further awareness by Council altering its position in any way whatsoever as a result of, or following, Mr Draper's visit or after the works carried out in relation to the disputed land. That is to say, the scope of his visit and the works were specific, narrow, discrete and, in my view, cannot have such significance as to undo whatever had occurred by then. Indeed, it may be contrasted with the Council's actions in 2004 when its legal advisers became aware of Mrs Laurice Abbatangelo's claim of adverse possession. At that point there was a demand to remove livestock from the disputed land and the construction by council of a fence to assert ownership. Nothing of that kind took place in 1992 and Mr Draper's shock or surprise lead to him to doing, without further permission, no more than the limited things he set out to do. Such concern as he may have had about ownership was simply to ensure that he, and the other workers, could do the works without risk and the answers given satisfied him that he could do what he proposed to do. The entry by him or by others on behalf of the Council in 1992 did not amount "to a resumption of possession" by the Council and certainly did not amount to any "assertion of title".[29]

At a glance

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Judgment (77 paragraphs)

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Legislation Cited (24)

Cases Cited (1)