In circumstances outlined in earlier judgments, I have heard the plaintiffs' claim for a declaration that it has the benefit of the right of carriageway I have mentioned. If the plaintiffs are successful in this claim, it is common ground between the plaintiffs and the second defendant that the action against the second defendant will be dismissed, with the plaintiffs paying the second defendant's costs. If the plaintiff is unsuccessful in its claim for a declaration about the right of way, then the plaintiffs' claim against the second defendant will proceed.

It is convenient to start with a brief history of facts which are not substantially in dispute.

On 7th June 1971, Deposited Plan 547705 was registered in association with a s.88B instrument given the number M306169. This plan is annexed to the judgment marked A. The registration of the plan created Lots 1 and 2 with which this case is concerned. It also created easements in favour of Lot 2 over Lot 1, being a right of carriageway and an easement to drain sewerage, both over the same part of Lot 1; namely, a strip four feet wide along the southern boundary of the battle-axe head of Lot 1, and extending five feet into the battle-axe handle of Lot 1, so as to give access to it from Lot 2.

At that time, both Lots 1 and 2 were owned by the late Robert Wilson. Subsequently, Mr. Wilson sold Lot 1 to Birmingham Company Pty. Ltd., a company associated with one Mr. Holecec, who proceeded to erect a house on Lot 1.

There were then discussions between Mr. Wilson and Mr. Holecec concerning the installation of inclinators by Mr. Holecec to give access to the house on Lot 1. It appears that the Council would not allow Mr. Holecec to put an inclinator on the four foot battle-axe handle of Lot 1, because the Council required that there be a staircase as well as an inclinator, and there was not sufficient room for this. Mr. Wilson agreed to give a right of way over Lot 2 on which two inclinators could be installed: the top inclinator near Wolseley Road to be used by the owners of both lots, and the lower inclinator (beginning on the new right of way, and ending within the battle-axe head of Lot 1) to be used by the owner of Lot 1.

To create rights of way giving effect to this arrangement, two transfers were registered on 23rd February 1976. First, there was dealing No.P236518, being a transfer from Birmingham Company Pty. Ltd. to Mr. Wilson of an interest in part of Lot 1, being "full and free right of carriageway over all that strip of land 1.22 metres wide as shown in Deposited Plan No.577157 and therein described as right of carriageway No.A". Second, there was dealing No.P236519, being a transfer from Mr. Wilson to Birmingham Company Pty. Ltd. of an interest in part of Lot 2, being "full and free right of carriageway and user, including the right to construct a mechanical inclinator, over all that piece of land 1.83 metres wide as shown in the plan DP 577157 and therein described as right of carriageway No.B". Deposited Plan 577157 had in fact been registered on 26th May 1975, and a copy of the relevant part of this plan is annexed to this judgment marked B.

The central issue in this case is whether the right of carriageway No.A transferred by dealing P236518 extended all the way from Wolseley Road to Double Bay (in which case it would have partially overlapped and duplicated the previously granted right of carriageway) or only up to the end of the previously granted carriageway and thus extending only from Wolseley Road to five feet within the battle-axe handle of Lot 1. Crucial to that question is the effect of a symbol call a "vinculum" on the plan, which straddles the end of the previously granted right of carriageway. Some evidence was given about this by surveyors, and I will return to this evidence.

In May 1977, the first defendant Mr. Fleming exchanged contracts for the purchase of Lot 1. At that time, direct access from Lot 2 to the right of carriageway granted in 1971 was blocked or hindered by the lower inclinator and by a change of levels, so that the practical access from Lot 2 to the 1971 right of carriageway was by going on to part of the right of carriageway granted in 1976. Mr. Fleming's purchase of Lot 1 was completed in 1978.

In 1983, the first defendant and his sister purchased Lot 2; and in 1987, the first defendant and his sister executed an instrument releasing the 1971 right of carriageway. This transfer and release was registered on 13th May 1987 under the number W743976, and it transferred and released to the first defendant the "right of carriageway 4 foot wide Deposited Plan 547705".

By a contract dated 23rd October 1986, the first defendant and his sister agreed to sell Lot 2 to a Mr. Toltz. The transfer to Mr. Toltz was registered on 13th May 1987 and numbered W742418. Subsequently, Lot 2 was transferred by Mr. Toltz to the plaintiffs.

The question involved in this case is whether the 1987 release of the 1971 right of carriageway left operative (over the same area of land as had been affected by that right of carriageway) part of the 1976 right of carriageway. This in turn involves the following questions: first, did the 1976 right of carriageway purport to include that area; second, could it effectively do so; and third, if yes to each of the first two questions, is there any reason why that part of the 1976 right of carriageway should not survive the release of the 1971 right of carriageway?

Evidence of surveying practice relevant to the interpretation of Deposited Plan 577157 was given by three well-qualified surveyors: Mr. Blume for the plaintiffs, Mr. Brown for the second defendant, and Mr. Green for the first defendant.

With regard to the Right of Carriageway shown within Lot 1, however, there is apparently a dispute as to the extent of the Right of Carriageway. That Right of Carriageway is shown as 1.22 metres wide and is known as No.A. The second Deposited Plan also shows the prior Right of Carriageway and Easement to Drain Sewage 1.22 wide. This notation is in brackets on the western end of the corridor. There is also a line drawn across the Right of Carriageway at right angles to the common boundary between Lots 1 and 2. That line is 1.525 metres from the south-western corner of Lot 2 and delineates the limit of the old Right of Carriageway and Easement to Drain Sewage. Across that line is a symbol used by surveyors to denote that the strip of land shown is present on both sides of the line. This implies that the proposed Right of Carriageway 1.22 wide, and known as No.A, extends from Wolseley Road to Double Bay waterfront.

A. The vinculum shown across the dotted line is the normal survey and drafting practice, when presenting plans to the Land Titles Office to indicate that the two (2) parts are to be read as one (1) entity. A vinculum is used where two (2) parts of the same lot are separated by either a road, river or other physical feature in a Torrens Title Plan and, in the case of a Strata Plan, across the wall between the unit and a balcony to indicate that they are part of the one (1) lot. In this plan, DP.577157 the vinculum is used to indicate that the "Proposed Right of Carriageway 1.22 Wide No.A" also covers the western section of the strip.

B. The fact that the "Right of Carriageway and Easement to Drain Sewage 1.22 Wide" is enclosed in brackets indicates that it affects only part of the strip of land and this, again, is a normal survey and drafting practice. For example, on this plan there are three (3) cases where brackets are used to show that the measurement or extent of a Right of Carriageway is only part of the length, i.e. on the street frontage there is 4.66 and (1.22), along the southern boundary of Lot 2 there are distances of 61.78 and (1.525) and finally, along the boundary dimensions 6.095 there is (1.83). All these signify that the distance and extent of the Right of Carriageway is that shown in brackets.

C. DP.577157 shows a bearing of 257º43' distance 75.67 along the southern boundary of Lot 1 from Wolseley Road to an angle and a bearing of 27' distance 21.97 from the angle to Double Bay. There are no distances in brackets shown along this southern boundary of Lot 1 and this quite clearly indicates that the Right of Carriageway 1.22 Wide No.A extends from Wolseley Road to the angle and from the angle to Double Bay. Had DP.577157 meant to limit the depth of the Right of Carriageway 1.22 Wide No.A, either a distance in brackets would have had to be shown from Wolseley Road westward to the broken line or, which would be quite acceptable, from the angle eastward to the broken line.

D. It has been my experience that, where new rights of way or easements are to be created and there are existing rights of way or easements covering part of the land, it is quite normal practice to create the new rights of carriageway, easements, etc., as though the other rights of way did not exist. This is done to ensure that the full extent of the new proposal is quite clear and unambiguous. Redundant rights of carriageway, easements, etc., that are no longer required, or are covered by the new proposal are then extinguished.

Therefore, based on the above, it is my opinion that the proposed Right of Carriageway 1.22 Wide No.A extends from Wolseley Road to Double Bay. There are two independent indicators which support my opinion:

(i) Clause B above where no distances are shown in brackets to limit the extent of the Right of Carriageway along the southern boundary, together with Clause B where the existing Right of Carriageway and Easement to Drain Sewage 1.22 Wide are enclosed in brackets.

(ii) Clause A above where the vinculum indicates that the Right of Carriageway is to be taken as being over that part of the previous Right of Carriageway and Easement to Drain Sewage 1.22 Wide.

12. In my opinion, Deposited Plan 577157 did not create a right of carriageway over that part of Lot 1 in Deposited Plan 547705 which at the time was burdened by a right of carriageway and easement to drain sewage. Deposited Plan 577157 shows a "proposed right of carriageway 1.22 wide" "No.A" over Lot 1 in Deposited Plan 547705 and a "proposed right of carriageway 1.83 wide" "No.B" over Lot 2 in Deposited Plan 547705.

13. A vinculum is shown in Deposited Plan 577157 connecting the proposed right of carriageway "No.A" to the right of carriageway created in Deposited Plan 547705.

14. A vinculum is normally used to show that different parts of a lot which are divided by a physical object are in fact part of the one lot; for example, if a road which either belongs to a third party or is a public road passes through the middle of a lot, a vinculum would be used on either side of the roadway to shown that the property on both sides of the roadway is the one lot. Another example is found on strata plans where a balcony would be indicated as forming part of a lot by a vinculum shown on either side of an external wall of the building, the material of which forms common property and is a boundary between separated parts in the same strata title lot. Another possible situation in which a vinculum is used is to confirm that abutting lots are in one ownership.

15. I cannot ever recall having seen a vinculum used in the manner as it has been in this case and its use in the present situation is not consistent with conventional survey drafting practice.

16. In my opinion, the only reasonable conclusion to be drawn from the use of the vinculum in this case is, from the point of view of survey drafting practice to demonstrate that the two rights of carriage way; that is, the then existing right of carriageway and the new right of carriageway, abut each other.

17. In my opinion, it is not usual surveying practice to superimpose a right of carriageway over an existing right of carriageway where the dominant and servient tenements are the same lands.

18. It would not be usual or in accordance with usual survey drafting practice to create a right of carriageway over an existing right of carriageway particularly where the two rights of carriageway are of the same width, where the dominant and servient tenements are the same and where the terms of the right of carriageway granted are the same.

19. If it was intended to create a right of carriageway from Wolseley Road to the high water mark, the appropriate method would have been:

A. by writing the words, "proposed right of carriageway 1.22 wide" outside the lines forming the right of carriageway and used two or more arrows to the space between Wolseley Road and the high water mark; or

B. place a letter, for example, "A", within the space I have referred to and then outside of that space by way of a legend put the letter "A" and a description of the right of carriageway.

20. The fact that the words, "proposed right of carriageway 1.22 metres wide" and the word and letter, "No.A", have been compressed into the space allocated in Deposited Plan 577157 reinforce my conclusion that it was only intended by that instrument to create a right of carriageway from Wolseley Road to the point where the vinculum appears.

21. In my opinion, no conclusion can be drawn in accordance with the usual survey drafting practice, that the vinculum used in Deposited Plan 577157 was intended to create a right of carriageway which traversed an existing right of carriageway.

In support of Mr. Green's contention that a vinculum is sometimes used to indicate common ownership, there was tendered a page from a publication entitled Australian Standards Engineering Drawing Practice published by the Institution of Engineers, Australia; and also a page from a publication entitled Standard Drawing Symbols Abbreviations Graphical Representation published by TAFE NSW.

There was additional evidence by each of the surveyors, and I will refer to some of that evidence where appropriate in outlining submissions and giving reasons for my decision.

Mr. Walton for the plaintiffs submitted that I should accept the evidence of Mr. Blume and Mr. Brown, to the effect that there was no doubt that the diagram on DP577157, and in particular the vinculum, meant that the right of carriageway No.A extended all the way from Wolseley Road to Double Bay. Mr. Green contended that the vinculum could indicate common ownership between the two parcels of land, but conceded that he had never seen it used that way on deposited plans or like documents. Furthermore, he had to say in effect that the vinculum was superfluous. The circumstances surrounding the creation of the easements were inconclusive, and did not affect the construction of the document.

Mr. Walton further submitted that there was no reason why two easements could not be created over the same piece of land. He submitted that an easement under the Real Property Act was not a common law easement, but a statutory interest analogous to the statutory charge created by a Real Property Act mortgage. Two easements in favour of the same land and involving the same rights could co-exist and not be merged. There was no merger of a Real Property Act mortgage when the registered proprietor acquired the mortgage (English Scottish & Australian Bank Ltd. v. Phillips [1937] HCA 6; (1936) 57 CLR 302), and s.47(7) of the Real Property Act provided that a registered easement should not be extinguished solely by reason of the same person becoming proprietor both of the land burdened and of the land benefited by the easement. A registered proprietor, having granted one easement over its land, could grant a further easement over the same land, so long as it was not inconsistent with the prior easement and did not derogate from the grant of the prior easement.

Mr. Colefax for the second defendant adopted Mr. Walton's submissions.

Mr. King for the first defendant provided a written outline of submissions, which I will leave with the papers.

In oral submissions, Mr. King pointed to the requirement of s.88 of the Conveyancing Act that the land affected by an easement should be clearly stated. He submitted that surrounding circumstances could be taken into account in interpreting an easement: see Gallagher v. Rainbow [1994] HCA 24; (1993-4) 179 CLR 624 at 639-644. In this case, the intention of the proprietors of Lot 1 and Lot 2 was to provide reciprocal rights to facilitate the installation of an inclinator and staircase; and it had nothing to do with access to the waterfront, which was the subject of the prior right of way.

Mr. King referred me to Instrument P236518, and pointed out that the right of carriageway was created over a strip described in the deposited plan as "Right of Carriageway No.A". There was no such strip on the deposited plan, but a strip described as "proposed right of carriageway 1.22 wide No.A". However, Mr. King did not submit that the words "proposed" and "1.22 wide" on the strip in the deposited plan made the transfer unclear or ineffective; and I do not believe that it could do so.

Mr. King submitted that when the right of carriageway was created in 1976, all that was necessary and appropriate was to create a right of carriageway extending from Wolseley Road to the beginning of the previous 1971 right of carriageway; and the grant should be construed so as to achieve what was necessary and appropriate: cf. Attard v. Blue Mountains City Council, Land & Environment Court, 26th February 1993. There was no intention to over-reach, or to place an additional burden on that part of Lot 1 already burdened by the 1971 right of carriageway.

If it had been intended that the new right of carriageway extend to Double Bay, it would have been easy to make this clear; either by having the wording outside the strip with arrows pointing to both parts of it; or else by having "No.A" on both sides of the broken line which showed the eastern extremity of the 1971 easement.

On the effect of the vinculum, Mr. King referred me to Murray Meats v. N.T. Planning Authority (1982) 69 FLR 32 at 46 (cf., on appeal[1983] FCA 105; , (1993) 66 FLR 394 at 412). Just as in that case the purpose of the vinculum was to show that a particular reserve included two portions of land, the purpose of the vinculum here was to show that there were two abutting rights of carriageway with the same ownership, that is, for the benefit of Lot 2.

Mr. King also submitted that, at the date of execution of dealing P236518, the proprietor of Lot 1 could not grant an easement over the land subject to the prior right of way, because that right of way had previously been conveyed away by DP547705 in favour of Lot 2. A proprietor of land cannot grant an easement greater than his interest in the land: see Butt, Land Law, 3rd Ed., par.1621.

A vinculum is a bond of union (see Shorter Oxford Dictionary), and in my opinion, the vinculum in this case does indicate some kind of union between the pieces of land on either side of the broken line straddled by the vinculum.

Mr. Green, the first defendant's surveyor, said that the purpose of the vinculum in this case was to confirm that two rights of way should abut (there being a 1mm. difference between the five feet shown on DP547705 as the projection of the 1971 right of way into the battle-axe handle, and the 1.525m. shown on DP577157), and to confirm that the existing right of carriageway and proposed right of carriageway were linked in the sense of being in favour of the same lot, that is Lot 2. However, I accept Mr. Brown's evidence that the practice of the Registrar-General is to require metric measurements to be rounded out to the nearest 5mm.; and so I do not think there is any weight in the contention that the purpose of the vinculum was to show that two pieces of land abutted, rather than being separated by 1mm.

In my view, it is clear that the purpose of the vinculum in this case is to show some kind of union between two parcels of land, and the question is, what kind of union. It appears that the vinculum is not generally used to show union of ownership in deposited plans or like documents, and the material submitted suggests that a vinculum is used to indicate common ownership only in relation to plans which on their face deal with ownership. In my opinion, the natural reading of the plan in DP577157 is that the vinculum shows a union between two parcels of land in respect of a matter stated on the plan, namely the words which are not in brackets adjacent to the vinculum; that is, in respect of being a proposed right of carriageway 1.22 wide No.A. This is the way I would read it without the benefit of expert evidence; and I do prefer the evidence of Mr. Blume and Mr. Brown to that of Mr. Green on this matter. Although the same result could have been achieved more clearly by other means, I think the means actually used are clear enough.

I do not think there is any legal impediment to creating two rights of carriageway over the same area in one lot, for the benefit of another lot, so long as there is no inconsistency or derogation from grant. I accept the evidence of Mr. Brown that this is sometimes done with a view to having a complete easement shown on one document, with the lesser (overlapped) easement then being released. I do not think that the circumstances of the creation of the 1976 easement indicate otherwise in this particular case. In my opinion, when the 1971 easement was released some years later, this left the 1976 easement still in force over the same area of land.

Accordingly, I find that the plaintiffs are entitled to the declaration they claim. I believe that it follows that the first defendant should pay the plaintiffs' costs of the proceedings; though perhaps this should exclude any costs occasioned by joining the second defendant. The plaintiffs' claim against the second defendant should be dismissed with costs. I do not think there are sufficient grounds for requiring the first defendant to indemnify the plaintiffs in respect of their liability for costs to the second defendant.