3 Whether any interest in Satellite which may have subsisted as at 16 February 1996 has lapsed or was cancelled upon the expiry of 12 years thereafter.
Evidentiary Background
6 South Maitland owns and operates a private railway servicing the Austar Coal Mine at Cessnock along a rail corridor and line which has been used in its present position since 1889. This railway runs through Lots 2 and 3. The railway is a private railway and from 1889 to 1919 the railway line was owned and operated by East Greta Coal Mining Company which by deed made on 18 February 1919 sold the property to South Maitland. The rail corridor and line have been used since 1889. The line used on the subject property is part of the line which runs for some 31 kilometres from East Greta junction box to the Austar Coal Mine in Cessnock and has the capacity to run up to six trains or 12 movements per day 24 hours a day seven days a week. The current requirements provide for the movement of trains, with peaks and troughs, from nil to five per day.
7 The railway line is fenced to protect the rail corridor which is approximately 20 metres wide except in some locations such as a siding or platform. These exceptions are not relevant in this case. The corridor fence is a requirement under the railway legislation and there is no contest as to this.
8 The evidence discloses that South Maitland employees and contractors access the subject land about once a year to carry out repairs to the adjacent rail line because the rail corridor adjoining the land cannot be easily accessed by other means. The work which is required from time to time to the line includes track repairs, re-sleepering, re-railing, welding, emergency repairs to broken rails and joint breakaways. It also includes changing broken fish plates, brush cutting and weed poisoning.
9 Mr Roger Davies, the General Manager of South Maitland, gave evidence that he began work with South Maitland on 1 December 2005 and is familiar with Lots 2 and 3 and the specific part which is the subject of the Primary Application. His evidence is that South Maitland always paid and continues to pay rates on land including the subject land to Maitland City Council and land tax to the Office of State Revenue and he has produced documents to support those assertions. He said that on occasions since 2005 he has accessed the rail line via the subject land and that he has never requested permission to enter the land from anyone nor has anyone ever attempted to prevent him accessing the land as needed.
10 There is also evidence from Mr John Skene who is an employee of South Maitland aged 64 and who has been employed by it since 1977 as a fettler and later as a signalman. He says that since 1977 he has accessed the land about once every year. Up to about six years ago he accessed the land normally in a crew of six to carry out repairs to the adjacent section of the rail line. The maintenance staff consisted of about nine men including fettlers, a ganger and an electrician. He is also aware that other employees accessed the land on average about two times per year. As a signalman over the past six years he is aware of visits by others to the land because those working on the track must notify the signal box of any work being carried out on the track. He first entered the land about 1977 to access the rail corridor. Since 1977 he has never requested permission to enter the land and has never been prevented from accessing the land the subject of the Primary Application, nor has he ever received any request that he seek permission to enter. Over the years he has seen the land used by Mr Gleeson who owns some chicken sheds to the south of the land and he has seen cattle on the land at various times and since November 2007 he says the land has been used by Mr Grant to run horses.
11 Satellite owns a large parcel of land (Lot 315) which is adjacent to the subject land and some of the farming operations conducted on Lot 315 extended into parts of the subject property. Satellite acquired Lot 315 in DP 812385 on 18 April 2001 from the Jordan family who purchased it in 1969.
12 Mr Douglas Jordan's evidence was that Lot 315 was used as a dairy farm until 1987 and that his father ran cattle on it. There were normally about 200 head of cattle run on Lot 315 and the cattle grazed on both Lot 315 and the subject land. This continued until Lot 315 was sold to Satellite. Mr Douglas Jordan remembers the dividing fence between the railway line and the subject land. He says that his two brothers and himself ran cattle on the property until all of the parcels including Lot 315 were sold in 2001. He says that he was unaware of any claim or assertion to the effect that the fence on the eastern boundary of the railway line was erected on land owned by South Maitland.
13 Mr Phillip Jordan, the brother of Mr Douglas Jordan, said that he often walked or rode his motor bike over Lot 315 near the subject land and the eastern fence and he says that the fence on the eastern side of the property had always been erected in its current position and that he regarded the fence as representing the boundary of Lot 315. He says that he was not aware of any claim or intimation on behalf of South Maitland to the effect that it owned the land up to that fence.
14 Evidence was also led from Mr Michael Bourke, a Director of Satellite. He was unable to attend the hearing for health reasons and therefore was not cross-examined. He says that he has known the land over the last 40 years and was generally aware of the activities on it and he knew of the fence. He says that the land was used to graze cattle and horses over the whole of Lot 315 including the subject land up to mid-2008. He says that Satellite undertook cleaning activities to improve and maintain the safety and appearance of the whole of Lot 315 including the subject land. He says that he considered the subject land to be an integral part of Lot 315. He also says that he never received any demand from South Maitland for the payment of rent or any outgoings and has not received any claim or notice that South Maitland owned the subject land and did not consent to use by Satellite.
15 Messrs Douglas and Phillip Jordan were cross-examined during the hearing.
Legal Principles - Adverse Possession
16 The claim of Satellite is that over the period 1969 through 2008 it was seised of possession of the subject land being part of Lots 2 and 3 and that there was no person in possession or occupation of the land adversely to its interest.
17 As Young CJ in Eq pointed out in Weber v Ankin [2008] NSWSC 106 at [103] that to establish the possession of a claimant to possessory title is adverse to that of the documentary owner, so that the Statute of Limitations commences to run under s 38 of the Limitation Act 1969 (NSW), there must be both an appropriate degree of exclusive physical control of the land in question and an intention to possess the land to the exclusion of all others including the true owner. To defeat a title by dispossessing a former owner, acts must be done which are inconsistent with the enjoyment of the land for the purposes for which the owner intended to use it. Where the possession asserted is "equivocal" there will generally be insufficient evidence to show from those acts that possession of the owner was excluded. The High Court in Clement v Jones [1909] HCA 11; (1909) 8 CLR 133 at 139-140 said that when possession or dispossession has to be inferred from equivocal acts the intention with which they are done is all important. In that case, by looking at the position of the owner, Isaacs J accepted that the fact that the respondent's family constantly for years entered the land and supplied themselves with wood afforded cogent evidence that they had never abandoned possession. His Honour said that if there were two persons in a field with each asserting that the field was his and each doing some act in the assertion of the right of possession then the person who had the title was in actual possession and the other person was a trespasser. He also noted that in that case the fact the person with title had no objection to another party grazing cattle on the land was not to be treated as creating any adverse right or exclusive possession on the part of the person running the cattle to the detriment of the title holder.
18 The decision in Clement's case was applied by Cussen J of the Victorian Supreme Court in Murnane v Findlay [1926] VLR 80 at 88 and 92. Of course, possession must be considered in every case by reference to the particular facts and the conduct supporting a claim for possession. What is sufficient in one case may be inadequate to prove it in another because it is necessary to have regard to the character and value of the property, the appropriate way of using it and the course of conduct which a proprietor might reasonably be expected to follow: see Murnane at 87.
19 Where a person who is not the true owner of land voluntarily pays rates and taxes in respect of the land that fact will be given significance in determining whether adverse possession has been made out, because it shows that the claimant for possessory title was not committing mere casual acts of trespass but had the deliberate purpose to exercise possession and dominion over the land: see Bank of Victoria v Forbes (1887) XIII VLR 760 at 765. In the present case, the fact that South Maitland has paid Land Tax and Council rates on the subject land is an important consideration in support of its contention that no possessory title has been acquired by Satellite or its predecessors.
20 It is not necessary for an owner to show that physical use has been made of every section of the land and acts of possession done on parts of a parcel of land may be evidence of possession of the whole: see Higgs v Nassauvian Ltd [1975] AC 464 at 474. It is sometimes difficult to arrive at a single description adequate to cover all aspects of the use of land. Often there may exist a dominant use with other subsidiary uses which are less intensive or equivocal.
21 As Else-Mitchell J said in Van Den Bosch v Australian Provincial Assurance Association Ltd [1968] 2 NSWR 550 at 555 the title of a proprietor and all rights conferred by that title should not be lightly diminished, vitiated or extinguished by rights claimed by virtue of possession dependent on oral testimony which may be of doubtful weight and value.
22 An owner can of course during the period prevent the limitation period from running continuously where there is a sufficient resumption of possession. However, such resumption must be more than formal and should provide evidence of an intention to re-assert rights to possession, to re-enter onto the land and to use the land: see Shaw v Garbutt (1995) BC 9303589, 2 August 1996 per Young J.
Reasoning on Adverse Possession Claim
23 The evidence is that the present rail corridor and line has been regularly used since 1889 for the purpose of train movements on a daily or weekly basis involving more than one trip per day. The fence erected on the eastern side of the railway line was erected before 1969 and there were legislative requirements to separate the line from adjoining land as may be necessary to prevent the straying of cattle and to protect the land from trespassers. The erection and maintenance of the fence as a protective measure does not therefore evidence in any conclusive way an intention to part with the possession of any proprietary rights or interests in any part of Lots 2 and 3. The intensive use of a significant part of the subject land for a railway line in the present context characterises the use of the whole of the land for that and subsidiary purposes by South Maitland. The fact that over many years there had been cattle moving from Lot 315 on to part of the subject land does not, in the absence of anything further, mean that such use shows an intention to use the land in a manner adverse to that of the owner. The grazing of cattle on the land without protest from the owner is an equivocal act and is consistent with exercising dominion over the land by the owner. This type of use is consistent with the owner permitting another person or persons to graze or agist cattle on part of the land which is not required for the principal purpose of railway carriage or maintenance. The grazing of cattle does not impede the use of the land for railway purposes and related purposes such as access for repairs and maintenance.
24 The evidence is that at no stage were staff or contractors on behalf of South Maitland ever required to obtain permission to enter on the land or move across it to maintain the railway line. The evidence is that at least once a year, and probably more often, staff and contractors of South Maitland entered on the subject land for the purpose of gaining access to the line from Russell Street at the south of Lot 315 so that they could carry out maintenance and repair operations together with safety inspections on the line. These acts on behalf of the owner, South Maitland, evidence positive assertions of ownership and right of access and use of the land for the purposes of the railway. The grazing is equivocal and there is countervailing affirmative evidence that the owner in the relevant period from 1969 to 2008 intended to maintain dominion over the subject land. This is consistent with the grazing activities and usage for cattle as having been treated by South Maitland as not incompatible with its rights of ownership.
25 When the evidence of use by South Maitland is considered, together with the fact that at all material times it has paid rates and Land Tax on the subject premises there is a strong indication that Satellite and its predecessors in title had not at any stage acquired title adverse to South Maitland's ownership. The position of South Maitland is further reinforced by the aerial photographs, particularly Exhibit A, when read in the light of the evidence of Mr Skene. This shows that there was a track (in Exhibit A) between two Queensland gates into Lot 315 and into the rail corridor which appear to have been used for access by the rail line. Mr Skene says, and I accept, that as a fettler and signalman he had personally accessed the land about once or twice every year and I also accept that he became aware as signalman of maintenance work being carried out on the line by gaining access through the subject property. This evidence is direct observation which reaches back to 1977 and covers a large portion of the period of use relied on by Satellite.
26 Having regard to the above evidence, I find that Satellite and its predecessors are and were not seised of possession of the subject land and that South Maitland has been and is in possession or occupation of the land adverse to any estate or interest of Satellite in the land. No reason has been advanced why an order should not be made that the Registrar-General be restrained from bringing the subject land under the provisions of the Act.
27 Having regard to the above finding against Satellite on the question of adverse possession it is not necessary for me to deal with the other issues raised in submissions but since the matters have been argued I will briefly indicate my conclusions with respect to them.
Application of Part 6A - Possessory Title
28 Satellite's contention is that Part 6A of the Act concerned with possessory title does not apply in this case because it involves an application to bring land under the Act by way of Primary Application. It contends that by reason of s 14(8) of the Act the land is not subject to the provisions of the Act because it is comprised in a qualified portfolio and therefore because Part 6A, in particular s 45C, only applies to acquisition of possessory title to land under the Act, that Part does not apply.
29 The definition of "land not subject to provisions of the Act" is for the purposes only of s 14 which refers to persons entitled to bring land under the Act. However, Part 6A is a distinct section of the Act which specifically deals in detail with possessory title and possessory applications. Section 45C relevantly provides that no title to any estate or interest in land adverse to the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate and neither shall the title of any such registered proprietor be extinguished by operation of a limitation statute. Subsection (1), however, is subject to a requirement that it does not prevent the acquisition of title, adverse to the title of the registered proprietor thereof, to an interest in land brought under the provisions of the Act by the creation of a qualified or limited portfolio by reason of possession of the land for any length of time commencing before the creation of the folio: see s 45C(2).
30 In this case the registered proprietor, South Maitland, did not acquire title by reason of possession. Therefore, title to the land in the qualified folios was not acquired by reason of possession.
31 Accordingly, s 45C(1) is applicable and Part 6A applies exclusively.
32 The consequence of Part 6A applying is that under s 45B a person in possession may only apply to be recorded as the proprietor of the estate or interest in the land where the land in question is a "whole parcel of land". The expression "whole parcel of land" means the whole of the land comprised in a folio of the Register. The land the subject of the Primary Application in the present case is not a "whole parcel of the land" comprised in a folio of the Register and therefore it cannot be that Part 6A confers possessory title on Satellite. Because Part 6A is the only way of acquiring possessory title under the Act then it is conceded by Mr Tzovaras that Satellite cannot obtain possessory title.
Lapsing of the Caution on the Qualified Folios
33 South Maitland submits that because 12 years have passed since the qualified folios for Lots 2 and 3 were issued then the caution under the Act has expired as a consequence of the provisions of s 28MB. Lapsing took effect on and after 17 February 2008 and operated to free the land from any interests that may have affected the land at the date it was brought under the Act by the creation of the qualified folio on 16 February 1996. The Primary Application was lodged in early March 2008 and by this time the caution did not apply.
34 Satellite submits that s 28MB has a limited effect because it refers to freeing the land or the estate or interest from any interest that affected the land at the date when it was brought under the Act. It says that the words "interests" and "estate" do not cover an application which claims an interest or estate because there is a distinction between an application and having an interest or estate and that therefore the submission under s 28MB of the Act is not available.
35 I do not consider there is any substance in the above submission by Satellite because where land is freed of an estate or interest it must also be taken to have been freed from any valid claim or application asserting such an interest and so in this case the lapse of the 12 year period from creation of the qualified folios had the effect that any claim which may have previously subsisted has lapsed and the land is free from any claim by Satellite or its predecessors in title.
Conclusions
36 For the reasons above I am satisfied that the orders sought in the summons should be made and that the first defendant should pay the plaintiff's costs.