Stephen and Jacobs JJ agreed.
69 James LJ in the Dixon case at p 368 indicated that a right of way by prescription could be claimed from point A to point B even though, because there was no defined track, users had sometimes found their way from A to B by one track and sometimes by another.
70 Although it was not cross examined upon, I have great doubt as to whether every workman or journalist pursued an exact straight line from one side of the Busway to the other along the 11 paths noted on Mr King's map. Indeed, there is weighty material to the contrary because people have deposed that when the grass was muddy they would in fact deviate. The evidence gets very close to merely saying that people would cross from one side of the Busway to the other without let or hindrance on whatever path it pleased them to take. Such evidence is not sufficient to show a right of way from the terminus a quo to the terminus ad quem.
71 The evidence was, however, not challenged, and there is some support in the cases that so long as one has fair definition of the terminus a quo and the terminus ad quem, a prescriptive easement can be obtained even though there is some fuzziness on the tracks that were used from time to time between the two points, so long as they have at some stage been properly defined.
72 It seems to me that there is just sufficient material to show that there was user for 20 years along each of the 11 paths.
73 A principal difficulty for the AJC is to establish that prescriptive easements over Torrens system land can exist in New South Wales.
74 The high point of the argument for the AJC in this respect was the decision of the Full South Australian Supreme Court in Golding v Tanner (1991) 56 SASR 482. In that case the Full Court consisting of King CJ, Cox and Debelle JJ held that the doctrine of the lost modern grant was not inconsistent with the terms of the Real Property Act unless there had been a change in the registered proprietor of the servient land during the period of adverse user.
75 Debelle J said at 489-490:
"Easements by prescription are not necessarily incompatible with the Torrens system. Easements by prescription have been upheld in some other States where land is under the Torrens system. The question whether easements by prescription can arise in respect of land under the Torrens system and in what circumstances they can arise will turn on the terms of the particular legislation to which the land is subject. Thus easements by prescription have been upheld in Victoria, Tasmania and Western Australia. … But not in New South Wales or the Northern Territory. …".
76 The NSW decisions referred to are Jobson v Nankervis (1943) 44 SR (NSW) 277; Kostis v Devitt (1979) 1 BPR 9231 and Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618.
77 In Jobson v Nankervis, there was a path clearly marked on the ground and on a plan from the plaintiff's lot, Lot 1, across Lots 4, 5 and 36 owned by the defendants. Nicholas CJ in Eq held that New Zealand decisions such as McKenzie v Waimumu Queen Gold-Dredging Co Ltd (1901) 21 NZLR 231, 234, applied in New South Wales and prohibited the acquisition of easements by user.
78 Powell J in Kostis v Devitt (1979) 1 BPR 9231, 9238-9, said that with possible exceptions, none of which are relevant here, "the scheme of the Real Property Act 1900 does not permit the creation or acquisition of easements otherwise than in manner provided by ss 46 and 47 of the Act."
79 In Australian Hi-Fi Publications Pty Ltd v Gehl Mahoney JA, with whom Reynolds and Samuels JJA agreed, said at 625 that:
"It was the view of Nicholas CJ in Eq in Jobson v Nankervis that, in respect of land under the Real Property Act, easements (with exceptions not here relevant) cannot arise otherwise than by instruments executed under the Act, so as to be enforceable against a subsequent registered proprietor. The judges of this court at first instance have from time to time felt it proper to apply the view of Nicholas CJ in Eq. … I do not think that the construction of s 42(b) is governed by the decisions upon this kind of point in other jurisdictions. … It is, of course, desirable that the principles to be derived form the Torrens legislation in all jurisdictions should remain uniform. However, it has been said, and in particular in relation to easements, that there is no single pattern of legislation, to all jurisdictions and that in the end, the matter is to be determined by construing the particular Act. …".
80 The Australian Hi-Fi case was very much confined by the later decision of the Court of Appeal in Dobbie v Davidson (1991) 21 NSWLR 625, but there is nothing of value in that decision for the instant case save possibly to note the historical analysis by Priestley JA as to how the original thought of the Torrens innovators that notwithstanding registration, title should be subject to easements however created was rejected by the legislature. The Australian Hi-Fi case and Dobbie v Davidson were decided before s 42(1)(b) dealing with omission of easements was amended to take its present form. At present, what was formerly section 42(1)(b) has been remoulded as 42(1)(a)(i) to make it clear that the only exception to indefeasibility with respect to easements is with respect to those subsisting immediately before the land was brought under the Act or validly created after that time under the Real Property Act or a Commonwealth Act. The remoulded paragraph itself does not seem to me to alter the previously stated position.
81 In Woodman and Nettle Torrens System in NSW (LBC, Sydney, 2003) page 10246 (update 23), the learned authors say:
"The view has been expressed in New South Wales that prescriptive easements had no place at all under the former s 42(1)(b) … . An alternative view has been suggested by a South Australian case that prescriptive easements are governed by principles analogous to those governing implied easements: see Golding v Tanner … . Under this alternative view, a prescriptive easement is enforceable as between the proprietors of the dominant and servient lands at the time the easement arose (at the end of 20 years' use) under the 'rights in personam' exception to indefeasibility of title. So long as the ownership of the servient land has not changed since then, the proprietor of the dominant land can seek a court order directing the proprietor of the servient land to do all things necessary to secure the benefit of the easement (including executing the appropriate documents and lodging them for registration). But once the servient land has been transferred to a new registered proprietor taking without fraud, the easement, not being recorded in the folio of the Register, can no longer be enforced. This alternative view has much to commend it, although its applicability to New South Wales is perhaps reduced by judicial comments in (Golding's) case at 490 and in others … but New South Wales law may differ from other States in this respect.
Both views can be argued to apply to the new s 42(1)(a)(i)."
82 Professor Marcia Neave in her article "Towards a Uniform Torrens System" (1993) 1 APLJ 114, 121, says that whilst in Dobbie v Davidson prescriptive easements prior to the bringing of land onto the Torrens Register were protected, "the situation in relation to easements arising by long user subsequent to registration is not clear." In their "Easements and Restrictive Covenants in Australia" (Butterworths, Sydney, 2002) 2nd ed page 242, Bradbrooke and Neave say that whilst there are arguments in New South Wales for prescriptive easements being recognised, "In all probability prescriptive easements cannot be acquired over Torrens land in New South Wales."
83 There appears to be no reason to doubt that last proposition. However, Mr Sackar says that I should adopt the South Australian view that, provided there has been no change of registered proprietor in a 20 year period, there is nothing to prevent a court of equity compelling the registered proprietor to recognise an easement which would have been created under the old system under the doctrine of the lost modern grant.
84 The so-called "in personam" exception to indefeasibility existed before Frazer v Walker [1967] 1 AC 569, but was certainly given a boost by the decision of the Privy Council in that case. At 585, the Board said that whilst the general principle of indefeasibility must be accepted -
"In doing so they wished to make clear that this principle in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant."
85 Accordingly one must look for a personal equity or perhaps a right at law which can be asserted in an action, the result of which will be to compel the registered proprietor to grant an easement in proper form.
86 In Golding v Tanner King CJ said at 485:
"The grant of or right to an easement which is established by long user must carry with it an obligation on the part of the owner of the servient land at the beginning of the requisite period of user to do what is necessary to give efficacy to the grant or right. That owner cannot be permitted to derogate from the grant by refusing to do so. The benefit of the easement runs from the dominant land and that obligation therefore enures for the benefit of successive owners of the dominant land. … The obligation to do what is necessary to make the easement efficacious includes the execution and lodgement for registration of the documents necessary to obtain registration of the easement. … ".