Treweeke v 36 Wolseley Road Pty Ltd - [1973] HCA 27 - HCA 1973 case summary — Zoe

CTHHCA

Treweeke v 36 Wolseley Road Pty Ltd

[1973] HCA 27

High Court of Australia|1973-07-01|Before: Mason JJ, McTiernan J, Hope J

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Source facts

Court

High Court of Australia

Decision date

1973-07-01

Before

Mason JJ, McTiernan J, Hope J

Source

Original judgment source is linked above.

Judgment (64 paragraphs)

[1]

High Court of Australia McTiernan, Walsh and Mason JJ. Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27

[2]

This is an appeal from the judgment of the Supreme Court of New South Wales pronounced by Hope J. after hearing the application on behalf of Mrs. Treweeke to which the appeal relates. The learned judge refused the application. This Court is asked to set aside the judgment and make an order granting the application.

[3]

The application is brought in relation to a right of way created in 1927. It is a right to utilize a strip of land three feet wide along the north-west boundary - a side boundary - of Mrs. Treweeke's property as a means of access to the beach at Double Bay. She is registered proprietor. The right of way as granted is appurtenant to the allotment on which the premises, no. 36 Wolseley Road, Point Piper, are built. The respondent is the registered proprietor of this property. The existence is shown on Mrs. Treweeke's title to her property and on the respondent's title to its property. They hold an estate in fee simple in their respective properties. Mrs. Treweeke's estate is diminished to the extent of the right of way. The respondent's estate is amplified to that extent. Mrs. Treweeke asked the Supreme Court to grant her one of three orders the terms of which respectively are set out in the summons commencing the application. The orders sought are stated to be alternatives. The first is asked for in terms adopted from s. 89 (3) of the Conveyancing Act, 1919-1969 NSW. The second is asked for in different terms also adopted from s. 89 (3). The third is asked for in terms adopted from s. 89 (1).

[15]

Presumably the complaint on behalf of the respondent company was made only in respect of the swimming pool because no other interference with the right of way appeared to the company's advisers to be actionable. A question which I think arises in respect of the extent of user of the right of way is whether, having regard to the difficulties of passage due to the physical features of servient tenement a right to deviate onto the land within the servient tenement adjoining the strip of land is implied in the grant and whether by reason of the construction of the swimming pool such a right arose. It is said in A Treatise on The Law of Easements, Goddard, 7th ed., at p. 425: " it may happen, and frequently has happened that a way has become impassable from want of ordinary repair, or it may happen that it is impassable through the act, right or wrong, of the owner of the soil. In all these, and possibly in other cases, an important question is likely to arise whether a person entitled to use the way may pass over the adjoining land, or whether he must keep to the path, however inconvenient it may be, or give up his right altogether if the way is absolutely stopped; and it is clear that these questions may arise, both as to private and as to public ways"; and at p. 429: "If a way is rendered impassable by the act of the grantor, the authorities show that the owner of a right of way would be justified in passing over the adjoining ground, provided it belongs to the grantor of the easement, and provided the act of deviation was a reasonable thing in connection with the user of the right". The construction of the swimming pool is not the act of the grantor of the right of way now in question. It is Mrs. Treweeke's act. The persons entitled under the grant of the right would in my opinion be justified in passing over the ground within the servient tenement that adjoins the swimming pool (cases are cited at the foot of p. 429). In my opinion the absence of any complaint by any person entitled to the enjoyment of the right of way does not in the circumstances raise an equity upon which Mrs. Treweeke can obtain either declaration sought pursuant to s. 89 (3). Each declaration is sought in the face of the existing registered title of the respondent to the easement. As regards the request for an order under s. 89 (1) (b), there is no proof of extinguishment of the right of way by agreement, that is by express release. Mrs. Treweeke's case is that extinguishment was effected by acts and omissions amounting to abandonment of the right of way. "As a general rule a release, whether express or implied, must be made by a party whose estate or interest in the dominant tenement is, as regards duration, either greater than or at least co-extensive with the period for which the easement exists": Halsbury's Laws of England, 3rd ed. vol. 12, p. 562, par. 1222. On the subject of "Duration" this principle is enunciated at p. 530, par. 1151: "An easement may be created by express grant for interests analogous in their duration to an estate in fee simple, an estate for life, an estate for years, or even a smaller interest." It is clear from the express grant of the right of way that its duration is intended to be co-extensive with the duration of the estate in fee simple. The relevant "acts or omissions" would need to be things done or omitted by a dominant owner holding an estate in fee simple in the dominant tenement which would amount to abandonment of the right of way or from which abandonment could be reasonably presumed. "Extinguishment by release may be effected either by express release or by circumstances occurring from which a release must be presumed (Crossley & Sons, Ltd. v. Lightowler [1] ). In all cases of release the competency of the releasing party is of the utmost importance ": Halsbury's Laws of England 3rd ed., vol. 12, p. 563, par. 1221. "The extinguishment of an easement by implied release must be based upon the presumed intention of the dominant owner (Crossley & Sons, Ltd. v. Lightowler [1] ). It is a question of fact whether an act amounts to an abandonment or was intended as such": Halsbury's Laws of England, 3rd ed., vol. 12, p. 564, par. 1226. There is no proof of any act or omission on the part of the respondent which has the character of abandonment in relation to the right of way. The same is true as regards previous dominant owners. Mrs. Treweeke's evidence in her affidavit is tendered presumably to prove lack of use of the right of way by the occupants of the premises on the dominant tenement, which, as already stated, are home units. It is not shown that any occupant was competent to extinguish the right of way by express or implied release. It is said in Gale on Easements, 14th ed. (1972), at p. 317: " as an easement, when once created, is perpetual in its nature, being attached to the inheritance and passing with it, some acquiescence on the part of the absolute owner of the dominant tenement is necessary to give effect to any act of abandonment". There is no evidence of such acquiescence on the part of the respondent. It cannot reasonably be presumed that the intention of any occupant of the home units was to abandon the right of way. Residents of the home units gave evidence that they were informed by the agent of the respondent of the existence of the right of way. The evidence, which the learned judge acted upon to make his finding of some use of part of the right of way, prevents an inference from Mrs. Treweeke's evidence that no person from the home units ever went along any part of the strip of land in respect of which the right of way was granted. Mrs. Treweeke relied upon an incident as evidence of abandonment as to which the learned judge made this finding: "In 1933, following an incident in which an occupant of no. 36 Wolseley Road fell down the steep incline near the boundary between the two allotments and damaged a tree on the applicant's land, a fence was built between the two allotments, although it would appear that probably this fence stands on the respondent's land. This fence was a wire fence, and some of the wire in the fence was replaced in August or September, 1967. Half the cost of the original construction of the fence was paid by the owners for the time being of the respondent's land". Assuming the competency of the occupant to release the right of way, I do not think that it is a reasonable conclusion that the building of the fence amounted to an abandonment of the right of way or was intended as such. The evidence shows that it was not expensive; it is movable; and it is within the dominant tenement. A gate could be inserted in the fence to admit of egress from and access to the servient tenement. The evidence of this incident is not, in my opinion, so cogent that it is reasonable to find that the erection of the fence amounted to a renunciation or disclaimer of the right of way. In any case the last-mentioned finding as to user appears to relate to after 1933.

[17]

The important element in the case is non-user of the total length of the strip of land as a way. Part of it was frequently used as far as an opening in the boundary fence to which the strip of land is adjacent. Residents of the home units went through that opening and proceeded from there over the neighbouring allotment to the beach. Their reason for turning aside from the boundary would appear to be that the strip of land was not passable further on. The grant by which the right of way was created imposes no obligation on either the servient owner or the dominant owner to make the strip of land passable. An obligation to do so does not arise at law or in equity. The case is one of mere non-user. It is established that a right will not be extinguished by non-user alone: Seaman v. Vawdrey [1] . In Ward v. Ward [2] , a right of way was held not to have been lost by mere non-user for a period much longer than twenty years, it being shown that the way was not used because the owner had a more convenient mode of access through his own land. (I quote the summary of the facts of the case in Gale on Easements, 14th ed. (1972), at p. 340.) In that case Alderson B. said: [3] "The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption The non-user, therefore, must be the consequence of something which is adverse to the user". Other decisions on the point are Crossley & Sons Ltd. v. Lightowler [4] and Bulstrode v. Lambert [5] . There is no proof of user of the right of way along the total length of the strip of land since the creation of the right of way, a period longer than forty years. "The duration of the period of non-user is only material as one element from which the dominant owner's intention to retain or abandon his easement may be inferred; and what period may be sufficient in any particular case must depend on the strength of the other indications of intention and all other accompanying circumstances. If, however, the period of suspension of user is of very long duration, it appears that the suspension alone may raise a prima facie presumption of abandonment to the extent of throwing upon the person seeking to uphold the right the burden of showing that some indication of his intention to preserve the right was manifested during the period of suspension": Halsbury's Laws of England, 3rd ed., vol. 12, p. 564, par. 1228. (For a review of cases, see Gale on Easements, 14th ed. (1972), pp. 339-343.) The non-user of the total length of the way can reasonably be put down to its precipitous condition at places. It is not reasonable to attribute non-user to renunciation of such a pleasant amenity as a path to the beach at Double Bay. There is ample evidence of the utilization of passable parts of the locus in quo of the right of way as the first stage of daily journeys to the beach by residents of no. 36 Wolseley Road, the dominant tenement. There is evidence of a survey being procured by the owner of one of the home units to determine the precise course of the right of way along the north-western boundary of the servient tenement. There is evidence that the respondent's agent informed some of the people residing at no. 36 Wolseley Road about the existence of the right of way when purchasing their home units. The correspondence which is in evidence proves that the respondent complained to Mrs. Treweeke about the swimming pool when the survey established that it obstructed the right of way. In my opinion, upon the whole of the evidence there is clear proof of the intention of the respondent to retain the right of way. I do not think it can be presumed that release of the right of way occurred at any time before or since the respondent acquired the property, no. 36 Wolseley Road.

[20]

It is natural, I think, to feel some reluctance in accepting and applying two propositions upon which the appellant must rely in order to maintain that she was entitled to an order under s. 89 of the Conveyancing Act, 1919 NSW, as amended. The first is that an easement formally created by express grant may be lost by the grantee or his successors in title, without any express release or surrender and without any written declaration of an intention to abandon it or to give up the benefit of it. The second is that even where the dominant land and the servient land are registered under the Real Property Act and notifications of the existence of the easement appear on the certificates of title relating to both parcels of land, the easement may become liable to be extinguished and may cease to be enforceable by the person for the time being registered as proprietor of the dominant tenement. But the first of those propositions is firmly established and is not in dispute. The second of them must be accepted because of the express provision contained in s. 89 (8) of the Conveyancing Act. That sub-section is applicable in the form in which it stood before the amendment made by the Conveyancing (Amendment) Act, 1972, but the changes then made are not material for present purposes. It makes s. 89 applicable to land under the provisions of the Real Property Act and authority is conferred upon the Registrar-General to make such amendments and entries in the register book as are necessary to give effect to an order made thereunder. The provision clearly contemplates that orders will be made which affect rights which were vested in the registered proprietor, according to the state of the register, at and after the time when he acquired his title to the dominant tenement. It is, of course, the function of the Court to give effect to the intention which it finds to be expressed in the provision, notwith-standing that it may operate as a limitation upon the conclusiveness of the register, which is conferred, as to matters of title, subject to specified exceptions, by the provisions of the Real Property Act.

[21]

In his judgment Mason J. raises the question whether the Court, when the circumstances specified in s. 89 (1) are established, has a duty to make an order or has a discretion to make or to refuse an order. His Honour mentions as a fact which, if the Court has a discretion, might be taken into account, the reliance by a purchaser of the dominant tenement on the existence of an easement as shown by the register. However I am in agreement with his Honour in thinking that in this appeal it is not necessary to resolve this question. As his Honour states, if the ground upon which the application in the Supreme Court of New South Wales was decided is not shown to have been erroneous, the question of discretion does not arise. On the other hand, if this Court holds that it ought to have been found that the respondent or its predecessors in title by their acts or omissions might reasonably be considered to have abandoned the easement, I am of opinion that upon the assumption that the Supreme Court retained a discretion to make or to refuse to make an order, there was in this case no ground upon which that discretion could properly have been exercised against the making of an order. It has been submitted on behalf of the respondent that it came late upon the scene and that the evidence does not support a view that the respondent itself by its own acts or omissions exhibited any intention to abandon the easement and it has been put that the requirements of par. (b) of s. 89 (1) are not satisfied, unless all the persons of full age and capacity from time to time entitled to the easement have shown by their acts or omissions such an intention. If those arguments were accepted, the appellant would fail, not because the Court's discretion ought to be exercised in favour of the respondent, but because of a lack of proof of the necessary requirements for the making of an order. However, they should not be accepted. My reason for not accepting them will appear later in this judgment. But at this point it is appropriate to say that, in my opinion, the mere circumstance that the existence of an easement was noted on the register at the time when the title passed to a new owner would not furnish a reason for refusing, as a matter of discretion, to make an order under s. 89 (1) or s. 89 (3). If the new owner could show, also, that he took steps promptly to make use of the easement, or to claim the right to use it, it may be that the Court could take that into account, together with any evidence which might be provided as to the conduct and attitude of the owner of the servient tenement at the time of the change of ownership of the dominant tenement, in determining whether or not an order should be made. But this is a question which does not arise in this case, in which no such claim was made for several years after the acquisition by the respondent of its title.

[32]

In my opinion, it was not necessary for the appellant to establish that the abandonment of the easement had become complete at a particular date which could be specified as the definite date of its extinguishment. Section 89 (1) of the Conveyancing Act is in a form which provides for an order extinguishing an easement and not, as does s. 89 (3), for a declaration as to the existence or the enforceability of an easement. It may be said, therefore, that in form s. 89 (1) contemplates that the easement continues to bind the land until an order is made. But the terms of par. (b) are such that the making of such an order is dependent upon a conclusion by the Court concerning acts or omissions which have already occurred in the past. The paragraph indicates, in my opinion, that the Court will be able to decide that, at some point of time before the application was made, there have been acts or omissions from which the inference should be drawn that the easement has already been abandoned. This does not mean, in my opinion, that it is essential to be able to fix upon a particular date at which it can be found that that has taken place. But even if this were necessary, the appellant had in my opinion strong grounds for contending that after the swimming pool was erected in 1957 (if not at an earlier time), the respondent's predecessors in title should have been found to have completed their abandonment of the benefit of the easement. The swimming pool constituted an obstruction to the use of the right of way at its lower end. Effective access to it at the upper end had long since been blocked by the fence which has already been discussed. At various places other new obstructions to its use had been created. Then in 1957 the blocking of the strip near the waterfront, to which the right of way was intended to give access, could be regarded as a final step in a process of cumulative obstruction, in which at all times the respondent's predecessors acquiesced. Subject to certain arguments advanced for the respondent to which I shall refer later, I am of opinion that by this time it would have been unreal to treat that acquiescence as being directed only to a temporaty state of affairs that would continue only so long as other means of access to the waterfront remained available. It seems clear that the installation of the swimming pool could not reasonably be considered as a mere temporary obstruction which need cause no concern to the owner of the dominant land, nor could the view be taken that an owner would expect that it would be removed at any time when need might occur to use the right of way. It is true that the lease which the appellant had of the greater part of the land on which the pool was constructed was a lease which at that time had a term of only about three years. But she had held the boat shed lease for some fifteen years and there is nothing to show that the owner of no. 36 Wolseley Road had reason to suppose that the lease would not be extended or that the pool would remain in position for a short time only. There is no evidence that in fact the owner did so suppose.

[37]

But there are some other aspects of the facts to which it is necessary now to refer. I think that it is right to treat the case on the footing that for relevant purposes there was no user of the right of way by the respondent or its predecessors in title. It is true that there is evidence that the occupants of no. 36 Wolseley Road made some use of a concrete path which had been constructed after a block of flats was erected in 1928 on the appellant's land. It was erected four feet or four feet six inches from the boundary of the appellant's land adjacent to the site of the right of way and about twenty-three feet from the boundary between the appellant's land and no. 36 Wolseley Road. Some persons who used the concrete path between the block of flats and the nearby boundary continued on over the land of the appellant in order to reach the waterfront but this was on a course which diverged from the site of the right of way. According to the learned primary judge a path which leads from some steps at the upper end of the concrete path to a strip which gives access from the appellant's property to Wolseley Road "runs for some feet along the site of the right of way, but for the rest runs within no. 34 Wolseley Road". In my opinion such use as was made of this path (which does not seem to have been an extensive use) ought not to be regarded as having been an exercise of the right of passage with which this appeal is concerned. The path where it followed the course of the right of way was wider than the strip over which that right extended, so that it was a matter of chance whether a person walking along that part of the path was walking within or outside the site of the right of way. The path followed that site for only a relatively short distance and it did not of course provide any means of access to the waterfront by means of the right of way. If a person walked along the path beside the flats and then continued to walk over the appellant's land away from the site of the right of way it is difficult to think that he could have meant to go as of right for a short distance along the path and then to continue his journey as a trespasser. As I understand the reasons for judgment of the learned trial judge his Honour did not attach importance to this fortuitous and limited use of a part of the strip over which the right of way was granted and in my opinion it does not cut down the claim of the appellant that there was no user of the right of way and no assertion of a claim to that right.

[40]

In relation to the period after the respondent became owner the evidence stands in a different position. But if I am right in the view that by this time the previous owners had already demonstrated the intention to abandon the easement, then any mistake or doubt in this later period about the location of the right of way has little significance. In any event it does not appear to me that the respondent can place much reliance upon any such mistake or doubt. The affidavit of Mr. Goldstein, the Chairman of Directors of the respondent and a co-owner of one of the units in its building, states that it was when the building was commenced in 1967 at no. 38 Wolseley Road that he found that he was unable to gain access to the beach because the appellant had a swimming pool across the actual right of way and that prior to this the deponent "did not realise" that the swimming pool blocked the right of way. It is not there affirmed that he believed that in going down to the beach across land which was in fact part of no. 38 Wolseley Road, he was making use of the right of way. Dr. Aroney stated, however, that he used what he thought was the right of way and that he assumed that it lay on the north side of the northern boundary of the appellant's property. The survey which he caused to be made revealed the true path of the right of way and the numerous obstructions across it. There are some other pieces of evidence, of a somewhat unsatisfactory kind, as to a mistaken belief on the part of some other occupants of no. 36 as to the location of the right of way. In my view the most that can be said of this evidence is that it affords some explanation of the failure on the part of some of the persons interested in the respondent company and in its building to make or to cause to be made an objection to the obstruction by the swimming pool of the right of way. It has no effect in diminishing the consequences that ought to be attributed to all the events that had occurred up to 1959. Nor does it alter the fact that at the time when the respondent acquired the land and for some years afterwards no attempt was made, so far as the evidence shows, by anyone on behalf of the respondent to ascertain the position of the right of way or any of the facts as to the condition of the land over which it had been granted or as to its availability for use.