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[2009] VSCA 188
Court of Appeal (Vic)
2009-08-31
ASHLEY and REDLICH JJA and KYROU AJA
Original judgment source is linked above.
REAL PROPERTY - Rural land owned by a city council - Adverse possession - Acts amounting to exclusive possession - Intention to possess exclusively - Principles to be applied.
LIMITATION OF ACTIONS - Land - Adverse possession - Limitation of Actions Act 1958 (Vic), ss 8, 9, 14, 18.
1 This appeal arises from a decision of a judge of the Trial Division that Laurice Abbatangelo ('Mrs Abbatangelo' or 'the respondent') had acquired title to a parcel of general law land situated at 581 Bridge Inn Road, Mernda ('the land') by adverse possession against the Whittlesea City Council ('the Council' or 'the appellant'), the paper owner of the land.[1]
2 The appellant contends that the judge erred in finding that the respondent had acquired title to the land by adverse possession. It says that the elements of adverse possession were not made out, and seeks to impugn findings of fact and as to credit made by the judge.
3 For the reasons that follow, we have concluded that the judge's decision was correct and that the appeal should be dismissed.
4 Section 8 of the Limitation of Actions Act 1958 (Vic) ('the Act') provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued. Section 18 provides that at the expiration of that period, the person's title to the land shall be extinguished. As to when the right of action accrues, s 9(1) refers to the date upon which the person whose title stands to be extinguished 'has ... been dispossessed or discontinued his possession', whilst s 14(1) provides that '[n]o right of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as "adverse possession")'.
5 Before us, the parties agreed that the following comments made by Ashley J (as his Honour then was) in Bayport Industries Pty Ltd v Watson aptly summarise the relevant principles:
The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently:
"It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, ... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
(4) The animus possidendi, which is also necessary to constitute possession, ... involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow ... the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner."
To those principles should be added and/or highlighted the following:
6 For the purposes of this appeal, the following additional principles are also relevant:
(a) The reference to 'adverse possession' in s 14(1) of the Act is to possession by a person in whose favour time can run and not to the nature of the possession.[3] The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land for the requisite period without the consent of the owner, with the word 'possession' being given its ordinary meaning.[4] Whether or not the paper owner realises that dispossession has taken place is irrelevant.[5]
(b) Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one's own behalf and for one's own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.[6]
(c) In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. Whilst previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person's dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another.[7] For example, acts done by a putative adverse possessor who lives next to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property.
(d) The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it.[8] The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land.
(e) A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.
(f) Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But whilst a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.[9]
(g) Mere use falling short of possession will not suffice.[10] In some circumstances, a person's use of land may amount to enjoyment of a special benefit from the land by casual acts of trespass and will neither constitute factual possession nor demonstrate the requisite intention to possess.[11] For example, where vacant land abutted a putative adverse possessor's land, occasional tethering of the claimant's ponies on the vacant land, and grazing them there, and occasional playing on the vacant land by her children were held not to suffice.[12] Use and enjoyment of a special benefit and exclusive possession are not, however, necessarily mutually exclusive, for exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession.
(h) There is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner's present or future intended use of the land, as suggested by Leigh v Jack.[13] In Monash City Council v Melville, Eames J reviewed the history of the rule in Leigh v Jack and said the following:
To the limited extent that the rule still applies its effect, now, is as follows. Where the trespasser's acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; [l]ikewise it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner.
However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion.[14]
It was not suggested before us that Eames J incorrectly stated the law in relation to the present limited effect of the rule in Leigh v Jack. We would therefore proceed on the basis that his Honour correctly stated the law even if it was not for the subsequent decision of the House of Lords in J A Pye (Oxford) Ltd v Graham, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh v Jack:
The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. ... The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.[15]
(i) Whilst inconsistent use is not required, it may be a factor, where it is present, which is indicative of factual possession and of an intention to possess to the exclusion of the paper owner.
7 We turn to the relevant facts. Unless otherwise indicated, these facts were either agreed by the parties, or found by the trial judge, and were not in issue on the appeal.
8 The land is vacant general law land, is rectangular in shape, and is approximately half an acre in size. Its southern boundary fronts Bridge Inn Road, Mernda. Its long boundaries are its southern frontage to Bridge Inn Road and its northern boundary.
9 The land was a gift to the Council's predecessor, the Shire of Whittlesea, in July 1908, for the construction of a shire hall. The hall was never built because the Council offices were relocated from Mernda to Epping. The Shire retained the land for municipal purposes. Some time prior to 1950 it planted a mixture of poplar trees along the southern boundary of the land, and gum trees throughout the block.
10 In 1939, according to survey field notes prepared at the time, there were post and wire fences on all the boundaries of the land.
The respondent's property, and the position between November 1958 and October 1970
11 Mrs Abbatangelo and her late husband had four sons, Alfred (born in 1957), Joseph (born in 1959), Robert (born in 1962) and Richard (born in 1967) ('Abbatangelos').
12 In November 1958, Mrs Abbatangelo and her husband bought the property abutting the western, northern and eastern boundaries of the land. That is, the respondent's property[16] enclosed the land on three of its four sides, the exception being the southern boundary which abutted Bridge Inn Road. To the east and west of the land, the respondent's property also fronted that road. The respondent's property, which was under the Torrens system, comprised just under five acres.
13 Mrs Abbatangelo has been the sole registered proprietor of the respondent's property since her husband's death in 1991.
14 The title to the respondent's property initially included a parcel to the west of its current western boundary. Mrs Abbatangelo and her late husband constructed a house on that parcel in 1959 and lived there until approximately 10 October 1970. It was subsequently subdivided from the respondent's property and sold.
15 At the time when the Abbatangelos acquired their property, the boundary fencing of the land, except for the southern fence, was situate on its title boundaries. The last-mentioned fence was misaligned from the title boundary by about half a metre.
16 We pause to note that the Abbatangelos never removed or shifted the position of the fences along the northern and western boundaries of the land, and that at all times from 1958 a southern boundary fence existed. On the other hand, the Abbatangelos did work on the boundary fencing from time to time, just as they constructed and repaired internal fencing on their property.
17 With respect to the boundary fencing of the land, there were two areas of dispute at trial. The first was whether the Abbatangelos had constructed the southern boundary fence which was observed by a surveyor, Mr Peter Mulcahy, in 1969. The second was whether the eastern boundary fence, as the judge found, effectively ceased to exist in the latter 1980s. These areas of dispute were re-agitated before us.
18 At some point, the Abbatangelos installed a gate in the northern boundary fence of the land, close to its western boundary. The gate was sufficiently wide to permit access by a vehicle.
19 Mrs Abbatangelo gave oral evidence that the gate was installed in 1959 or 1960 and the trial judge appears to have accepted that evidence. Two expert photogrammetrists gave evidence, however, that no gate was discernible in the 1960s from available aerial photographs. They agreed, on the other hand, that an aerial photograph taken on 16 March 1987 depicted a possible gate (or at least a gap) in the northern boundary fence. Each of those witnesses gave evidence that none of the aerial photographs were of a quality which allowed them to see any fencing wires.
20 The Abbatangelos kept a variety of animals on their property from about 1960 onwards. Apart from their pet dogs, the types and numbers of animals which they kept on the property changed over time. The land was used by the family's livestock for grazing and for shade, shelter and at times enclosure.
21 From about 1962 to about 1967, the Abbatangelos operated a free range poultry farm on their property and the land, selling eggs. This venture ultimately failed, but some domestic free range chickens remained on the respondent's property and the land.
22 Throughout the period 1960 to 1980, the Abbatangelos always ran some cattle, including a few milking cows and one or two bulls, on their property. This included the period 1970 to 1975, when the Abbatangelos lived in Geelong during the week. The evidence was not altogether clear precisely how many cattle were run on the property at any one time. As we have said, use was made of the land by whatever stock were on hand from time to time.
23 According to Mrs Abbatangelo, over a period which ended by the time that the family moved to Geelong, they ran one or more sheep on their property; likewise, one or two goats. These animals, so long as they were on hand, also made use of the land for the purposes which we have earlier described.
24 The Abbatangelos and family friends held occasional barbeques and social gatherings on the land in the 1960s, 1970s, 1980s and 1990s. Mrs Abbatangelo's children, grandchildren and extended family played on the land. She described the land as a secure place for the children to play.
25 The Abbatangelos placed a bathtub for use as a water trough for livestock towards the north-western boundary of the land. The judge did not make a finding about when the bathtub was installed, and the date of installation was not specifically agreed by the parties. Before us, argument proceeded on the tacit basis that the bathtub was installed relatively early in the Abbatangelos' occupation of the respondent's property.
26 The Abbatangelos maintained the trees and vegetation on the land, and removed noxious weeds and pests. They kept the land clear of fallen timber. They expended money for materials, and laboured, in doing those works. Mrs Abbatangelo's sons gave evidence that fallen branches were collected for firewood, that the grass was mowed as a fire break and to keep the snakes down, and that rabbits were caught to be eaten. It appears that these activities took place throughout the period in which the Abbatangelos lived on the property - this including, to a lesser extent, the period when they lived in Geelong and visited the property at weekends.
27 In 1969, a licensed surveyor, Peter Mulcahy, was engaged by the Abbatangelos to carry out a survey of the respondent's property to support a planning subdivisional application in relation to the respondent's property. Mr Mulcahy was called by the Council at trial. He concluded that the fence on the southern boundary of the land was a different fence from the fence that had been in place in 1939, and that it was in a slightly different position. In 1969, the fence was of post and wire construction on one side and a 'picket fence' on the other side. Mr Mulcahy explained that by 'picket fence' he meant wooden slats rather than steel pickets. Mr Mulcahy further observed that in 1969 there was no fence along the southern boundary of the respondent's property to the east of the land.
28 The 1969 survey field notes prepared by Mr Mulcahy also showed that the post and wire fences on the east, north and west boundaries of the land, as noted in the 1939 survey field notes, were still in place in 1969. Mr Mulcahy described those fences in his survey field notes as 'old' post and wire fences (that is, at least 20 years old).
29 As we have said, it was in dispute at trial whether the Abbatangelos put the southern boundary fence, as it stood at 1969, in place. The judge found that they did so. That finding was challenged before us.
The position between October 1970 and February 1975
30 From about October 1970 until about February 1975,[17] the Abbatangelos lived in Geelong. They returned to Mernda to live in a house which had been built whilst their principal place of residence was Geelong. As at trial, that house was still the Abbatangelo home.
31 The Abbatangelos visited their property and the land at weekends whilst they lived in Geelong. They did so in order to feed and water the stock which they had left behind on both properties and in order to maintain those properties. There was a factual dispute at trial about the frequency of those visits. Mrs Abbatangelo and members of her family gave evidence, which the trial judge accepted, that the family visited virtually every weekend. The judge's finding was not directly challenged in this Court. There was also dispute as to the number of stock which were grazed on the two properties during that period in question. Mrs Abbatangelo's evidence was particularly inconsistent in this connection.
32 As at trial,[18] Mrs Abbatangelo's residence and outbuildings lay to the west of the land, but more of her property lay to the north and east of that land. The driveway leading to her residence was a short distance west of the western boundary of the land, and ran parallel to the western boundary fence of the land. A post and rail fence and a narrow row of trees separated the driveway from the land. The respondent's property to the north and east of the land was unimproved land on which was conducted family or domestic farming.
33 There is a dam at the eastern end of the respondent's property, which lies east of the land. One of Mrs Abbatangelo's sons gave evidence that, prior to the last ten years, it had held a lot of water. He said that livestock kept on the respondent's property during the period that the family lived in Geelong drank from that dam and from troughs placed on the land and the respondent's property by the Abbatangelos.
34 Some time after 1975, a white post and rail fence was built along the southern boundary of the respondent's property, between the western boundary of the land and the eastern side of the respondent's driveway. This fence did not extend east along the southern boundary of the land - a matter upon which the appellant sought to rely.
35 In about 1975, a family member purchased a horse. Thereafter the family ran horses on their property, and occasionally bred foals. Between 1975 and 2007, there were not less than two and up to about eight horses on the property at any one time. Use was made of the land by the horses for the purposes which we have described in respect of other Abbatangelo stock. Horses were also ridden on the land.
36 Mrs Abbatangelo and other members of her family gave evidence at trial that the family had removed the post and wire fence along the eastern boundary of the land in 1986. The Council disputed that evidence. In essence, as will be seen, the judge accepted it. The Council complained about that finding in this Court.
37 On 5 October 1978, the Abbatangelos lodged a planning application with the Melbourne and Metropolitan Board of Works. They sought a permit to subdivide their land. The Board refused to grant a permit, and on 20 December 1978 the Abbatangelos appealed to the Town Planning Appeals Tribunal.
38 Both the planning application and the appeal documents included plans which showed the respondent's property and the land and their dimensions, with the latter marked 'NIT' - that is, 'Not in Title'. The Council argued that this notation told against the Abbatangelos having taken possession of the land with the requisite intent.
39 In a written statement to the Tribunal dated 28 March 1979, prepared by Claire Stephenson on behalf of the Shire of Whittlesea in respect of the appeal, Ms Stephenson stated (referring to the land): 'Directly adjoining the proposed allotment to the east, is a vacant allotment owned by the Shire of Whittlesea, which has been set aside for proposed Municipal purposes'. The Council sought to rely upon this statement as an assertion of ownership that was not questioned by the Abbatangelos at that time.
40 In 1992, a Council employee, John Draper, attended the respondent's property to inspect it in connection with the flooding of a spoon drain.[19] He spoke with Mrs Abbatangelo and asked if she knew who owned the land, because he needed permission to enter privately owned land. Mrs Abbatangelo told Mr Draper that the land was owned by the Council. There was evidence that Mr Draper was shocked and surprised by this revelation. The Council sought to characterise Mr Draper's entry upon the land as entry by the owner without requiring permission; and to rely upon what Mrs Abbatangelo told him as a contraindication that the Abbatangelos had taken possession of the land with the requisite intent.
41 Evidence was given by Arthur Christian on behalf of the Council. Mr Christian was about 75 years of age and resided at 850 Bridge Inn Road, Doreen, approximately three kilometres from the land. He had lived at Doreen all his life and his family has lived in the area since the 1850s. He gave evidence that a number of farmers in the Whittlesea area, including himself, traditionally grazed their animals on undeveloped rural parcels of Council land without first obtaining the Council's permission. As will be seen, the trial judge concluded that his evidence in this connection, after it had been subjected to cross-examination, did not assist the Council.
42 Mr Christian gave other evidence. The learned judge summarised that evidence, and expressed his conclusions in respect of it, this way:
His evidence was that he lived some two or three kilometres from the disputed land all his life and that he had always been familiar with the disputed land as belonging to the Council. That may not be surprising given what his father told him, although no evidence was given about him having turned his mind to the question one way or another at any time for any particular reason in the 50 years since his father's death. He has driven past the disputed land some two or three times a day for the last 20 or 30 years and has doubtlessly observed the disputed land as part of the general features apparent to a motorcar driver or passenger. He did say that he saw horses on the disputed land but not in great number and that he might have seen a couple of cows at an early stage in 'the piece' (by which I assumed him to mean some time in the early sixties). Counsel for the defendant concluded that it was obvious to 'his [that is, Mr Christian's] farmer's eye' that the disputed land was not being farmed, that it was 'dead as a door nail', and when asked for his opinion about the fence on the southern boundary described it as 'average' (whatever that might mean). These generalised conclusionary statements are of little assistance in reaching a decision. Mr Christian was a farmer of a very different kind from any who might undertake rural activity on the Abbatangelo property with or without the disputed land. In comparison to the five acres or so under the control of the Abbatangelos, his property in the area was once about 300 acres and now, although reduced, is still 150 acres. The 'farmer's eye' referred to by counsel for the defendant is understandably a different eye from that of the late Mr Abbatangelo, Mrs Laurice Abbatangelo or any of their sons in their activities in Mernda.[20]
43 Five current or former neighbours of the respondent (including Vincent Hanlon, who worked for the Council) gave uncontested evidence that, based upon certain observations, and the conduct of the Abbatangelos, they had assumed that the land was owned by the respondent. The respondent relied upon that evidence at trial. The judge paid it a little attention. In this Court, it was contended for the appellant that the evidence did not assist the respondent.
44 In 2004, Mrs Abbatangelo learned that the Victorian Government planned to introduce legislation to abolish adverse possession claims against land owned by municipal councils. At her request, her solicitors wrote to the Council on 14 September 2004 giving notice that she would be making an adverse possession claim in respect of the land. The Council's solicitors replied by letter dated 24 September 2004. They stated that the Council would vigorously oppose any application to acquire the land by adverse possession. They also requested that a horse that was grazing on the land be removed.
45 In October 2004, the Council erected a star picket and wire fence on the eastern boundary of the land and installed a chain and padlock on the gate in the northern boundary fence. Mrs Abbatangelo removed the fence.
46 These events occurred against the backdrop of amendments to the Whittlesea Planning Scheme which were approved in 2004 and resulted in a proposed town centre being located in close proximity to the respondent's property and the land. Unsurprisingly, the value of both properties increased dramatically.
47 In December 2004, Mrs Abbatangelo commenced this proceeding against the Council, seeking a declaration that she had acquired title to the land by adverse possession.
Summary of acts of adverse possession relied on by Mrs Abbatangelo
48 At trial, Mrs Abbatangelo relied upon the following acts as establishing adverse possession of the land from the time her family commenced residing on the respondent's property in 1958:
(b) maintenance of fences on the boundaries of the land, including the southern boundary fence, without seeking financial contribution from the Council;
(c) use of the land for grazing, shade, shelter and at times enclosure of the variety of animals kept by the Abbatangelos from approximately 1960;
(e) maintenance of trees and vegetation, including mowing of grass, and removal of noxious weeds and pests - foxes, snakes and rabbits;
(f) the clearing of fallen timber and maintenance of a fire break;
(g) the expending of money, and the provision of labour, to carry out the various kinds of work on the land;
(h) the holding, from the 1960s, of occasional barbeques and social gatherings on the land;
(i) the playing by Mrs Abbatangelo's children, grandchildren and extended family on the land;
(j) the construction of children's swings and a rudimentary cubbyhouse-like structure[21] on the land;
(k) the removal of the fence on the eastern boundary of the land in approximately 1986; and
(l) use of the land for sporting and recreational activities such as horse riding, archery, football, horse training, rabbit shooting, bike riding, 'paddock bomb' driving and cricket.
49 The trial judge set out the applicable legal principles in considerable detail. As his Honour's statements of the principles were broadly consistent with our summary of the principles, we will not repeat all that he said. We will, however, later refer to the statements insofar as the appellant submitted that his Honour misunderstood the principles or misapplied them to the facts of this case.
50 His Honour held that there was a continuous and sufficient period of adverse possession commencing either by the late 1960s or, at the latest, by 1975.[22]
51 As to subjective intention, so far as it may be relevant, his Honour stated: 'The evidence of Mrs Laurice Abbatangelo on the question ... was best encapsulated when she said that the family used the disputed land over time as if it was one of [their] own [lots].'[23]
52 His Honour referred to difficulties with the evidence such as a lack of precision as to the dates when some events occurred. He held, however, that 'some general conclusions may safely be drawn about the nature of the use of the disputed land and the broad time periods of that use'.[24]
53 He found that the Abbatangelos bought their property for the purpose of conducting a family farm on a non-commercial scale, and continued:
There was clear evidence that over many years the Abbatangelos had horses, undertook some horse breeding, had cattle, had milking cows, had one or possibly two goats, had one or more sheep and had free range hens. Some cattle seem to have been there continuously between 1960 and 1980 including during the period in the first four or so years in the 1970s when the Abbatangelo family were residing in Geelong and travelling regularly each weekend to the Abbatangelo property. ...
... I am satisfied that the late Mr and Mrs Abbatangelo used their property as a small family farm ... I am also satisfied that there may have been some lessening of their activity during the period in which they resided ... 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. ... 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.[25]
I do not think that the Abbatangelo's use of the disputed land can be described as an act of mere grazing not amounting to an act of possession. The incorporation of the disputed land into the Abbatangelo property and into the activities of the Abbatangelos was much more complete. The construction of the gate in the north-western corner of the disputed land in 1959 or early 1960 may not, when first installed, have been sufficient to prove an intention to possess the occupied land and to exclude others from it, but it is a relevant circumstance in the overall matrix of fact. More important, however, is the constant restoration and construction of fences throughout the property including the sides of the disputed land. This work, on the evidence in this case, is much more than the 'rough repairs' considered insufficient in Powell v McFarlane. In this case the work undertaken by the late Mr Abbatangelo and his sons was thorough, systematic and constant.[26]
55 His Honour extensively reviewed the evidence pertaining to the state of the boundary fences of the land from time to time. He noted conflict in the evidence concerning the southern boundary fence. In resolving a part of that conflict, he gave considerable weight to the evidence of the surveyor, Mr Mulcahy.[27] He concluded that -
It is clear beyond doubt that the fence on the southern boundary ...was put there in its present form by one or other of the members of the Abbatangelo family and not by the Council or some other person with an entitlement to the land.[28]
It is ... plain that the fence in 1969 was not as it had been in 1939 and the inescapable inference is that it was the late Mr Abbatangelo's work that was recorded in 1969 survey.[29]
56 His Honour characterised the significance of the southern boundary fence this way:
The fencing on the southern, that is the street, boundary of the disputed land over the years did, in my view, amount to an act of possession and exclusion. The fact that it might, from time to time, or indeed even always, have been different from the fences on either side of the disputed land does not detract from the nature of a fence as a sign to all who see it not to enter. That it might be easy to climb through that particular fence, or that kind of fence (as it was also easy to climb through the other and different fences on the Abbatangelo property), does not detract from the signal which the existence of the fence would ordinarily convey, namely, that the land behind it had been enclosed by someone and from everyone else. In addition, I accept that the other fences, such as they were from time to time, enabled the disputed land to be used by the Abbatangelo family, and for present purposes Mrs Laurice Abbatangelo, as an integrated part of the land over which they had possession and from which they intended to exclude others.[30]
57 We turn to evidence concerning the eastern boundary fence. At trial, as we have said, there was some dispute as to whether, when, and to what extent the post and wire fence along the eastern boundary of the land ceased to exist. Mrs Abbatangelo claimed that the fence fell into disrepair, and that its remnants - that is, fallen posts and wires - were removed in 1986. The Council conceded that horses could be ridden onto the land from the eastern part of the respondent's property from about 1986. On the other hand, it led evidence from an expert photogrammetrist, Andrew Watts, that, based on composite aerial photos, a fence existed on the eastern boundary of the land in 1989, 1996 and 1998. Further, an expert photogrammetrist called by Mrs Abbatangelo, Rohan Potter, gave evidence of the presence of at least sections of a fence in 1987.
Much time was spent in seeking to determine whether or not there was or was not a fence at different points of time and whether or not it was or was not removed in or around 1986. In the end the many intricate and intriguing factual enquiries about this fence seemed to me to be largely irrelevant to the disposition of the case. ...
In the end, whether or not the fence was pulled down in 1986, is more a matter relevant to the credit of members of the Abbatangelo family who gave evidence than to the disposition of the issues in dispute. However, if it matters, I am not inclined to disbelieve the evidence given by each of the family members about the existence and removal in or about 1986 of the fence on the eastern boundary. The evidence against what they said is secondary in the sense that it is an interpretation made by somebody from aerial photos looked at through a machine, a stereoscope, designed to give a composite of two images a three dimensional impression as if they were one. I have no doubt that the conclusion drawn by these experts is a proper interpretation to be made from the images but that interpretation is something which I must evaluate as against the oral testimony of the people who lived there and gave evidence about what they saw and did.[31]
59 After discussing the reliability of the evidence given by Mrs Abbatangelo and members of her family and concluding that 'they were truthful witnesses giving evidence as accurately as they could about the matters as they could recall them',[32] his Honour continued:
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 [to] 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.
A similar issue arose for consideration in Traykof v Shanco Holdings Pty Ltd where the photogrammic evidence of a Mr Watts was described as "the only objective evidence of the land" in the years in question. In that case the decision of the trial judge was overturned because it could not be reconciled with the objective photogrammic evidence. In this case I am faced with the evidence of Mr Watts being in stark contrast with the direct evidence of individuals who should know the facts (but whose evidence I am urged not to accept), the inferences from the evidence of third parties (for example Mr Hanlon) or from events (for example the injury to the horse) and conduct (for example the construction of a fence by the council in 2004) and my own inspection of aerial photographs (but without the 'benefit' of the impact of the creation of a three dimensional impression from other aerial photographs viewed through a stereoscope). The photographs used by Mr Watts for his evidence do not show a fence after 1986 without the assistance of the stereoscope which created a three dimensional impression when two photographs were put side by side and looked at through the viewer. The evidence of Mr Potter was less positive than that of Mr Watts in expression or as primary focus of inquiry. In those circumstances, if it mattered, I would prefer the direct evidence of witnesses which accords with my own observations from photographs to the indirect interpretation by Mr Watts from impressions manufactured by aid of a stereoscope.[33]
60 By way of conclusion in respect of the issues concerning fencing and integration of the land, the learned judge said this:
It may not be possible to determine the precise date at which the disputed land was integrated within the Abbatangelo property but it was by 1975. It had probably become so by the late 1960s (if not earlier) as may be seen by a number of instances, including the evidence of Mr Robert Abbatangelo chasing cows out of the disputed land and into what was used as a milking shed when he was about seven years of age: he was born in 1962. ... By at least 1975 and probably much earlier the disputed land was part of the property possessed by the late Mr Abbatangelo and Mrs Laurice Abbatangelo and intended by them as theirs to the exclusion of others. Fences were built on its boundary with the outside world (namely, on the street boundary) and those fences on the boundaries between the Abbatangelo property and the disputed land itself were part of the way in which both properties were used in the activities of the Abbatangelos. Fences were constantly built, removed, replaced and maintained.[34]
61 His Honour also commented that '[t]he Abbatangelos constantly maintained the disputed land in a way which may be contrasted with the Council's inactivity in relation to the disputed land'.[35] He referred to the maintenance of trees and vegetation, the removal of noxious weeds and pests, the shooting of foxes and rabbits, the fact that the Abbatangelos looked after the land (including expending money in materials and labour) without requesting the Council to extend its parks and gardens maintenance services to the property, and the fact that children and grandchildren of the family played on the land as if it was theirs. He said that the many activities of the Abbatangelos, viewed together, demonstrated 'how completely the disputed land had come to be treated as theirs'.[36]
62 The judge also concluded that 'if it be relevant', a number of neighbours seemed to be of the view that the Abbatangelos used the land as an integrated part of the land over which they had possession and from which they intended to exclude others.[37] His Honour noted that the neighbours' evidence of an assumption that the land was owned by Mrs Abbatangelo - evidence to which we have earlier referred - had been given without contest.[38]
63 His Honour then considered and rejected a number of matters which could have told against Mrs Abbatangelo's claim to have acquired title by adverse possession.
64 He rejected the Council's submission that the fence on the western boundary of the land was a sign of demarcation and exclusion of the land from the respondent's property. He noted that that fence was different in appearance from the fences on the other title boundaries between the respondent's property and other neighbours, and that it appeared to be a feature fence, serving an aesthetic or functional purpose rather than marking a boundary. He noted also that the fence joined another feature fence which was wholly within the respondent's property, that the Abbatangelos had painted both sides of the fence, and that they had never sought payment from the Council of half the cost of this or any other fencing work.
65 Next, the Council had submitted at trial that the land did not have the appearance, from the 1960s, of being part of the respondent's property. That submission was based upon the increasing density of the trees on the land over time (by contrast with the appearance of the respondent's property) and upon a difference between the southern boundary fences of the respondent's property to the east and west of the land and the fence along the southern boundary of the land itself. His Honour held that these differences in appearance were not significant for the following reasons:
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 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.[39]
66 The learned judge referred to other items of evidence going towards establishing possession with the requisite intention. They included 'possibly the construction of children's swings and rudimentary structures that might possibly qualify for the description as a cubbyhouse', and the existence of the bathtub trough, which he described as 'a relatively permanent item placed on the disputed land as a visible demonstration of use by the Abbatangelo family of the disputed land and, to that extent, an assertion of entitlement'.[40]
67 His Honour noted that an adverse possession claim may fail if the possession relied upon is not continuous. But he rejected the Council's contention that there had been a break in possession during the early 1970s when the Abbatangelos resided in Geelong, for the following reasons:
The evidence of each of the now adult Abbatangelo children, and of Mrs Abbatangelo, was that they did travel to Mernda from Geelong each weekend and that they would frequently stay in the homes of relatives who lived nearby. Inconvenient as such a trip might be for many, it is certainly not an improbable or unlikely occurrence. I accept their evidence that they did travel to Mernda most, if not every, weekend from Geelong and that one of the reasons they did so was because there was still some livestock that needed some looking after. It was accepted that the livestock by that stage had been scaled down substantially, but the relocation to Geelong was not permanent and they resumed physical occupation in about 1974. There is nothing about this move to suggest a permanent departure from the property in Mernda, which was retained and visited frequently. I accept that throughout the period nothing had changed fundamentally in relation to their possession, use and manifest intention in relation to the disputed land, the Abbatangelo property or the combination of the two other than to have reduced the physical frequency of actual presence as a temporary arrangement until, ultimately, the present house was constructed and the family was able to return.[41]
68 The Council also relied at trial upon Mr Draper's 1992 visit, in the ways to which we have referred at [40]. The learned judge accepted Mr Draper's evidence about his entry onto the land and his conversation with Mrs Abbatangelo. He held - and the finding was not challenged in this Court - that the entry did not constitute a resumption of possession by the Council. Then, with respect to what inferences concerning Mrs Abbatangelo's subjective intention might be drawn from the conversation, he said:
[I] ... do [not] think it possible to regard what Mr Draper recounted as what he was told by Mrs Laurice Abbatangelo as evidence of a lack of intention to exclude the Council from the disputed land. Mr Draper's evidence was that he needed permission to effect works which according to him had been sought by her. Her attitude about him entering the land and the works being effected is consistent with that narrow purpose and it is inconceivable, nor was it suggested, that Mr Draper's discussion with her was couched or intended in broader terms or to broader effect. In any event, by 1992 there had, in my view, already been a continuous period of 15 years adverse possession if not commencing from the late 1960s, then by 1975 when, on any view, the Abbatangelo family had resumed occupation of the property in Mernda and the late Mr Abbatangelo took down and rebuilt fences.[42]
69 The Council also contended at trial that the statement of Ms Stephenson to which we have referred at [39] constituted an assertion of ownership of the land. The judge rejected that contention. He held - and the finding was not challenged in this Court - that Ms Stephenson's statement did 'not ... amount to an assertion of title nor an attempt of resumption of posses[43]on'.43
70 The judge noted that a claim for adverse possession will fail if the possession is by the permission of the paper owner. He considered Mr Christian's evidence about permitted private grazing on Council land. He accepted the witness's evidence that there was a general practice in the Whittlesea area of the Council permitting grazing on some Council land. He presumed that the practice did not extend to all of the Council's land, such as shire offices, parks and gardens and significant roadways. He found, specifically, that the practice did not extend to the land here in dispute. He held that a particular example which the witness had given of permitted grazing on Council land concerned land which was not directly comparable with the disputed land. The example did not provide a secure foundation for a conclusion that the practice covered multiple kinds of use and activity on land such as the disputed land. He explained his conclusion this way:
The particular example he gave was of a roadway owned by the Council which had been fenced off and used, it seems, partly by him and partly by a neighbour. His evidence about the parcel of land, on Orchard Road, was incorrectly located by him; that is, in questions designed to locate the road by reference to Bridge Inn Road (and, therefore, how comparable with the disputed land the example might be), Mr Christian's evidence put Orchard Road in clearly the wrong place. He was recalled to court to clarify both the error and the reason for the error but, in my view, I was left with a substantial doubt about the precision with which he was locating the land in respect of which the practise was said to be applied in his case. Orchard Road is not off Bridge Inn Road (as he had said) but off Yan Yean Road and the particular portion of Orchard Road in question is well off either road and not visible from them nor easily accessible. It would not be wrong to describe it as a relatively secluded section of land in the back blocks (as they were until some very recent subdivisional redevelopment), making it quite an unsuitable comparison with the disputed land which is located on a main road and which is clearly visible from it.[44]
71 His Honour also refused to rely upon evidence given by Mr Christian of his observations about the Abbatangelos' use of the land as a basis for rejecting the adverse possession claim. We have set out that part of his Honour's reasons at [42].
73 In our opinion, the trial judge was correct to hold that the appellant's title to the land had been extinguished by the respondent's adverse possession. For the reasons which follow, the respondent demonstrated both sufficient acts of factual possession and a manifest intention to exclusively possess the land for the necessary period. On a tenable view of the evidence, actual possession with requisite intent was continuous from the early 1960s until 2004. But even if the better view was that possession was broken during the period when the Abbatangelos resided in Geelong - that is, between about October 1970 and February 1975 - there was, we consider, continuous possession with requisite intent for more than 15 years from the time that they returned to Mernda. From that time, the Abbatangelos engaged in a process of reinforcing and building upon what they had previously done in relation to the land. On the basis that time began to run no later than the end of February 1975, the appellant's title was extinguished at the end of February 1990 at the latest.
74 In arriving at our conclusions, we have rejected a number of submissions advanced for the Council. Those submissions can be grouped into five general categories: (1) submissions about factual possession; (2) submissions about intention to possess; (3) submissions about particular aspects of the legal principles which inform adverse possession; (4) submissions about factual findings made by the judge and findings as to the credit of witnesses; and (5) a submission about the judge's failure to conduct a view. We will deal with the submissions in that order.
75 As intention to possess is usually inferred from acts of possession, the appellant understandably relied upon similar evidence and submissions in attacking the judge's findings with respect to both elements. Except where necessary, we will deal with overlapping submissions and evidence in respect of one or other element on the basis that our conclusions will apply to both.
76 Finally before embarking upon our analysis of the Council's submissions, we pause to note that in this Court senior counsel for the appellant conceded that the Abbatangelos had not acted surreptitiously or stealthily in the manner in which they used the land.
77 It was submitted for the Council that the respondent had not shown sufficient acts of possession to establish that she had factual possession. Reliance was placed upon the language of one American case, it being submitted that the respondent did not unfurl her flag and keep it flying on the land,[46] because none of her dealings with the land would have arrested the appellant's attention. The Abbatangelos' acts, it was submitted, were not sufficiently obvious to give the Council the means of knowledge that the respondent had entered into possession of the land adversely to its title and with the intention of taking possession. The appellant relied upon the following circumstances:
(a) The respondent did nothing to change the pre-existing distinctive - that is, the treed - appearance of the land.
(b) The respondent constructed a post and rail fence along the western boundary of the land in 1975. The same style of fence was constructed by the respondent along the Bridge Inn Road boundary of the respondent's property to the west and, some time later, to the east of the land. But that style of fence was never extended across the southern boundary of the land. The current fence along that boundary was a post and wire fence, essentially in its original condition. It was not relevant who had constructed that fence. What was relevant was that the fence was distinctively different from the more impressive style of the southern boundary fences to the east and west of the land. Anyone looking at the properties from the road would not gain the impression that the owner of the property on either side of the land was asserting exclusive possession over the land.
(c) The presence of one or two animals grazing or sheltering under the trees, or the sight of children playing on the land, were not circumstances that would arrest attention.
(d) The respondent did not make any improvements to the land.
78 In response to questions from the Bench about what further acts could have been done by the respondent and her family in order to establish possession, senior counsel for the appellant said that the land might have been cleared and a rotunda, a tennis court, a meshed enclosure for chickens or a holding pen for pigs constructed, or a steel mesh or paling fence might have been built along the boundary of the land. In our view, for the reasons discussed below, none of these examples were apt having regard to the circumstances of the Abbatangelo family, the nature, position and characteristics of the land and the respondent's property, and the uses to which the Abbatangelos chose to put the land.
79 The answer to the question what acts of possession are sufficient to show factual possession always depends upon the particular facts and circumstances of the instant case. These include the circumstances of the putative adverse possessor. In this case, those circumstances included the fact that the respondent's property effectively enclosed the land on three of its four sides, whilst its fourth side faced the road. It is rare for there to be something so clear as a literal unfurling of a flag or the erection of a 'keep out' sign. Nor is there any general requirement that structures be erected on the land, although the erection of structures may assist in establishing factual possession. Similarly, it cannot be said that grazing stock on land, of itself, will never be sufficient to establish possession. Whether it is sufficient of itself, or in combination with other matters, invites consideration of all the circumstances of the case.
80 In this case, the respondent's failure to change the appearance of the land, particularly in relation to the trees, did not in our opinion betoken an absence of sufficient acts of possession. It was explicable in terms of the amenity provided by the treed land, which provided shade and shelter for stock and facilitated its use and enjoyment by children and for social occasions. Supposing that there had been a single owner of the respondent's property and the land, we consider it quite likely that such owner would have made the same use of the land as did the Abbatangelos.
81 We next consider that maintenance of the southern boundary fence by the Abbatangelos was, in combination with the other circumstances, indicative of an exercise of control and exclusive possession in the requisite sense. This is so despite the difference in appearance between that fence and the southern boundary fences of the respondent's property on either side of it. Joseph Abbatangelo gave evidence that no post and rail fence was ever constructed along the southern boundary of the land '[m]ostly because there was a lot of trees lined up along that fence line there and we had a lot of trouble trying to dig holes for posts because of the roots. We would always encounter roots just below the surface'.[47] The witness said that no post and rail fence was ever constructed along the eastern boundary of the land for the same reason. It was not suggested before us, when senior counsel for the respondent drew that evidence to our attention, that what the witness said was contested below. Additionally, the judge commented that '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'.[48] So, for more than one reason, nothing was to be made of the particular style of fence along the road frontage of the land
82 Also capable of bearing upon proof of an assumption of exclusive possession of the land, in our opinion, was the evidence given at trial by the five neighbours of the Abbatangelos to which we referred at [43]. The appellant sought to minimise the significance of that evidence by submitting that some or all of them had been invitees on the land, and so did not base their stated belief solely upon their observations of the physical appearance of the land from the road. Even if the last aspect of that submission be accepted, we do not accept its totality. The witnesses spoke in terms of the respondent appearing to be the owner of the land. That conclusion was necessarily based upon their observations of the way in which the Abbatangelos made use of - or, possessed - the land. At least some aspects of that use would have been observable from the road. Further, the act of the Abbatangelos in inviting some or all of the witnesses onto the land was in itself an implicit assertion of the respondent's dominion over the land.
83 Before us, the appellant sought to rely upon Mr Draper's evidence to show that a Council employee held a belief at a relevant time that the respondent was not the owner or possessor of the land. The trial judge accepted Mr Draper's evidence that he was 'shocked' to be told, and 'was surprised that [the land] was a Council block of land'. The witness's evidence, in short, did not support a conclusion that the asserted belief was held.
84 The Council also relied upon part of Mr Christian's evidence to show that he held a belief at a relevant time that it was the owner of the land. We have set out the gist of the particular evidence at [42], together with the judge's finding in respect of it. We see no reason to disagree with his Honour's conclusion. Mr Christian's evidence, put at its highest, was apparently founded on what he had been told at a young age by his father. It was not consistent with the uncontested evidence of the five neighbours, which was based upon their own observations and[49]xperience.49 Moreover, Mr Christian also gave evidence that over the past 50 years the land had been 'joined' to another property - that is, the respondent's property.
85 The Council further submitted, given the trial judge's acceptance that Mr Draper did not know who owned the land, that his Honour should have inferred that it was not evident to Mr Draper that it was part of the respondent's property. Even if such an inference, based upon a single incident, had been available, it would not assist the Council. The incident occurred after the extinguishment of its title. In any event, Mr Draper's single experience in connection with the land was not consistent with the preponderance of the evidence given by the neighbours.
86 The Council submitted also that Mr Christian had grown up in the area, knew the land as 'Council Land', had regularly driven past the land and had observed little activity on it. For those reasons, the judge should have inferred that Mr Christian had no reason to believe the land had stopped being 'Council Land'.
87 We accept that Mr Christian did believe, at relevant times, that the land remained Council land. His understanding, from childhood, that the land was Council land, his evidence about permitted private grazing of Council land, and his evidence that he had observed little use of the land by the Abbatangelos over the years, made it inevitable that such was his belief. But in more than one respect, as we have pointed out, the factual underpinning for such a belief was not well-founded; and so little could be made of it.
88 The appellant submitted that the placing of the bathtub stock trough on the land should not be given great weight because there was no piped water connected to it. All that the Abbatangelos did was hand-fill it from time to time. In our view, that submission failed to take account of the Abbatangelos' position. They resided on the adjacent property. The trough was positioned close to the boundary of the land, and so could be observed, and filled as required. There was no need for a piping system. The arrangements for filling the trough were rudimentary, adequate, and we think not unusual. In our opinion, the placing of the trough on the land was a circumstance which, viewed in context, considerably aided the respondent's case.
89 The appellant also submitted that the respondent had not established exclusive possession because nothing that the Abbatangelos had done on the land had ever prevented the appellant or anyone else from entering it without going into the respondent's property. The appellant argued that the land could at all times have been accessed by climbing through the wire strands of its southern boundary fence.
90 We accept, for sake of argument, that a person could have gained access to the land in the manner described. But we do not accept that this carried the consequence for which the Council contended. It is unremarkable, and says little to resolve the real issue in the case - that is, whether the respondent had exclusive possession of the land for a continuous period of 15 years without the appellant's consent[50] - that a person would have been able to access the land by climbing through a fence of essentially rural construction. It may be observed, moreover, that vehicular access was only possible through the gate on the respondent's property.
91 The Council also submitted that his Honour did not make a direct finding, as it was contended he was required to make, that the appellant had been dispossessed, or had discontinued possession. The criticism was unfounded. As Pye makes clear, dispossession of the paper owner is established by the putative adverse possessor going into possession of the land for the requisite period without the consent of the owner. His Honour held that the Abbatangelos had exclusive possession and control of the land without the Council's consent for continuous period of 15 years. That was sufficient to establish factual possession.
92 Another argument advanced for the Council was that there was no use of the land by the Abbatangelos which was inconsistent with the appellant's rights as the paper owner. Senior counsel for the appellant conceded that inconsistency may not be strictly necessary, but maintained that there will be very few cases where adverse possession is established without inconsistent use. In our view, inconsistent use need not be proved in order to establish factual possession. What is important is whether the requisite degree of control and exclusivity was present. In this case, for the reasons we have already given, there was such control and exclusivity.
93 A still further submission advanced for the Council was that the judge had erred in relying on the respondent's 'integration' of the land and treating it as synonymous with factual possession. The judge also erred, it was said, by equating use with control, non-use with dispossession or discontinuance of possession, integration with exclusion, and mere use with possession. In our view, there was no substance to these submissions. On a fair reading of the judge's reasons, his Honour understood what the law required to establish factual possession and applied the appropriate principles in making his findings. For the reasons we have already given, those findings were correct in relation to factual possession.
94 The Council submitted that the trial judge misstated the law on intention to possess because he failed to refer in full to what Ashley J said in Bayport. In particular, the appellant criticised the trial judge for not referring to the following passage in Powell v McFarlane,[51] which was quoted in Bayport:
If his acts are open to more than one interpretation and he had not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.[52]
The appellant submitted that the consequence of the alleged error was that the judge gave undue primacy to his findings about the respondent's subjective intention and failed to give sufficient consideration to whether her acts indicated a manifest unequivocal intention to exercise exclusive control.
95 In our opinion, the appellant's criticisms of the trial judge's analysis were unfounded. A fair reading of his Honour's judgment indicates he understood what the law required in relation to the intention to possess and that he correctly applied the relevant law to the facts. In particular, contrary to the appellant's submission, his Honour did not err in finding that ease of access through the fence on the southern boundary of the land did not detract from the nature of a fence as a sign to all who saw it not to enter. As we have said already, the fact that a person, including an employee of the Council, could have physically entered the land on foot by stepping through the wire strands was neither determinative nor necessarily of central importance. The question was not whether the respondent had not done her best to exclude the appellant - because, for example, a different type of fence would have been more effective for this purpose - but whether it could be inferred from all of her acts that she intended to exercise custody and control of the land on her own behalf and for her own benefit.[53] The trial judge, in substance, asked himself that question and answered it in favour of the respondent, as he was entitled to do on the evidence.
96 The appellant submitted that the respondent and her sons had admitted that many of the acts of use were undertaken for the purpose of providing special benefits to the respondent rather than being conducted with an intention of taking exclusive possession of the land. The examples given by the appellant were the grazing of livestock and the acts of maintaining trees and vegetation, removing noxious weeds, shooting rabbits and keeping down snakes. It was said that the Abbatangelos used the firewood, consumed the rabbits, and removed snakes and noxious weeds to protect their livestock and for the safety of the family; and that these acts were not accompanied by an unequivocal intention to exclusively possess the land.
97 In our view, those submissions significantly understated the nature and extent of the Abbatangelos' use of the land, misunderstood the references to 'special benefit' in the authorities and misstated the evidence of the respondent and her sons. The very fact that a putative adverse possessor lives next to the disputed land means that he or she will be able to put that land to a greater variety of uses, and derive a greater range of benefits, than a person living further away. It may be that the best form of use by a person living next to the disputed land, consistent with treating that land as being in his or her exclusive possession, is to take advantage of its existing physical characteristics insofar as they complement the characteristics of the land upon which he or she is living. As we have stated above, use and special benefit and exclusive possession are not necessarily mutually exclusive.
98 Where the use of the disputed land amounts to no more than casual acts of trespass - such as occasional grazing of cattle, occasional sporting activities, occasional picking of fruit or gathering of wood or hay - those acts will be insufficient to establish either factual possession or manifest an intention to exclusively possess. But that was not this case. We need not recapitulate the nature and extent of the uses to which the Abbatangelos put the land over an extended period. It is enough to say that in our view such nature and extent amounted to more than mere use, mere casual acts of trespass or mere extraction of special benefits. They constituted the taking of exclusive possession and manifested an intention to do so.
99 Another submission advanced for the Council was that the restoration, construction and maintenance of fences was established by the evidence to be for a purpose other than excluding the paper owner - namely, to prevent stock from straying onto the road. In light of this, the appellant submitted, it could not be said that the repairs to the fencing were done with the intention of asserting control and to exclude the appellant.
100 These submissions proceeded on the misconceived premise that a person who desires to possess land exclusively builds and maintains fences on the land solely for the purpose of keeping others out. Plainly, fences serve multiple purposes. Some delineate title boundaries. Others are internal. Some are ornate. Others are minimalist and purely functional. The nature and purpose of a fence will be affected by the nature, location and characteristics of the land and the uses to which it is put. Given that the use to which the Abbatangelos put the land over an extended period included grazing of livestock, it is entirely unsurprising that one purpose of maintaining the fences on the land was to prevent animals from straying on to the road. The existence of that purpose, however, did not prevent the maintenance of the fences from being included in the factual matrix from which findings could be made about factual possession and an intention to exclusively possess.
101 In a still further submission, the Council sought to rely upon notations made by the Abbatangelos in a series of planning applications lodged between 1969 and 1979 concerning the respondent's property. Documents which they filed depicted the land and used the acronym 'NIT' ('Not in Title') to describe it.[54] The appellant submitted that the statements were clear acknowledgments by the respondent that the appellant, rather than she, owned the land. In our view, the notations were nothing to the point. The intention that the putative adverse possessor must have, and must manifest, is an intention to possess exclusively, not an intention to own.[55] An acknowledgement as to who is the paper owner is not inconsistent with the requisite intent. The acronym 'NIT' accurately represented the title position and said nothing about who was in possession of the land and with what intention.
102 The appellant next relied upon Ms Stephenson's 28 March 1979 statement.[56] It submitted that the respondent's failure to object to the statement weighed against her having manifested the requisite intention to possess to the exclusion of all others. In our view, this submission also confused an intention to own with an intention to exclusively possess. The respondent's failure to object did not detract from the impression that was conveyed by her acts of possession manifesting her intent. Tacit acknowledgement of paper ownership was not demonstrative of the absence of an intent to exclusively possess the land.
103 The Council also sought to rely, a propos intention, upon the respondent's statement to Mr Draper in 1992 that the land was owned by the appellant. Once again, the appellant's submission confused an intention to exclusively possess with an intention to own. As we have said, the respondent's acknowledgements of the Council's ownership were not inconsistent with the former intention and were accurate in relation to paper ownership. In any event, whatever relevance Mrs Abbatangelo's conversation with Mr Draper might otherwise have had, in our view the appellant's title had already been extinguished by 1992.
104 The appellant submitted that the trial judge was bound to, but did not, find that Mrs Abbatangelo was aware of the use to which the appellant intended to put the land and so more was required to manifest an intention to possess the land adversely than was done by her. For the reasons set out at [6](h) above, the submission should be rejected. This case was not one where an inference - which Lord Browne-Wilkinson described in Pye as 'impro[57]ble'57 - could be drawn that Mrs Abbatangelo's presumed awareness of the Council's intended use of the land, and the lack of inconsistency between her use of the land and the Council's intended use, justified a finding of fact that Mrs Abbatangelo had no intention to possess the land but only an intention to occupy it until needed by the Council.
105 In relation to the trial judge's use of Mrs Abbatangelo's evidence about her own subjective intention, the appellant submitted that such evidence was ambiguous, inadequate and in any event self-serving. It submitted that the evidence of her intention apparent from her statement to Mr Draper should be preferred. We have already dealt with the 1992 conversation. With respect to the respondent's evidence of her subjective intention, whilst statements of intention must be treated with caution, they may nonetheless be of use in conjunction with other circumstances. In this case, the trial judge was alive to the potentially self-serving nature of Mrs Abbatangelo's statements of her intention and evaluated her evidence in the context of the evidence as a whole. In our opinion, he was entitled to accept Mrs Abbatangelo's stated intention in the context of all the evidence.
106 The appellant also relied on the Abbatangelos not having paid rates for the land. Although payment of rates may be evidence of an intention to possess,[58] there is no requirement that they be paid for intention to be established. As the Council was the paper owner of the land, it was not rated. In the circumstances, it was not to be expected that Mrs Abbatangelo would request the Council to issue rate notices to her. Again there is an element of confusion with recognition of ownership. It cannot tell against Mrs Abbatangelo having the requisite intention to possess the land that she did not volunteer to pay rates.
107 The appellant contended that the trial judge erred in not having regard to evidence that the value of the land increased by almost 500 per cent between 2004 and 2006, that in 2006 developers had offered the respondent's children $6.9 million for the respondent's property, and to evidence pertaining to the state of development of the land in the area generally in recent years. In our view, evidence of the value of the respondent's property and the making of offers to buy it was irrelevant. Evidence about the state of development of land in the area generally could be relevant in some cases, but not in this case because it related to a period well after the extinguishment of the appellant's title.
Other issues relating to the principles of adverse possession
108 We come to the third category of submissions advanced for the Council which we identified at [74] above.
109 The judge found that the period spent by the Abbatangelos in Geelong did not constitute an interruption to their continuous possession. The appellant challenged this finding. In our view, it was open to the judge on the evidence before him to find that the Geelong period did not interrupt the Abbatangelos' possession. But even if such a finding was not open to the judge, in our view there was a continuous period of possession for 15 years from the time the Abbatangelos returned to Mernda in February 1975.
110 The appellant next relied on the principle that possession of land cannot be adverse to the paper owner if done with the permission of that owner. It called in aid Mr Christian's evidence about the appellant's practice of allowing grazing on some Council land - even though, for reasons which we have described, the judge rejected its usefulness. It also called in aid evidence given by Mr Draper to which the judge did not refer. Mr Draper had said that some land owned by the appellant was fenced off by farmers who used it for grazing and that the appellant was happy for that to happen because it helped to keep the grass down. The appellant submitted that this was compelling evidence that the respondent's use of the land for grazing was not adverse to the appellant. It also referred to evidence given by one of the respondent's sons that the fences around the land were well maintained to keep animals from getting on to the road. It submitted that, consistent with Murnane v Findlay,[59] the judge should have found that grazing was an equivocal act and indicated an intention to obtain a special benefit from the land rather than an intention to exclusively possess.
111 In our view, those submissions must be rejected. The trial judge was correct to conclude that whatever tacit permission the appellant gave for farmers to graze their cattle on Council land did not apply to this small, treed and fenced-off parcel of land. We need say nothing more about Mr Christian's evidence in this connection; whilst Mr Draper's evidence did not carry the matter any further in the particular circumstances. In any event, grazing was far from being the only act of possession by the respondent of the land. Those acts, which extended over a lengthy period, were not engaged in as a consequence of some express or tacit permission of the appellant. All of the acts, when viewed in combination, were not the mere obtaining of a special benefit. They were sufficient to establish factual possession and an intention to exclusively possess. We observe in passing that apart from the matters to which we have already referred, the Council did not at trial or on appeal rely upon any particular conduct by it in relation to the land that told against the respondent's claim of exclusive possession for the requisite period.
Alleged errors of law relating to factual findings and inferences and credit
112 The Council submitted that the judge made various errors of law in relation to his factual findings. The appellant's contentions can be summarised as follows:
(a) The judge made general findings about the animals kept by the Abbatangelos. More informed detail was available to him which would have led to different findings.
(b) A detailed analysis of the evidence and submissions would have led to the finding that the respondent's use of the land after 1980 was very limited and could not reasonably support any finding that the appellant would have been aware of the respondent's presence as an adverse possessor.
(c) The judge erred by finding the southern boundary fence, as shown to be in place in 1969, was put there by a member of the respondent's family. The survey evidence of Mr Mulcahy showed a wire fence along most of the boundary with some wooden pickets in 1969. None of the respondent's witnesses referred to wooden pickets and it was not clear from the evidence that the fence had been placed there by the Abbatangelos rather than by another person such as the appellant.
(d) The trial judge erred in finding there was no fence along the eastern boundary of the land in 1986.
(e) The evidence given by the respondent and her sons was imprecise and lacking in detail, internally inconsistent, and in certain respects contradicted by other evidence. The judge erred in not subjecting their credibility to closer scrutiny and in preferring their evidence to that of other witnesses. Thus, inter alia, the judge rejected the objective evidence of both expert photogrammetrists and preferred the direct evidence of the respondent and her sons. This was relevant, for example, to the question when the gate was constructed and to the issue whether, when and to what extent the eastern boundary fence was removed.
113 In our view, the above criticisms of the trial judge's findings were unfounded. The judge was well placed to assess the witnesses' evidence and make findings about their credit and to draw inferences from primary facts found by him. There is nothing in the evidence that would cause us to depart from the judge's findings.
114 The appellant also submitted that the trial judge failed to give any, or any adequate, reasons for various findings, including his finding that, despite inconsistencies, the respondent and members of her family were credible witnesses. Senior counsel for the appellant particularly attacked his Honour's reasons for rejecting the evidence of the expert photogrammetrists in favour of the evidence of the respondent and her family in relation to the presence of the gate in the north-western boundary of the land in the 1960s and in relation to the absence of an eastern boundary fence in 1986. He submitted that his Honour 'added his own subjective opinion to support his preference for the evidence of the Respondent and her family despite the uncontested evidence of both the expert photogrammetrists which contradicted the evidence of the Respondent and her family'.
115 In our opinion, those attacks were without substance. His Honour's reasons, which we have set out at length, carefully weighed up the competing evidence and explained why he preferred the evidence of the respondent and her family on particular issues. For the reasons given by his Honour, this case was unlike Traykof v Shanco Holdings Pty Ltd[60] where this Court held that the acceptance of the oral evidence of certain witnesses by the trial judge, without any reference to objective evidence in the form of aerial photographs which contradicted that oral evidence, meant that the trial judge's process of reasoning was flawed. Here, there was independent evidence in support of the evidence of the respondent and her family[61] and the photogrammetrists' evidence based on the aerial photographs was far from conclusive.[62] In any event, the trial judge explained his reasons in sufficient detail to enable this Court to ascertain the reasoning upon which his decision was based and to be satisfied that justice has been done.[63] No basis has been established for this Court to overturn the judge's findings which were based in part on his appreciation of the credibility of witnesses.[64]
116 The appellant submitted that the trial judge erred in not conducting a view of the relevant properties. This submission can be disposed of quickly. There was no application for a view, and the issues in the case were determined by reference to the activities of the Abbatangelos and the appearance of the two properties between 1958 and 2004, and to certain other incidents which occurred during that period. Given the availability of aerial photographs, title documents and the other material that was in evidence before him, the trial judge did not err in not conducting a view.
117 For the reasons stated, and as we said earlier, the appeal should be dismissed.
[1] (2008) V Conv R 54-750; [2007] VSC 529 ('the Reasons').
[2] (2006) V ConvR 54-709; [2002] VSC 206, [39]-[40] (citations omitted) ('Bayport'). The corrections are ours.
[3] J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419, 433-5 [33]-[36](Lord Browne-Wilkinson) ('Pye').
[4] Pye [2002] UKHL 30; [2003] 1 AC 419, 434 [36]-[37] (Lord Browne-Wilkinson).
[5] Rains v Buxton (1880) 14 Ch D 537; Re Johnson [1999] QSC 197; [2000] 2 Qd R 502, 506 (Wilson J).
[6] Pye [2002] UKHL 30; [2003] 1 AC 419, 435 [40] (Lord Browne-Wilkinson).
[7] Murnane v Findlay [1926] VicLawRp 11; [1926] VLR 80, 87 (Cussen J) ('Murnane'); Riley v Penttila [1974] VicRp 67; [1974] VR 547, 561 (Gillard J) ('Riley'); Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd (2006) V ConvR 54-724; [2006] VSC 314, [46] (Bongiorno J) ('Sunny').
[8] Pye [2002] UKHL 30; [2003] 1 AC 419, 436 [42] (Lord Browne-Wilkinson); Sunny (2006) V ConvR 54-724; [2006] VSC 314, [51]-[52] (Bongiorno J).
[9] Pye [2002] UKHL 30; [2003] 1 AC 419, 443 [60] (Lord Browne-Wilkinson).
[10] Clement v Jones [1909] HCA 11; (1909) 8 CLR 133, 140 (Griffith CJ) ('Clement').
[11] Murnane [1926] VicLawRp 11; [1926] VLR 80, 88; Riley [1974] VicRp 67; [1974] VR 547, 562, 564-8.
[12] Tecbild Ltd v Chamberlain (1969) 20 P & CR 633, 640, 643, 644, 646 (Sachs LJ).
[14] [2000] VSC 55, [33]-[34]. Although in Clement [1909] HCA 11; (1909) 8 CLR 133, 140, Griffith CJ referred to Leigh v Jack with approval, that case turned on findings of fact that the paper owner of the land had performed various acts of possession within the relevant 15 year period and that the putative adverse possessor's acts of grazing cattle on the land with the owner's tacit permission were insufficient to establish either factual possession or an intention to exclusively possess.
[15] [2002] UKHL 30; [2003] 1 AC 419, 438 [45] (Lord Browne-Wilkinson).
[16] In this judgment, we refer to 'the respondent's property' in contradistinction to 'the land'. The respondent's property was referred to by the trial judge as 'the Abbatangelo property'.
[17] At trial, it was not clear on the evidence precisely when the Abbatangelos returned to Mernda. They returned some time in either 1974 or early 1975, possibly in February. As nothing turns on the precise date, for convenience, we will assume they returned in February 1975.
[18] And for a long period prior thereto.
[19] The spoon drain runs from Plenty Road to Bridge Inn Road, and carries water from Plenty Road to Bridge Inn Road across the respondent's property and through the fence line of the western boundary of the land. The spoon drain runs across the land for approximately the last six metres or so before it runs into the table drain running along Bridge Inn Road.
[20] Reasons, [45]. The interpolation in the quotation appears in the Reasons.
[21] It appears that the cubbyhouse-like structure consisted of no more than a few planks of timber and a board put into a tree.
[23] Reasons, [9]. The corrections to the quotation appear in the Reasons.
[26] Reasons, [15] (citation omitted).
[33] Reasons, [25]-[26] (citations omitted).
[42] Reasons, [37]-[38] (citation omitted).
[45] The judge also ordered that the Council's counterclaim be dismissed. By that counterclaim, the Council had sought a declaration that it was the absolute fee simple owner and entitled to possession of the land, a declaration that it was entitled in October 2004 to put up the new fence along the land's eastern boundary, and damages for trespass.
[46] Laird Properties New England Land Syndicate v Mad River Corp, 305 A 2d 562, 567 (1973).
[47] Transcript of Proceedings, Laurice Abbatangelo v Whittlesea City Council (Supreme Court of Victoria, Pagone J, 26 November 2007) 330.
[50] Pye [2002] UKHL 30; [2003] 1 AC 419, 434 [36].
[51] (1979) 38 P & CR 452, 472.
[52] Bayport (2006) V ConvR 54-709; [2002] VSC 206, [39] (appellant's emphasis).
[53] Pye [2002] UKHL 30; [2003] 1 AC 419, 435 [40].
[55] Pye [2002] UKHL 30; [2003] 1 AC 419, 436-7 [42] (Lord Browne-Wilkinson).
[57] [2002] UKHL 30; [2003] 1 AC 419, 438 [45] (Lord Browne-Wilkinson).
[58] Murnane [1926] VicLawRp 11; [1926] VLR 80, 91-2; Re Johnson [1999] QSC 197; [2000] 2 Qd R 502, 508.
[59] [1926] VicLawRp 11; [1926] VLR 80, 88-9.
[61] That evidence included the uncontested evidence of a neighbour, Raymond Grusling, that he rode horses on the respondent's property and the land on most weekends from 1975 through the 1980s, and that after 1986 he was able to ride onto the land from the eastern part of the respondent's property. Mr Hanlon gave similar evidence.
[62] One of the photogrammetrists, Mr Potter, gave evidence that none of the photographs were clear enough to actually determine wires on any fences and that under the significant magnification that the photographs were subjected to, the image broke down and became unclear. He also said that it was difficult to make definitive interpretations from the photographs and that the evidence of what people saw on the ground was more likely to carry more weight than interpretation from the aerial photographs that were not necessarily very clear.
[63] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18.
[64] Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178.
Whittlesea City Council
Abbatangelo [2009] VSCA 188
(1909) 8 CLR 133
(1990) 171 CLR 167