Alford v Evans and Registrar of Titles
[2010] VCC 475
•13 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-09-04048
| BARBARA JEAN ALFORD | Plaintiff |
| v | |
| ROBERT EVANS | First Defendant |
| and | |
| REGISTRAR OF TITLES | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4,5 and 6 May 2010 |
| DATE OF JUDGMENT: | 13 May 2010 |
| CASE MAY BE CITED AS: | Alford v Evans and Registrar of Titles |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0475 |
REASONS FOR JUDGMENT
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Catchwords: ADVERSE POSSESION OF LAND – Knowledge of person possessing land as to title boundaries – acts of re-entry upon land.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W F Gillies | SLM Lawyers |
| For the First Defendant | Mr A J Fraatz | Peter Speakman & Co. |
| For the Second Defendant | No appearance | - |
| HIS HONOUR: |
Preliminary
1 The plaintiff purchased land at 125 Bushby’s Road, Barongarook,[1] near Colac in April 1988 (“Lot 31”).
[1] being Lot 31 on Plan of Subdivision 125751 and being the whole of the land comprised in Certificate of Title Volume 9303 Folio 175 – Plaintiff’s Court Book (“PCB”) 36-37
2 The first defendant is registered as proprietor of land to the south and west of Lot 31 upon which is conducted a farming enterprise and sand quarry (“the first defendant’s land”). Originally, before subdivision in 1978 the land owned by the first defendant’s family was more extensive, in the order of 500 acres.
3 This trial concerns a claim by the plaintiff for entitlement by adverse possession of a strip of land along the southern boundary of Lot 31 measuring approximately 3.5 metres’ wide by 56.25 metres along that boundary (“the disputed land”). That disputed land has, until recent times, been enclosed within Lot 31 by a steel post and wire fence (“the fence”).[2] At an earlier time, the fence was constructed by the first defendant’s parents.
[2] The wire part of the fence consists of two barbed wire strands at the top, and ring lock wire.
4 The juxtaposition of the various pieces of land, including the disputed land, can be seen from Exhibit A, a Survey Plan of the relevant area dated 24 April 2009.[3]
[3] Exhibit A
5 As is customary, the second defendant did not appear in the proceeding.
History of the Disputed Land
6 The first defendant’s parents purchased approximately 500 acres of land at Barongarook in the 1960s.[4] At that time the land was used as a farm. Later, part of the land was utilised as a sand quarry.
[4] Certificates of Title Volume 8178 Folio 256 and Volume 8122 Folio 809 purchased 7 October 1964, Certificate of Title Volume 8668 Folio 576 purchased 11 April 1967.
7 In approximately 1978, the first defendant’s parents subdivided part of the land to create, inter alia, Lots 30, 31, 32 and 33 on Plan of Subdivision 125751.[5] At that time, there was a government road (“the old government road”) along the southern boundary of these lots.[6] The disputed land was part of the old government road. That road originally served as an access road to various parts of the first defendant’s land. When the subdivision was undertaken, there was reference to some “small differences” in the title dimensions.[7] It is not clear what those small differences were. An application pursuant to s.103 of the Transfer of Land Act 1958 was said to be required. This was not undertaken. The fence can be seen in the surveyor’s field notes.[8]
[5] PCB 52-56
[6] PCB 54-55
[7] Survey Plan of Brian Turner dated 16 May 1977 – PCB 53
[8] PCB 54-55
8 Lots 30, 31, 32 and 33 were created by Plan of Subdivision 125751.[9] The first defendant’s parents sold those lots, with various other parcels of land contained in the subdivision, to Tanlon Pty Ltd by transfer dated 23 March 1981.[10] Tanlon (a land agent or property developer) then marketed and sold these lots, including Lot 31.[11]
[9] See Certificate of Title Volume 9303 Folio 175 – PCB 36
[10] PCB 44-45
[11] PCB 43
9 Lot 31 was originally sold to Sean and Glenda Venning on 2 December 1986.[12] The plaintiff purchased Lot 31 on 20 April 1988 from them.[13]
[12] PCB 36-37
[13] PCB 40-41
10 When the plaintiff purchased Lot 31, the old government road to the south was closed and not used for access. Access was gained to the plaintiff’s land from the north, along Bushby’s Road.[14] The old government road was originally owned by the Shire of Colac and, given it no longer provided access, was formally closed by notification in the Government Gazette of 10 October 1990.[15] Subsequently, the road was transferred to the first defendant’s parents on 4 April 1991 as part of a “land swap”.[16]
[14] See Exhibit A
[15] PCB 28-29
[16] See Certificate of Title Volume 10064 Folio 222 – PCB 34-35
11 The first defendant’s land, including the old government road, and the land to the south and west of Lots 30 to 33, was sold by terms contract by the first defendant’s parents to him in 2001. He became the registered proprietor of that land in 2007.[17]
[17] PCB 84-89
The Evidence
12 The plaintiff gave evidence that she purchased Lot 31 in April 1988. At the time it was vacant land. There was the post and wire fence (“the fence”) along the southern boundary, and she presumed that she was purchasing all of the land to the north of that fence. She was not aware that there was any discrepancy in the title boundaries, in particular, that there was any land to the north of the fence which was not within her title. When she purchased the land, the fence was in reasonably good condition. She ran sheep on the property for the first twelve months, and cattle on and off thereafter for a number of years. The condition of the fence was sufficient to retain that stock.
13 A house was located on the land in May 1990, and the plaintiff moved onto the property in January 1993, when she married her husband. She and her husband created some internal paddocks, and ran small numbers of stock and horses within those paddocks. Over the years from 1988 to the present, the fence deteriorated. Originally, to the north of the fence there was chest- high bracken. Her husband repaired the fence from time to time, particularly when tree limbs fell upon it. The strands of wire sagged, and leaf and timber material built up on either side of the fence.
14 The plaintiff was taken to a plan prepared by the first defendant.[18] What was said to be “illegal structures” were a woodshed or toolshed (“the woodshed”), construction of which commenced in approximately 1995 (“I”) and a garage (“the garage”) (“J”), construction of which was commenced by placing footings in 2004, and which was then completed in 2006 or 2007.
[18] PCB 113
15 The plaintiff stated that she had never seen the first defendant, nor any member of the Evans family walk upon or near the disputed land to carry out any weeding, rubbish gathering, or any other activity.
16 The plaintiff took various photographs of and around the disputed land. Most were taken in November 2009.[19] They showed:
[19] PCB 57-71
• The old government road (Photograph 1); • The fence along the boundary between Lots 31 and 32, including a gate constructed on the eastern edge of the disputed land (Photograph 2); • Various photographs of the fence (Photographs 3 – 20); • Shedding and various farming equipment and materials to the north of the fence, owned by the plaintiff and her husband (Photographs 3, 5 – 16); • The woodshed, taken in 1995 (Photograph 21); • The garage to early frame stage taken in September 2004 (Photograph 22); • The garage to frame stage taken in May 2006 (Photograph 23). 17 The plaintiff accepted that the barbed and ring lock wire comprising the fence, at the present time, and at several places, ran along or just above the ground. This had occurred through general wear and tear, the build up of leaves and other materials along either side of the fence and by fallen branches. She stated, however, that that deterioration was of more recent years, and in the earlier years, the fence had been in good condition, and capable of retaining stock.
18 The two saplings covered with a plastic surround in Photograph 24 were placed there by the first defendant at some time between March and November 2009. Before that time, there was no planting that the plaintiff observed on the disputed land.
19 In April 2009, the first defendant, or contractors on his behalf, moved a range of equipment and material on the disputed land away onto the plaintiff’s property, and fencing works were commenced along the title boundary.
20 The plaintiff stated she was able to observe the backyard from her south facing kitchen window, although there was some obstruction by a banksia bush. If someone came onto the disputed land, the plaintiff’s dog would bark and alert the house. The plaintiff worked approximately three days a week, and was away from her property from time to time. She has two children who regularly played in the backyard. The plaintiff accepted that in a number of the photographs,[20] the wire of the fence was close to the ground and could be stepped over. She agreed there was a pathway leading from the fence to the south, which was used by her children, through the fence, and there was a swing in that area. She stated that the disputed land was not mowed but was raked and that a range of equipment was located upon it over the years. The wire netting shown in Photograph 7[21] was taken from a local tennis club more than two years before.
[20] Defendants’ Court Book (“DCB”) 242
[21] PCB 60
21 She said she had never seen the first defendant, nor members of the Evans family upon the disputed land, save for recent times. The fence between Lots 31 and 32 was erected by her husband and Mr Hudgell, and a gate erected at the southern end. When she purchased the land, there was a fence along the western boundary. She did not see any survey or other pegs upon the land at the time of purchase, nor subsequently. In addition to pieces of firewood which had been placed upon the disputed land, there was an old window, troughs, bricks, rocks, a trailer and compost bins.
22 It was difficult to see the woodshed from aerial photographs[22] as the shed was shrouded in trees.
[22] DCB 207-217
23 Evidence was given by Suzanne Marie Hudgell. She purchased Lot 33[23] in 1981, and then sold it in 1996 or 1997. She purchased Lot 32 in 1983. The gate on the disputed land between Lots 31 and 32[24] was erected by her husband and Mr Alford to enable the families to have social access.
[23] See Exhibit A – referred to as ‘Lot 1’
[24] Photograph 2 – PCB 57
24 Mrs Hudgell stated that the fence along the southern boundary of Lot 32, which was aligned with the fence along the southern boundary of the Alford’s property, was in good condition in 1983. Her family had horses upon Lots 33 and 32 which did not escape through the fence. She did not recall anyone removing weeds or rubbish on the southern boundary of her property, nor from the Alfords’ property. Her husband, a builder, maintained the fence along the southern boundary. He died in November 2004. The first she heard the fence along the southern boundary of Lot 32 was not on the correct title boundary was not until April 2009 when she was informed by Mr Evans.
25 Mrs Hudgell said that she would be surprised if there was any conversation between the first defendant and her husband about the title boundaries, as he discussed such matters with her. At no time did she notice survey pegs at the southern part of her property. When she purchased Lots 33 and 32, the “flyer” showed the properties fenced along the southern boundary.[25]
[25] PCB 43
26 Mrs Hudgell remained at home living on Lot 32 and commenced part-time work in 2000, working several hours over two days. She was regularly in the garden as she was a keen gardener and did not see anyone from the Evans family upon her property. She did not notice anyone extracting weeds or removing rubbish. She kept the grass short in the area and raked the leaves and twigs along the southern boundary.
27 She said the old government road to the south of the lots was generally overgrown and not cleared until the last twelve months.
28 Evidence was given by Jean Davies, who purchased Lot 30[26] in 1984. She and her family lived upon that property from 1990. When she purchased the land, the fences surrounding the property were in quite good condition. She was not told that the rear fence was not upon her title boundary. The first she had heard of that was in April 2009.
[26] See Exhibit A
29 When Mrs Davies and her family first lived upon Lot 30, access was along the old government road to the south. She looked at the Alford fence, and did not notice any gaps. The fence along the southern boundary of the Alford property was now dilapidated. She met the first defendant in about 1992 but there was no discussion about her southern boundary fence being in the wrong position. Her husband was presently teaching in the Northern Territory and unable to give evidence. She stated the government road depicted in Photograph 1[27] had not been in that condition, save for the last two years or so. It was only cleared when it was slashed, which occurred once a year or so.
[27] PCB 57
30 Mrs Davies said that she had always believed that the southern boundary fence was the title boundary to Lot 30. It was put to her that her husband had had a conversation in about 1988 with the first defendant’s father, Mr Garth Evans. She said that her husband told her that he had never spoken to Mr Evans Senior.
31 Mrs Davies worked full-time from 1993 until 2009. Her husband worked and was not on the property during the day. She and her husband maintained the southern boundary fence as they had a dog. She could not exclude the possibility one of the Evans had entered the land along the southern boundary of her property at some time.
32 The plaintiff’s husband, Kenneth Alford, gave evidence. He was married to the plaintiff in 1993 but saw Lot 31 when his wife purchased it in 1988. There was high bracken and two very old trees along the southern boundary. He and his wife ran calves and sheep upon the property when first purchased. At that time the fence along the southern boundary, consisting of steel droppers, ring lock and barbed wire, was in good condition, and held the stock. There were no gaps in the fence in 1988.
33 A woodshed[28] was constructed in about 1995. A garage[29] was constructed later, from about 2006 over the following two years. The house was taken to the property in 1990 and he and his wife and family lived there from 1993.
[28] depicted as “I” – PCB 113
[29] depicted as “J” – PCB 113
34 From time to time he would maintain the fences of the property, including along the southern boundary. Trees or limbs would fall upon the fence and he would cut them off. He strained the fence from time to time, approximately each twelve months, and repaired the wire. He and his wife kept stock upon the property until approximately 1993.
35 Mr Alford was shown various of the photographs from the plaintiff’s Court Book. Photograph 2[30] showed a fence and gate at the southern end of the boundary between Lots 31 and 32. That was constructed by himself and Mr Hudgell in the late 1990s. Photograph 5 showed a compost area surrounded by corrugated iron. The original was destroyed when the Evans’ contractors came in to start construction of a new fence in 2009. The state of the fence as depicted in Photographs 7 and 8, showing the wires near the ground, was only in that condition over the last several years. The top wires were “passed their use by date” but the ring lock netting was still intact. The timber depicted in Photograph 10 was disused building material, and was used as firewood and for cubby houses. The shed depicted in Photographs 13 and 14 was upon the disputed land. Photograph 26 showed a tree growing from the south of the fence line, showing a branch which had been cut off by Mr Alford.
[30] PCB 57
36 Mr Alford stated that he had never met Mr Garth Evans and did not have a conversation with him in 1988 or any other time, to the effect that the southern boundary fence was not on the title. He denied any conversation about survey pegs or about constructing a fence upon the title boundary. He stated the first time he had seen Mr Evans Senior was at court. The first time he had seen or spoken to the first defendant was about three years ago when he purchased a load of sand from the quarry. At that time there was no discussion about the boundary fence. He next spoke to the first defendant in 2009 when he had come home from work. The first defendant told him that he was taking some soil from the area, and there was a further discussion that at some stage the fence along the boundary should be replaced. Mr Evans produced a Mitre 10 catalogue and made reference to bamboo screenings to be used. Mr Alford stated that was a waste of time as they would become damaged by trees. They agreed upon a ring lock fence. Mr Alford had fencing equipment which he offered to use in the process. Mr Alford suggested the use of pine posts. He recalled Mr Evans saying that the fence was “not quite right”. Mr Alford said that the only place where the fence could be re-erected was on its current line as there was a gap through the trees. A tiger snake interrupted their discussion.
37 About fourteen days later Mr Alford came home and noticed that building materials were strewn across his backyard. There were mounds of dirt from post holes which had been dug along the eastern side of the southern boundary. The materials which had been along the southern boundary had been pushed up and smashed. A water pipe had been broken. The gate between Lots 31 and 32 had been taken down. There was an altercation between himself and Mr Evans, or his contractors, and work was stopped.
38 Mr Alford did not recall seeing any survey pegs upon the property at any time.
39 He accepted that the strainer posts at the eastern and western ends of the fence were of little use. Some of these steel droppers had rotted away of recent times. He had ceased maintaining the fence two or three years ago as it was beyond repair. He denied that he had any knowledge that the fence was anywhere other than on the correct title boundary. He stated that the compacted area to the front of the garage was approximately half upon the plaintiff’s land, and half upon the disputed land.
40 On the disputed land, over the years he had placed various off-cuts of wood to be used as firewood; machinery from time to time; building materials and gardening equipment. In addition, approximately half the garage and half the woodshed was upon the disputed land. Much of the material had been there over many years. A compost bin constructed of old materials obtained from his father was smashed up when the contractors removed materials in 2009. There was always a gap in the fence on the south-west corner between Lots 30 and 31, and a fence running along the boundary between those two lots.
41 Mr Alford was able to recollect the date of the construction of the shed as being 1995 as his first child made a foot imprint in the wet concrete and “1995” was written.
42 He denied ever seeing the first defendant or members of his family access the disputed land and remove any rubbish or weeds. He thought he would have seen evidence of this had occurred.
43 Mr Alford stated that the pieces of timber, tank and cardboard cylinders depicted in a photograph[31] had been along the southern boundary since approximately 1993. A glass window[32] had been in that position for five or ten years, and upon the disputed land. The tennis court wire[33] had been in that position for two to three years. The trailer[34] was usually on the disputed land at one point or another. The cement mixer[35] had been in that position for four to five years, and before that, behind the shed on the disputed land. Photograph 14[36] showed old bricks and wire which had been in that position since the house was built. The red power harrow[37] had been on the disputed land over several years now.
[31] DCB 243
[32] Photograph 6 – PCB 59
[33] Photograph 7 – PCB 60
[34] Photograph 11 – PCB 62
[35] Photographs 11 and 12 – PCB 62
[36] PCB 63
[37] Photograph 27 – PCB 71
44 On behalf of the first defendant, evidence was given by Mr Ian Evans, the first defendant’s brother. He left school at fifteen in approximately 1987. He worked upon the family property at Barongarook for about six months of each year from 1987 until 1991, when he left to run another family farming property in South Australia.
45 Mr Ian Evans stated that from time to time he would go onto the disputed land for the purpose of weed control. This usually occurred between spring and summer, and thistles, blackberries and other weeds were collected in a bag and subsequently incinerated. He was aware that the fence along the southern boundary of Lot 31 and the other adjoining lots was not on the title boundary. Over the four years he worked on the property from 1987 to 1991, he would have gone onto the disputed land two, three or four times. At times he would jump the fence, and because of its state, he could almost walk through it. He would sometimes walk along the disputed land from the east. The fence along the southern boundary of all of the lots was “pretty ordinary”. He did not ever speak to the lot owners.
46 Mr Ian Evans first became aware of this trial two to three weeks ago. That was the first time he was asked to recall these matters, now some twenty years on. Over the years that he was upon the property, he said that the southern boundary fence was in poor condition and he doubted if it would hold stock.
47 The first defendant’s father, Garth Evans, gave evidence. He purchased about 500 acres in the 1960s initially as a dairy farm, and in the 1970s a sand quarry was established. It was originally all bush and had to be cleared. At some point he had a conversation with the Shire about erecting a fence along the northern side of the old government road. It was suggested that the northern boundary of the road could be established by measuring approximately half a chain (11 yards) from the centre of the road. At that time, a government road was approximately a chain or 22 yards’ wide. Once that measurement had been taken, Mr Evans and/or his contractors constructed the fence to the south of Lots 30, 31 and 32. The purpose of constructing the fence was to divide the area into paddocks for grazing dairy cows.
48 Mr Evans Senior stated that the area of the property used as a quarry and which was affected by an Extractive Industry Licence was as shown in the Work Authority number 220.[38]
[38] DCB 192
49 From the time of possession in the 1960s, he and members of his family cleared the land and would, according to good farming practice, patrol the boundaries and undertake weed and vermin eradication. The subdivision into 72 allotments was undertaken in 1978.[39] At that time each lot was delineated by surveyor’s pegs and marker pegs. There was a fence along the western boundary of Lot 30 and, as stated, along the southern boundary of Lots 30 to 33. He accepted that in 1981 the fence was stock proof but was not in good condition at that time. By 1988, it was not stock proof and it was possible to walk through gaps in the fence. The strainers at either end of the fence had become rotten and dilapidated. He was told of a discrepancy of the title boundaries along the southern boundary of Lots 30 to 33 by the surveyors in approximately 1978. He walked upon the disputed land and the land along the southern boundary of Lots 30 to 33 over the years as part of a weed reduction program. As from 1981, the fence had become redundant as there was a good stock proof fence on the southern side of the old government road. To his mind it did not matter whether the fence was there or not. At some point, he had a discussion with Mr Davies, one of the proprietors of Lot 30, in which he pointed out the true boundary of that property. In 1988, there were survey pegs at the southern boundary of Lot 30 but other pegs to the east on the boundaries of the other Lots 31 to 33 had become lost or removed.
[39] as set forth at PCB 94
50 In 1988, or possibly in the year or two after that, he and his son had a conversation with the plaintiff’s husband, Mr Alford. They noticed Mr Alford upon his property when they were in the vicinity and wished to say that the pegs delineating the proper title boundary were missing. He told Mr Alford those pegs were missing and possibly had been “knocked out”. He said that he proposed that a fence be put up on the true title boundary, and commenced to climb the fence to point out where that was. The conversation was cut short as Mr Alford became agitated and said that if he, Mr Evans, was to enter the land he would be sued. At that point he walked away.
51 Mr Evans Senior sold the remainder of the farm, to the first defendant by a terms Contract of Sale dated 2001. Settlement occurred in 2007. He stopped undertaking the weeding himself in approximately 1989 when he had a serious heart attack. In the times that he went upon the disputed land for weeding purposes, he did not see the plaintiff or her family. He paid all the rates over the property, including the disputed land.
52 After the subdivision of the original Certificates of Title into 76 allotments, 70 blocks or allotments were sold, and approximately 100 to 110 acres, including the sand quarry, was retained.
53 Mr Evans Senior was cross-examined at length about his recollection of the conversation with Mr Alford in 1988. It was suggested to him that at that time the person he had spoken to may have been the previous proprietor of Lot 31, Mr Venning. He denied this, and said that he knew Mr Alford “from the district”. He was unable to recall precisely how he knew Mr Alford but said that he may have seen him at cattle sales or at some other district gathering. He acknowledged that he had never actually met Mr Alford. It was suggested that he had reconstructed events to suit the stance he had taken in the litigation, which he denied. He accepted that the first time he had been called upon to recall this conversation was of recent times.
54 Evidence was given by the first defendant’s brother, James Evans. He was resident at the Barongarook property over the years 1982 to 1990. On a number of occasions he walked the disputed land as part of a weed control program. He picked up weeds and destroyed them. This was done several times a year and included thistles, blackberries and ragwort. It was necessary to undertake this weeding not only for farm management, but to prevent weeds infesting the quarry area. Thus a buffer zone was created around the quarry. He stated the fence was in disrepair and that it was not really stock proof as early as 1982. By 1990, it was in further disrepair. He was aware that the fence was not on the title boundary as he had been told so by his father. He could not recall seeing any survey pegs.
55 Finally, evidence was given by the first defendant, Mr Robert Evans. He finished school in 1980 and worked upon the family farm and sand quarry. The family had a further sand quarry at Moriac nearby. He mostly ran the quarry with his brothers while they were on the property. Until 1981, the land to the north of the old government road was part of a grazing paddock used by the farm. At that time the fence was in position but in poor condition. Originally, there were survey pegs marking the boundaries, including the southern boundary of Lot 31. Those pegs were in position until approximately 1988 when they went missing, save for a peg marking a boundary of Lot 30.
56 He spoke with Mr Hudgell, one of the owners of Lot 32. Mr Evans was slashing a firebreak to the south of that Lot and introduced himself to Mr Hudgell. He told Mr Hudgell that the fence was not on the title boundary. Mr Hudgell said given that he was a builder, he would erect a new fence but that he was unable to undertake the work at that time. There was no firm arrangement as to when the fence was to be constructed.
57 With his father, he had a conversation with Mr Davies, the proprietor of Lot 30, in approximately the mid-1980s. They were standing at the south-west corner of Lot 30 and access to that Lot along the old government road was discussed. There were survey pegs indicating the true boundary of Lot 30 and Mr Evans Senior showed Mr Davies where the true southern title line lay, inside the old fence. Mr Davies appeared to understand.
58 He and his father also had a meeting with Mr Alford. He and his father had walked over the area several weeks before and noticed the marker pegs in respect of Lot 31 were missing. At that time he did not know of Mr and Mrs Venning, the previous proprietors of Lot 31. He knew Mr Alford as he had grown up in the district, although was unable to say whether he had ever met him. He had not been to school with Mr Alford. He believed Mr Alford had lived in the district. His father said to Mr Alford that the marker pegs were missing and could he put them back. He said that the old fence was not on the title boundary, and pointed to a place three or four metres to the north of that fence. He said Mr Alford “fired up” and his father was prevented from going over the fence. He said Mr Alford stated that if his father was to enter the land he would sue. His father then said to Mr Alford that when he settled in, he should come to see Mr Evans to discuss the construction of a fence.
59 Mr Evans referred to extracts of a “manager’s report book”.[40] The purpose of this book was to record, inter alia, when maintenance and inspection occurred for the purposes of the quarry extraction licence. There was no specific reference to any maintenance or weeding on the disputed land. He stated that “inspect premises” meant that Mr Evans, or one of the Evans’ family walked over the whole property to collect weeds and rubbish, and to check for fallen limbs. This report book was kept until 2006. Thereafter, Mr Evans made various recordings in a personal diary[41] which recorded various works undertaken on the Evans’ property from January 2002 until December 2009.
[40] DCB 1-69
[41] DCB 69-172
60 He said that over the years when he worked on the property, he entered the disputed land between two and four times a year to remove weeds and rubbish. It was important there be a “buffer zone” surrounding the quarry and that weeds were eradicated from that zone. The weeding would take place in mid-spring through to mid-summer as the weeds seeded during these times. In particular, blackberry, ragwort and thistle were targeted. These weeds were removed by pulling them out of the ground and subsequently burning them. The current quarry work licence required the removal of weeds.[42] Some of the diary references referred specifically to the disputed land.[43] The entries in 2009 were after Mr Evans became aware of the plaintiff’s adverse possessory claim to the disputed land. Recently, photographs were taken of some of the weeds and rubbish obtained.[44]
[42] DCB 237-8
[43] DCB 71 – “along boundary north of old fence”, DCB 164, DCB 169
[44] DCB 244-5
61 Mr Evans prepared a map[45] showing the disputed land, Lot 31, the structures upon it, and gaps in the fence. The fence in 1988 had deteriorated to the point where some of the wires were a foot or 18 inches above the ground. It was not stock proof at that stage. He gained access to the disputed land from a number of directions, including walking through a gap at the south-west corner of Lot 30, and on other occasions proceeding through gaps marked “C” and “D” along the fence.
[45] DCB 193
62 Mr Evans inspected the disputed land and removed weeds, including over the period from 1993 until the present time. In 2006, he first noticed the construction of a shed on the disputed land. He could recall this as he took dancing lessons in Geelong that year. A year or two before that he noticed a shed had been erected on the disputed land. He saw no particular need to construct a new fence on the title boundary of Lot 31 as the existing fence served no purpose. During the times he entered the disputed area, he did not see any of the owners of Lots 30 to 33.
63 In particular he said that he had not seen anyone from Lot 31 when he was on the disputed land when extracting the weeds.
64 He had a discussion with Mr Alford in approximately April 2009 regarding the erection of a fence. He stated Mr Alford agreed to move the shed so as to make way for a new fence along the boundary title.
65 Mr Evans stopped maintaining the fence around 1980 as the land had been sold to a developer and the fence served no particular purpose. Given the conversation he had with Mr Alford in 1988, he was unable to explain as to why, in the twenty years thereafter, he did nothing further until 2009, to establish the fence on the correct boundary.
66 Subsequently, again in April 2009, Mr Evans, without warning to Mr and Mrs Alford, went onto the disputed land with a machine, and pushed material, including the piles of timber and a compost heap, further to the north onto Lot 31. There was no warning of his visit, no letter written, nor notice to fence sent. He commenced a fence across Lot 31 on the title boundary which was a continuation of a fence along Lot 32, but was stopped by Mr Alford after several posts were dug. He said that he had not given notice as in the course of an earlier discussion, he advised Mr Alford of the true boundary and the need for a fence to be established.
67 He had paid the Shire rates over first defendant’s land, including the disputed land after it was sold to him by his parents.
Statutory Framework
68 Section 8 of the Limitation of Actions Act 1958 provides:
“8 Action to recover land No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him … .”
69 Section 9 provides:
“9 Accrual of right of action in case of present interests in land
(1) Where the person bringing an action to recover land or some
person through whom he claims—
(a) has been in possession thereof; and (b)
has while entitled thereto been dispossessed or discontinued his possession—
the right of action shall be deemed to have accrued on the date of
the dispossession or discontinuance.
… .”
70 Section 14 provides:
“14 Right of action not to accrue or continue unless there is
adverse possession
(1)
No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as ‘adverse possession’); and where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue until adverse possession is taken of the land.
(2)
Where a right of action to recover the land has accrued and thereafter before the right is barred the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action be deemed to accrue until the land is again taken into adverse possession.
… .”
71 Section 18 provides:
“18 Extinction of title after expiration of period Subject to the provisions of section eleven of this Act, at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action or an action to compel discharge of a mortgage) the title of that person to the land shall be extinguished.”
72 The relevant period that falls for consideration is from 4 April 1991 when the first defendant’s parents became registered as proprietors of the old government road in a “land swap” arrangement with the Shire of Colac. The disputed land was land was part of the old government road. The period thus runs from that date until April 2006. In order to succeed, the plaintiff must prove, the onus being upon her, that she established adverse possessory rights to the disputed land continuously, and without reclamation of possession by the first defendant or his parents, over that period.
The 1988 Conversation
73 The conversation said to have occurred between the first defendant, his father and Mr Alford in approximately 1988[46] is significant. The evidence of both the first defendant and his father was that:
[46] or in the year or two after 1988 according to the evidence of Mr Garth Evans
• They both knew Mr Alford “from the district” although neither had met him. •
They were concerned that survey pegs which had marked the true title boundary to Lot 31 had been lost or removed.
•
They indicated that a fence should be established upon the true boundary and Mr Garth Evans attempted to climb the fence to point out where it was to be placed.
•
Mr Alford responded with words to the effect “If you come in here – I’ll sue you”.
•
In their view, Mr Alford was left in no doubt that the fence was not on the true title boundary which was several metres to the north.
• They were surprised by his reaction and left. 74 When these allegations were put to Mr Alford, he staunchly denied the conversation had ever taken place. In fact he stated he had never spoken to Mr Garth Evans, and did not know who he was until he saw him in Court. The first time he had spoken to the first defendant was approximately three years before when he purchased sand from the quarry.
75 The significance of this conversation is that if it occurred and in the manner as stated by Messrs. Evans, then it would constitute a clear indication to Mr Alford that the disputed land was owned by the Evans. Thus, in the knowledge of the Evans’ claim to ownership, the necessary “animus possidendi” would be absent from the Alfords’ claim as to adverse possession. In all likelihood the plaintiff’s claim would be fatally flawed. Mr Gillies did not seek to argue that as the conversation was alleged to have occurred with Mr Alford, and not the plaintiff, that she did not have notice of it.
76 In determining this evidentiary issue, I have considered the credibility of each of the alleged participants. I found Mr Alford gave evidence in a straightforward manner and answered questions in a way I would expect of an honest witness. There was no significant attack upon his credibility. While it was submitted by Mr Gillies I ought have reservations about the credibility both of the first defendant and Mr Garth Evans, I made a similar assessment of their evidence. In my view, they each attempted to answer questions directly, made appropriate concessions and I found no basis upon which to reject their evidence.
77 I have concluded that what occurred was that a conversation did take place between the first defendant and his father with a person present at or about Lot 31 and that that conversation was to the effect as stated by the Evans. However, in my view, the conversation was not with Mr Alford but rather another person, probably Mr Sean Venning, one of the previous registered proprietors of Lot 31. I have come to that conclusion for the following reasons:
•
It is now more than twenty years since the conversation occurred and the capacity of any person to recall precisely what was said, and precisely with whom the conversation took place must, with the vagaries of memory, be difficult.
•
While both the first defendant and his father “knew Mr Alford from the district”, neither had met him. While undoubtedly in country areas persons living in the same district may become familiar by surname, having never met the person, there was no explanation as to how he was identified as Mr Alford.
•
The plaintiff took a transfer of the title to Lot 31 from the Vennings in 1988. Therefore, generally around the time the conversation was said to have taken place, the Vennings were registered proprietors.
•
Such a conversation would have been important to Mr Alford given that his wife to be had recently purchased Lot 31 and any revelation that the fence did not stand on title boundary, would have been significant. I accept Mr Alford’s denial that he had any knowledge of the conversation or that it ever occurred.
•
The plaintiff gave evidence that her husband did not relay any such conversation to her and I would have expected this to have occurred.
•
In my view, while I accept the conversation did occur, given the passage of time the first defendant and his father have innocently transposed the identity of the person with whom they had the conversation.
The Nature of the Plaintiff’s Possession of the Disputed Land from 1991 to
200678 When the plaintiff purchased Lot 31, I accept her evidence, and that of her husband, that they believed the land they were purchasing was all of the land to the north of the fence, including Lot 31 and the disputed land. I further accept that they were not made aware of any discrepancy as to the title boundary until 2009 when informed by the first defendant. I accept that throughout the fifteen-year period from 1991 until 2006, the plaintiff believed all of the land to the north of the fence was hers. She thus had the requisite animus possidendi. I accept she did not at any time see any member of the Evans’ family upon the land, and there was nothing to give rise to the view that she was anything other than the registered proprietor of the disputed land. However, the requisite intent is not, of itself, sufficient. It is necessary, further, that she prove she had factual possession of the land.[47]
[47] Buckingham Shire County Council v Moran [1990] Ch 623, at 636; Marsden v Miller (1992) 64 P & CR 239, at 242; JA Pye (Oxford) Ltd v Graham [2003] 1AC 419, at 435, 447
79 The plaintiff obtained title in 1988. From that time until 1993 she was not living upon Lot 31. For the first twelve months approximately she ran sheep on the property. This ceased after a dog attack. Thereafter she and her husband ran a number of calves. She said none escaped through the fence. Subsequently, internal fencing was undertaken and the stock were moved. No stock grazed on the property after 1993. Initially she and her husband-to-be slashed the property, particularly the bracken along the southern boundary. At some point they also grew potatoes in the area. They commenced the construction of their home in 1990 and moved in, in 1993. The southern part of Lot 31 became their garden area and was used by the Alford family for general suburban residential purposes. I accept that from 1991, and in the years following, in addition to this general use, the plaintiff and her husband placed various items of plant, equipment, timber and household articles along the southern boundary, and including on the disputed land. Off-cuts of timber and firewood were piled next to the fence. A compost bin was established using old material. The plaintiff’s children, as they grew, walked along and through the disputed land, and along a pathway to a swing beyond the property. Items including tennis netting, an aluminium window and a disused water tank with cardboard cylinders[48] were also placed upon the disputed land. The plaintiff’s husband and Mr Hudgell constructed a fence between Lots 31 and 32, including placing a gate upon the disputed land between the properties.
[48] DCB 243
80 In addition, equipment, including a trailer, power harrow and farming machinery was, from time to time, placed on the disputed land.
81 I accept Mr Alford carried out work from time to time on and around the fence. He strained it occasionally and cut and removed fallen branches from it. Over the last three or so years he had not maintained the fence, as particularly the two upper strands of barbed wire had deteriorated, as had the strainers at either end. There are now gaps in the fence and the wire is either at or slightly above ground level at a number of places. The current state of the disputed land is as set forth in the various photographs.
82 I accept the evidence of the plaintiff and her husband that work was commenced to construct a shed, or wood shed on part of the disputed land in approximately 1995. I accept the plaintiff’s evidence that Photograph 21[49] indicates the state of the shed as at 25 September 1995. I further accept that a garage was constructed in part upon the disputed land commencing in September 2004[50] and that construction continued until 2006. It is difficult to be precise as to the exact proportion of each of the shed and garage upon the disputed land, and whether cars entering the garage traversed the disputed land. But at least a proportion of each building was upon it.
[49] PCB 67
[50] Photograph 22, PCB 67
83 The question is then whether this use of the land constituted adverse possession?
84 In Whittlesea City Council v Abbatangelo,[51] the Court of Appeal, referring to comments made by Ashley J (as His Honour then was) in Bayport Industries Pty Ltd v Watson,[52] summarised the general principles as follows:
[51] [2009] VSCA 188 (31 August 2009)
[52] [2002] VSC 206, at paragraphs 39-40
(1) In the absence of evidence to the contrary, the registered owner of the
land is deemed in possession of it.(2)
A person seeking to establish title by adverse possession must have both factual possession and the requisite intention to possess (animus possidendi).
(3)
The question of what constitutes a sufficient degree of exclusive physical control must depend upon the circumstances, in particular, the nature of the land and the manner in which it is used.
(4) The requisite animus possidendi involves an intention supported by
clear and affirmative evidence to possess the land.(5) That intention must be to exercise exclusive control and a belief that he
or she is the true owner.(6) Enclosure by fencing indicates the requisite intention. (7) The possession must not be with the consent of the registered
proprietor.(8) Whether the proprietor realises that the dispossession has occurred is
not relevant.(9)
Possession requires a sufficient degree of physical custody and control. Individual acts, considered separately, may be equivocal, but considered collectively may amount to unequivocal evidence of the requisite intention.
(10)
Mere use, falling short of possession, is insufficient. There is no longer the requirement that the use put by the putative adverse possessor be inconsistent with the registered proprietor’s present or future intended use of the land.[53]
[53] See Monash City Council v Melville [2000] VSC 55, at paragraphs 33-34
85 The contention of Mr Fraatz for the first defendant was that regardless of the possessory acts undertaken by the plaintiff, she had to establish “discontinuance of possession” of the first defendant. Even the slightest act undertaken by an owner would negative such discontinuance of possession.[54] He submitted that the actions by the first defendant or members of his family coming upon the disputed land to undertake weed maintenance, and further, the payment of rates, was a sufficient act to conclude there was no discontinuance of the Evans’ possession. In my view, that argument is misconceived. Before 1991, the disputed land was not owned by the Evans’ family. It was owned by the Shire as part of the old government road. Their title to the disputed land, and the resultant possessory right, only became established at that point. There was no suggestion the Evans had adverse possessory rights before then. I do not accept the proposition that the Evans had any equitable right to the disputed land before 1991. There is no evidence to that effect.
[54] See Powell v McFarlane (1979) 38 P & Cr 452, at 472; Santucci v Barnes [1992] V ConvR 54-434 and Kirby v Cowderoy [1912] AC 599
86 The submission appears to follow the principle established by Leigh v Jack.[55] In that case, it was said that in order to dispossess an owner’s right, acts must be undertaken which are inconsistent with the purpose for which the owner intended to use the land, both at the present time and into the future. The rule has now limited application. In Monash City Council v Melville & Anor,[56] Eames J (as His Honour then was) stated:
[55] (1879) 5 Ex D 264
[56] (ibid) at paragraphs 33-34
“[33]
To the limited extent that the rule [the rule in Leigh v Jack] still applies, its effect, now, is as follows. Where the trespassers' 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; Likewise, 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.
[34]
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.”
87 Regardless of the Evans’ intention for the land, or their concept of ownership, the question is not that the plaintiff establish discontinuance of possession, but rather whether the plaintiff’s acts constituting possession of the disputed land, together with the requisite intention, amounted to adverse possession, inconsistent with the title of the true proprietor.
88 I have concluded that the acts of the plaintiff and her husband, as referred to above, do constitute possession adverse to the title of the first defendant. The nature of the possession of the plaintiff indicated a clear degree of physical control over the disputed land. That possession was constituted by various acts, including the use of the land as part of the garden, the placing of the various items of machinery and materials upon it, and the maintenance by Mr Alford of the fence over the years. That use and possession was, in my view, clear and exclusive. In all reasonable respects, the plaintiff dealt with the land as if it was hers.
89 It is clear that the rates on the disputed land were paid by the first defendant. However, that is only slight evidence in favour of the first defendant.[57]
[57] See Bree v Scott (1904) 29 VLR 692, at 701,702; O’Neil v Hart [1905] VLR 107, at 120
The Fence and its Condition
90 Enclosure on a continuous basis of land said to be adversely possessed by fencing is significant in determining whether possession of that land has been taken.[58]
[58] Robertson v Butler [1915] VLR 31
91 The fence was constructed by Mr Garth Evans in the 1960s. There was much evidence about the state of disrepair of the fence over the relevant period. According to photographs taken in 2009,[59] it was, at that time, in a state of considerable disrepair. I accept there were gaps in the fence, the strainers at either end were rotten, and the upper strands were of little use. I accept the evidence of the plaintiff and her husband that they ran stock on the property from 1988 to approximately 1993. I accept that over that period, the fence was in reasonably good repair, and capable of holding stock. The first defendant asserts that when he came upon the disputed land over the years from 1991, he was able to enter the property either through gaps in the fence, or from a gap at the south-west boundary of Lot 30. It is difficult from the evidence to be precise as to the state of the fence at any particular point in time. I accept Mr Alford did maintain the fence from time to time over the years from 1993 and that in the last three or four years it has become seriously dilapidated. In the end, the state of the fence over the relevant period is not determinative. It may be that there were gaps in the fence and that it was in a state of disrepair. However, the plaintiff and her husband believe that it marked the southern boundary of their property. The fact that it admitted members of the Evans’ family over the years did not alter the view of the plaintiff as to her entitlement.
[59] PCB 57-71
The Weed Management Program and Entry by Members of the Evans’ Family onto the Disputed Land
92 I accept the evidence of the first defendant, and other members of his family, that during the period before 1991 and to the present time, they regularly entered the disputed land either by climbing over or through the fence, or obtaining entrance from the gap in the fence at the southern end of the western boundary of Lot 30. The purpose was to undertake a weed management program of generally the whole of their property, including the disputed land. It is clear the disputed land did not form part of the quarry area in respect of which the Evans, in order to comply with the extraction permit, were required to undertake a weed control program. However, I accept their evidence that both as part of good farming practice, and in order to maintain a “buffer zone” around the quarry area, on about two occasions each year they would go onto the disputed land and pull from the ground various weeds, including blackberry, thistle and ragwort.
93 In the course of such visits, it is somewhat curious that, upon entering the disputed land and observing the use to which it was put by the Alfords, that steps to reassert their proprietorial rights, were not taken. Nonetheless, I accept that on approximately two occasions each year, generally in spring and summer, the inspection and weed removal occurred. The question which arises then is whether those entries were sufficient to interfere with the maturing of the plaintiff’s possessory title.
94 It is undoubtedly correct that the first defendant resumed possession of the land in 2009 by removing articles and structures on the disputed land and attempting to reinstate a fence on the title boundary. However, this was not until after the fifteen-year period required by the statute closed. Whether possession has been retaken is a question of fact. Acts that would be sufficient upon a small parcel of land may be insufficient over a large parcel of land, and vice versa. In Robertson v Butler,[60] entry upon disputed land, walking over it from time to time, shooting rabbits upon it and picnicking upon the land which was open grazing country three or four times a year was deemed not to be a retaking of possession by the documentary owner. Entry onto land for the purposes of a survey to mark out definitive boundaries may be sufficient to retake possession of a parcel of vacant land.[61] However, entry upon a suburban lot for the purpose of preparing an application to establish possessory title was found not to be sufficient.62 The entry to assert title by the true owner is ineffective to interrupt the period unless it amounts to a resumption of possession.63 Once such possession is resumed, even for a short period of time, the owner’s title is reinstated.64
[60] (ibid) at 37
[61] See Hodgson v Thompson (1906) 6 SR (NSW) 436, at 440; Scanlon v Campbell (1911) 11 SR (NSW)
95 In determining whether there has been a resumption of possession, it is necessary to assess not only the actions of the first defendant, but the nature of the use of the disputed land by the plaintiff. At the time of the inspections by the first defendant and his family, it would have been clear that the plaintiff was using the land for various purposes, including the storage and placement of materials and equipment and the use of the area generally as part of the plaintiff’s backyard. In my view, in order to renew possession, the first defendant would, in the circumstances of this case, be required to take such action as to make it clear to the plaintiff that he intended to resume possession. A mere walking upon the land which was not brought to the knowledge of the plaintiff or her family in any way, in my view, was insufficient. The first defendant ought to have taken such steps to make it clear to the plaintiff that he intended to resume possession. The steps taken in the circumstances were not sufficient.
Conclusion
96 At the time the Evans family became proprietor of the disputed land, upon transfer from the Shire of Colac, in April 1991, the plaintiff was in possession of the disputed land, both in terms of the use of the land as described above, and having the necessary intention to possess the land.
97 Such was the nature of the possession from that time until April 2006, the right of the first defendant to recover the land, pursuant to s.8 of the Limitation of
239
Phillips v Marrickville Municipal Council (2002) 11 BPR 20, 135
‘Halsbury’s Laws of England’ (2nd ed.) Vol XX, page 710
Symes v Pitt [1952] VLR 412, at 430-431
Acts Act, was lost. The nature of the possession by the plaintiff satisfied the requirements of s.14 of the Limitation of Actions Act.
98 The occasional re-entries upon the land by the first defendant and his family over the relevant fifteen years was not sufficient to dispossess the plaintiff and reinstate the first defendant’s true title. Thus, pursuant to s.18 of the Limitation of Actions Act, the title of the first defendant to the disputed land was extinguished as from April 2006.
99 I shall hear from the parties as to the appropriate orders to be made and as to costs.
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