Bayport Industries Pty Ltd v Watson
[2002] VSC 206
•12 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7737 of 2000
| BAYPORT INDUSTRIES PTY LTD | Plaintiff |
| (A.C.N. 005 107 031) | |
| v | |
| GLENTON and HENDRIKA WATSON and THE REGISTRAR OF TITLES | Defendants |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 May 2002 | |
DATE OF JUDGMENT: | 12 June 2002 | |
CASE MAY BE CITED AS: | Bayport v Watson | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 206 | |
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Real property – adverse possession – significance in the particular circumstances of enclosure by fence predating establishment of title boundary.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Phillips | Taylor Splatt & Partners |
| For the first and second Defendants | Mr D. Klempfner | Goldstein Partners |
| For the third Defendant | No appearance |
HIS HONOUR:
The Plaintiff’s claim; and some basic geography
The plaintiff, Bayport Industries Pty Ltd (“Bayport”), is the registered proprietor of two parcels of land. One parcel is in Pottery Road, Tyabb. Having account of an extension at its south east corner, I estimate the paper title area of this parcel of land to be about 22 hectares. Pottery Road runs approximately east and west. It terminates at the eastern boundary of the plaintiff’s land.
The first and second defendants[1], Glenton and Hendrika Watson (“the Watsons” or “the defendants”), are the registered proprietors of a parcel of land which fronts Webb Lane, Somerville. According to its title boundaries it is a little less than 4.4 hectares in size.
[1]There is a third defendant, the Registrar of Titles. He took no part in the proceeding before me.
The plaintiff’s second parcel of land also fronts Webb Lane. It is to the north of the defendants’ land, and is about four hectares in area.
Webb Lane runs approximately north and south. It is west of Pottery Lane. The Watsons’ land is on its eastern side. So is the second parcel of the plaintiff’s land.
The consequence of the geography which I have described is that the first parcel of the plaintiff’s land (which I shall call “the claypit land”) abuts the rear, that is, the eastern, boundary of the Watsons’ land; whilst the second parcel of the plaintiff’s land (I shall call it “the plaintiff’s other land”) abuts the northern boundary of the Watsons’ land. The plaintiff’s land, in its totality, assumes an inverted “L” shape around the Watsons’ land.
The plaintiff’s case, as it was confined at trial, was that it had obtained title by adverse possession to a strip of land along the rear of the defendants’ land. In that connection the plaintiff claimed and the defendants denied that for more than 30 years up to about June 2000 the boundary between the claypit land and the defendants’ land was constituted by a post and wire fence which was some 11.5 metres west of the true boundary.
The area of land in dispute has been surveyed to be 1627 square metres, that is, less than a fifth of a hectare. It is, to emphasise the tragedy of this costly litigation, less than five percent of the paper title area of the defendants’ land; and less than one percent of the paper title area of the claypit land.
Although, by its statement of claim, the plaintiff relied upon a 30 year period of possession up to about June 2000, the case as presented at trial fixed upon the 15 year period commencing September 1968 and ending September 1983. According to the plaintiff’s case, adverse possession began in September 1968 when the claypit land and land including the defendants’ land went into different ownerships; and by September 1983 the limitation period prescribed by s. 8 of the Limitation of Actions Act 1958 was at an end.
The new fence: and the north/south fence
There is no doubt in or about June 2000 the defendants erected a new fence on the title boundary at the eastern end of their land; and that the fence then erected was about 11.5 metres to the east of an existing post and wire fence, which fence was later removed by or at the instance of the defendants. The evidence of the surveyor, Mr Lovelock, who had reference to field survey notes made in 1966 and 1999 and to a field card compiled in 1999, and who made his own investigations, has satisfied me that the fence which the defendants demolished was on the same line as a fence which existed when surveys were done in 1966 and 1999. Mr Lovelock’s evidence has also satisfied me that both in 1966 and 1999 this fence line, which at one point stepped to the east, continued a considerable distance in a southerly direction beyond what is now the southern boundary of the defendants’ land. Mr Lovelock’s evidence did not show that, where the step in the fenceline occurred, the apparent end of one fence and the beginning of the other were joined. But other evidence, to which I shall later refer, shows that there was such a connection at relevant times. It is convenient hereafter to describe the fenceline as the north/south fence.
Ownership and uses of pertinent land
For a period up to September 1968 the claypit land, the plaintiff’s other land, the defendants’ land and land to its south were owned by a Mr and Mrs Rule. Apart from those parts of the claypit land used in connection with the excavation of clay for use in a pottery works which was situate in the north east quadrant of the claypit land (the works were used to manufacture items such as roofing tiles), the land was used for grazing stock and in part as orchards.
The common ownership of which I have just spoken finally ended in September 1968. The registered proprietor of the claypit land, as I have described it, was then Peninsula Pottery Industries Pty Ltd (“Peninsula”). What I have described as the plaintiff’s other land, having become Lot 1 on Plan of Subdivision 75024 in early 1967, was also in the ownership of Peninsula. Lot 2 on Plan of Subdivision 75024, which included what has now become the defendants’ land as well as land to its south, was transferred to the ownership of Camberwell Potteries Pty Ltd (“Camberwell”) on 11 September 1968.
In the period between September 1968 and December 1995, the latter being the time at which the plaintiff took transfer of title to the claypit land and its other land, those parcels passed through several ownerships. K. Woolnough & Co Pty Ltd (“Woolnough”) became the registered proprietor on 8 May 1979 and Aychar Pty Ltd (“Aychar”) on 20 November 1991. It seems that the second of those companies went into liquidation. The plaintiff’s purchase of the land was effected through Aychar’s liquidator.
Camberwell continued ownership of the land comprising Lot 2 on the 1967 Plan of Subdivision until that land and other parcels to the south which it had acquired in 1968 were the subject of a three lot subdivision (numbered 429034R) in 2000. The plan of subdivision was approved on 7 January that year; and the defendants took title on 10 February.
The defendants’ land, as will now be apparent, is part of what was Lot 2 on the 1967 Plan of Subdivision. What I have called the north/south fence extended the length of Lot 2. It is convenient to refer, then, to “the Lot 2 land” in considering the present dispute; that is, on one side of the fence was the claypit land; and on the other, the Lot 2 land.
The field notes and the field card to which Mr Lovelock had reference were made, as will now be apparent, in connection with the plans of subdivision which were respectively approved by the Land Titles Office in 1967 and 2000.
More evidence concerning the north/south fence
The evidence of Mr William Rule, son of the Mr and Mrs Rule whose family owned the pertinent land until 1967, who began to work at the pottery on the claypit land in 1955, who worked consistently though not continuously on that land until about 1971, and who agisted horses on Lot 2 from the early 1970s until four to five years ago, has satisfied me that the north/south fence depicted on the 1966 field notes
¨ was the same fence as was shown on the 1999 field notes and field card;
¨ was connected, at the point where its alignment varied, at all times between September 1968 and Mr Rule’s last involvement with the Lot 2 land in the late 1990s;
¨ was not in good repair in 1968, or at any time thereafter, being old and not effectively stock proof;
¨ dated from a time when it served as an internal fence constructed for stock management purposes[2].
[2]That is also the picture which emerges, I think, from a number of Certificates of Title introduced into evidence, for example Certificate of Title Volume 6138 Folio 538, part of Exhibit 4.
The evidence of Mrs Dorothy Sincock, who with her late husband and then on her own account grazed cattle on Lot 2 for about 17 years until early 2000, confirmed – in respect of the period of which she could speak – the evidence of Mr Rule. Mrs Sincock emphasised:
¨ the run-down nature of the north/south fence at all times; and
¨ the circumstance that it was she, her late husband and later her son, who effected repairs to the fence so as to get and keep it upright, so making it better stock proof.
The evidence of Mrs Sincock further showed, in the period of which she could speak, that the claypit land immediately to the east of the north/south fence, which includes the land now in dispute, was really wasteland. Bearing in mind the fact that the period upon which the plaintiff focussed began in September 1968 and ended in September 1983, the relevant period of Mrs Sincock’s observations, the accuracy of which I accept, was quite short.
Activities conducted on the claypit land
In September 1968 and for years thereafter the claypit land was used for the production of tiles and other clay-based products. Manufacturing was carried out in the premises to which I have already referred. Clay was excavated at several sites which were on the eastern portion of the land. Excavations left an area or areas into which fill could be dumped. The plaintiff, which operates road construction and property development businesses, first accessed the land as a dump site more than 20 years ago.
In the late 1960s a large open sided shed was erected on the western portion of the claypit land, more or less adjacent to the rear of the defendants’ land, and some distance east of the title boundary. This shed was used for the storage of clay, to keep the product dry.
In the 1990s a second, a smaller building, was erected in the vicinity of the existing shed; and the existing shed was enclosed. The now enclosed shed was used as a crushing plant, and the smaller shed was used for the production of vermiculite.
The area behind these two buildings has been used for some period of time as a storage area and/or dump. At least in 2000 the stored or dumped material was some one and half metres or so in height. There is no evidence that the area to which I am now referring was used for storage or as a dump before September 1983. Having regard to the time at which and the purposes for which the two sheds were erected, it is improbable that it was. The area used for storage or dump purposes has never, so far as the evidence revealed it, extended westwards as far as the disputed strip of land.
I heard evidence that the buildings gave rise to collection of storm water, and that open drainage channels were constructed to carry the water away. The evidence showed that as at 2000 one of those drainage channels extended onto the disputed land. According to the evidence of Mario Torossi, a director of the plaintiff, that channel was present when the plaintiff acquired the land in 1995; but the plaintiff improved it.
Evidence that the channel was present before 1995 was disputed by the evidence of Mr Ron Evans, formally manager of Aychar, registered proprietor of the claypit land between November 1991 and December 1995. Elsewhere I remark upon unsatisfactory aspects of Mr Evans’ evidence. But it is not necessary to resolve the conflict between this aspect of his evidence and Mr Torossi’s evidence. The direct evidence would not on any view support an inference that a drainage channel was present on the disputed land before September 1983.
Putting the drainage channel aside, there is no evidence that the plaintiff’s predecessors (I shall use that term to describe Peninsula and Woolnough, except where I indicate otherwise) made any active use of the disputed land in the period upon which the plaintiff particularly relied at trial. The picture is one of a large area parts only of which were used by the plaintiff’s predecessors for specific purposes. There were things that the plaintiff’s predecessors might have chosen to do on the disputed land – drain it, spray blackberries or fern growing upon it, or even extract material from it. But there is no evidence that either of them did any of these things in the period upon which the plaintiff relied; or even for a considerable period thereafter. Moreover, the evidence of Mr Rule and Mrs Sincock does not suggest that the plaintiff’s predecessors undertook any repair work to the north/south fence. The only evidence concerning repair work was that given by Mrs Sincock; and a fragment in the evidence of Mr Rule. The impact of that evidence is that any fencing repairs were done by those in occupation of Lot 2, in order to contain stock, whether cattle or horses.
In speaking of what was done on the claypit land I have referred to a number of matters of which there was no evidence. That highlights the fact that the plaintiff called no evidence from any of its predecessors in title – most particularly, Peninsula and Woolnough. No evidence was led that either of those predecessors had ceased to exist; or, if either of them had done so, that no individuals who might have spoken about the matters of which the plaintiff adduced no evidence could be located; or that such persons, if located, were for some reason unavailable to give evidence.
Perimeter Fencing
One matter about which there was some evidence concerning the claypit land and the plaintiff’s other land – albeit not given by the plaintiff’s witnesses – was the state of enclosure of the plaintiff’s land in and after 1968. Mr Rule, called for the defendants, was cross-examined about perimeter fencing. Many of the questions which he were asked were framed in the present tense. Not all. His evidence about the overall state of enclosure of the plaintiff’s land was very uncertain. I am unable to conclude from his evidence that perimeter fencing was complete in 1968, in the period between 1968 and 1983, or in the period up to 1995 when the plaintiff acquired the land.
Mr Evans, also called for the defendants, gave evidence in cross-examination about the state of perimeter fencing as at April 1990. He described fencing some of which was reasonably good, some of which was dilapidated, some of which was lying down, and some of which he did not characterise. In one section of the perimeter “it was part fenced and part just trees”[3]. The mode of construction of the fences which the witness described was not explored in cross-examination. Mr Evans’ evidence, the reliability of aspects of which I doubt elsewhere in these Reasons, does not add to the uncertain evidence of Mr Rule concerning the state of perimeter fencing generally in the period between 1968 and 1983; or, indeed, the period up to 1990.
[3]Transcript 138 lines 24-5.
The north/south fence revisited
I have already described, on a number of occasions the north/south fence as I conclude it was constituted in the period 1968 to 2000. I do not doubt, as I have said, that it was always in poor repair and that, latterly at least, it was supported by blackberry bushes and ferns. Nonetheless, so far as it could have conveyed an appearance of being the boundary between the claypit land and Lot 2, I am satisfied that there was no other fence which could have conveyed that impression at any pertinent time. Moreover, the submission made by counsel for the defendants that the pile of rubbish or stored material which accumulated sometime late in the piece behind the two buildings situate on the west of the land constituted the evident barrier or boundary between the claypit land and the defendants’ land could not be seriously entertained.
My conclusion that there was no fence other than the north/south fence which could have conveyed the impression that it marked out the boundary between the claypit land and Lot 2 requires some elaboration. I must refer to the evidence of Mr Evans. He said that he inspected the western extremity of the claypit land in April 1990. He observed two fences running from north to south. Both were lying down. One of the fences he described was evidently the north/south fence. The second was some distance east of that fence. It was, the witness said, totally run down. It was “a non event”[4]. It was “totally enthralled in blackberries”[5]
[4]Transcript 146 lines 29-30.
[5]Transcript 147 lines 9-10.
The witness gave evidence that he removed this fence and laid an open drainage channel where it had previously been. He described poles that were required to be put in each corner of the property by the extractive industry licence which applied to the claypit land. He said:
“… when I first toured the place I came by four wheel drive, had a look around what was obviously boundaries and picked a line between the two poles where there was a run down fence, and decided that would be boundary, and we put our drain in along there.”[6]
[6]Transcript 138 lines 8-12.
The witness said that the fence which he removed was 20 metres east, he was guessing, to the west of a dam situate at the eastern end of what is now the defendants’ property[7]. Close to trees on the eastern side of the dam was the second fence which he described in his evidence. That fence, he said, “wasn’t on my property. It meant nothing to me.”[8]
[7]Transcript 140.
[8]Transcript 141.
According to the witness, the area between the two lying down fences had been grazed by animals and was reasonably clear[9].
[9]Transcript 136 line 23 to Transcript 137 line 12; Transcript 142 lines 26-29.
Finally, I should note, the witness said that to his personal knowledge stock strayed on to the claypit land from Lot 2 five times in eight years – that is, after he removed the fence to the east of the north/south fence.
I do not consider that Mr Evans was a reliable witness in the connection now under discussion. I do not accept his evidence that in April 1990 the north/south fence was lying flat, although I have accepted that it was always in poor condition. I do not accept Mr Evans’ evidence that the land immediately to the east of the north/south fence was grazed by cattle, except on the infrequent occasions when cattle strayed. According to the witness, on his first inspection of the claypit land he noticed signs of cattle having grazed an area between the two fences that were lying down; but not, it seems, beyond the eastern of those two fences. Then, according to his evidence, he removed one of the fences; yet in eight years he knew of stock straying to the east of the other fence (that is, the north/south fence) on only five occasions. His evidence did not fit together.
Counsel for the defendants seized upon Mr Evans’ evidence that there was a collapsed fence, which he removed, on what he said was the western boundary of the claypit land. Counsel asked me to accept the evidence that this fence existed. He urged me to infer that it had been erected after the 1967 subdivision to mark the boundary; and that it had simply collapsed with the passage of years. Counsel for the plaintiff submitted, to the contrary, that I should reject Mr Evans’ evidence as to the existence of a second fence, a fence referred to by no other witness. He contended also that if the fence did exist, it said nothing to gainsay the plaintiff’s predecessors in title having taken an interest in the disputed land by adverse possession.
In my opinion the evidence of Mr Rule and Mrs Sincock was quite inconsistent with there having been a new fence erected on the title boundary in or after 1967. Bearing in mind the fact that the fence of which they gave evidence had evidently been erected before 1967, it would be pretty remarkable if a fence erected after that date had collapsed before the older fence. It would also be remarkable, if a new fence had then been erected, that Mr Rule would not have recalled it – especially as it could have been expected to have been a substantial barrier to his horses straying in the early 1970s. Unless it was a fence with an extraordinarily short life span it would also be remarkable, assuming it was constructed in 1967 or thereabouts, if it had not been observed by Mrs Sincock when her stock strayed in the early 1980s.
I do not reject Mr Evans’ evidence that he found an old fence, completely collapsed, some distance east of the fence to which the other witnesses referred. I think that it must have been a very old internal fence, long pre-dating 1967. I consider it is clear that it played no role in defining the apparent boundary between the claypit land and the Lot 2 land whether in 1967 or thereafter. Whether the fence was in fact on the title boundary is quite uncertain. I doubt it. Had it been on the title boundary I would have expected some mention of it in the 1966 field notes.
The applicable principles
The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane[10]. 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 conclusive 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 requisition animus possidendi and consequently as not having dispossessed the owner.”
[10](1979) 38 P and CRL 452 at 470-472; cited with approval in Petkov and Ors v Lucerne Nominees Pty Ltd and Ors (1992) 7 WAR 163 at 167.
To those principles should be added and/or highlighted the following:
¨”When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804.[11].
¨As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn C.J. said in Seddon v. Smith (1877) 36 L.T. 168, 1609: ‘Enclosure is the strongest possible evidence of adverse possession.’ Russell L.J. in George Wimpey & Co. Ltd. v. Sohn [1967] Ch. 487, 511A, similarly observed: ‘Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.[12]
¨It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd. v. Chamberlain, 20 P. & C.R. 633, 642, per Sachs L.J.”[13]
¨A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession[14].
¨Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed[15]. The cases cited by counsel for the plaintiff were not this case, as counsel accepted. There, the adverse possessor had made active use of some of the disputed land. The question was whether that use constituted possession of the whole. In the present case the plaintiff rather pointed to active use of part of the land of which its predecessors were the paper title owners to assist a conclusion that they possessed and intended to possess all the enclosed land.
¨Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal[16]. The present case is, I should say, factually different to the type of case to which this proposition essentially refers.
¨At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned[17].
[11]Petkov at 168.1; see also Malter and Anor v Procopets [2000] VSCA 11 at para. 5 per Brooking JA.
[12]Buckingham Shire County Council v Moran [1990] 1 Ch 623 at 641 H – 642 A. See also Petkov at 168.5. But despite enclosure the requisite intention may be absent. George Wimpey and Co Ltd v Sohn [1967] Ch 487, cited by Slade LJ in Moran was such a case. See also Clement v Jones (1909) 8 CLR 133 and Riley v Penttila [1974] VR 547.
[13]Moran at 642 E per Slade LJ.
[14]Shelmerdine and Anor v Ringen Pty Ltd and Anor [1993] 1 VR 315 at 341 lines 29-45.
[15]Higgs and Anor v Nassauvian Ltd [1975] 2 WLR 72 at 78H to 79B and 79F to 80B. See also The Lord Advocate and the Trustees of the Clyde Navigation v Lord Blantyre and ors [1879] 4 App Cas 770 at 791 - 792 per Lord Blackburn and at 798 - 799 per Lord Hatherley.
[16]Powell at 472, 476.
[17]See Australian Real Property Law, Bradbrook MacCallum & Moore, para. 16.69 and the cases there cited.
Resolution of the proceeding
The plaintiff’s claim to an interest in the disputed land by adverse possession, as its case was presented, depended very greatly upon the existence of the north/south fence in the period 1968 to 1983[18]. Counsel relied upon authorities which say that enclosure is strong evidence of adverse possession – an act of possession and an indication of an intention to possess the enclosed land to the exclusion of the world at large. Counsel met the fact that there was no evidence that the disputed land was actively used by the plaintiff’s predecessors at any relevant time by emphasising that the uses to which the claypit land was characteristically put were such as involved use of parts only of that land. Higgs was said to be a relevant analogy. Counsel met the circumstance that the north/south fence was, before 1967, almost certainly no more than an internal fence by submitting that it took on, to appearances, a different guise after subdivision and sale. He submitted that taking possession of land already enclosed should not be regarded as insignificant; though he conceded, at least implicitly, that his client’s case would have been stronger had one of his client’s predecessors erected a new fence on the same line after the 1967 subdivision. He went on to submit that after September 1968 the plaintiff’s predecessors evidently asserted dominion over and occupation of all the land enclosed by perimeter fencing, which fencing included the north/south fence. Had the owners from time to time been asked what was their land, he submitted, they would have said that the land within the perimeter fencing was theirs and possessed by them. He contended that the evidence showed that the whole of the plaintiff’s land had been enclosed since September 1968 He argued that the rightful owner of the disputed land discontinued possession on 11 September 1968[19].
[18]Counsel made it clear, on a number of occasions, that it was not the plaintiff’s case that anything which occurred after 1983 was relevant. See, eg, Transcript 223.
[19]As to “dispossess” and “discontinuance of possession” see Rains v Buxton (1880) 14 Ch D 537 at 539-540.
Counsel for the defendants submitted, apart from matters which I have already mentioned in the course of these Reasons, that the presence of the north/south fence was not an act of possession of the disputed land as would support a finding of intention to possess that land. He contended that the fence was never more than an old internal fence, and that the import of any enclosure it thereby created was equivocal. He pointed out that the plaintiff’s predecessors had not, on the evidence, actively used the disputed land. I had not heard from them at all. The fence, he submitted, had been used by the occupiers of Lot 2 in the period upon which the plaintiff relied as a means of containing stock; no more. The occupiers of Lot 2 had done some repair work on the fence for stock containment purposes. There was no evidence that the plaintiff’s predecessors had done any work on the fence in the relevant period. What was critical was whether the plaintiff’s predecessors had exercised possession over the disputed land, with the relevant intent. These were matters of which the plaintiff must satisfy me; and it had not done so.
I am not satisfied, considering all the circumstances of the particular case, that the plaintiff’s predecessors in title, most particularly between September 1968 and September 1983, had factual possession of the land accompanied by the requisite intention. True it is that the disputed land was enclosed behind the north/south fence in that period. On the other hand, it must have been evident to the plaintiff’s predecessors, had they given the matter a moment’s thought, that the fence had started life well before the 1967 subdivision as an internal fence, for farming purposes. It could not be assumed that such a fence followed a title boundary. Moreover, its east/west alignment altered partway along its length; and at its northern end it intersected, as at 1966, with another old fence, running east/west, which again did not run straight but was rather stepped. Recourse to relevant Certificates of Title would have confirmed that the north/south title boundary was straight, and that it intersected to the north with a title boundary running east/west in a straight line. The fence was, by its obvious history and physical disposition, quite unlike a suburban fence built on the wrong alignment.
Against that background, I heard no evidence from the plaintiff’s predecessors. Perhaps one or both of them investigated the matter, knew the true situation, and was simply content to let the fence stand as a practical barrier but without any assertion thereby of possession of the presently disputed land. Perhaps one or both of them knew of the true situation, and had an actual intention of assuming title by possession in due course. Perhaps, again, neither Peninsula nor Woolnough addressed the significance of the fence at all. Each of these possibilities is in the realm of speculation. I mention them so as to point out the evidentiary deficiencies in the plaintiff’s case. Perhaps I would be entitled to draw some inference adverse to the plaintiff having regard to the matters mentioned in paragraph 26 of these Reasons. I do not do so. The simple fact is that no evidence was adduced from the plaintiff’s predecessors concerning the variety of matters to which I have referred in this and other paragraphs.
There was some force to the submission for the plaintiff that, having regard to the uses to which the claypit land was put, nothing should be made of there being no evidence of active use of the disputed land by its predecessors in title during the critical period. I also accept that use of part of the land might constitute an act of possession of the whole in a particular case. But the question whether use of paper title land in a particular case is an act of possession in respect of that land and of additional land must depend upon the particular circumstances. In the present case I do not regard the activities on the paper title land as assisting a conclusion concerning factual possession and intention to possess the disputed land – whether considered discretely or in combination with other matters. The plaintiff’s predecessors, conducting the operations they did, really had little cause for interest in the title boundaries of the claypit land – unless and until they proposed to do works close thereto. There was nothing on the claypit land, so far as the evidence went, which was at risk of escaping. Any risk was in the other direction. Concerning that risk the plaintiff’s predecessors had no cause for concern; and, on the evidence, showed no concern. Why should it have mattered to them that stock were straying beyond the fence? They were not grazing the claypit land. In a practical sense, the fence constituted a barrier useful for the occupiers of Lot 2 land. But that says nothing about possession or intention to possess on the part of the plaintiff’s predecessors. I accept that it is normally impracticable to effect absolute physical control over open land. But that is not a very significant consideration in favour of the plaintiff in the present case.
The submission for the plaintiff that its relevant predecessors in title asserted dominion over and possession of the land enclosed by the perimeter fencing, this including the land enclosed by the north/south fence, in my opinion does not assist the plaintiff to a favourable determination. First, the evidence as to the existence and state of the perimeter fencing generally in 1968 and thereafter until 1983 (in fact until 1990) was weak and imprecise. I could not conclude that there was perimeter fencing which plainly charted the extent of land over which the plaintiff’s predecessors asserted dominion and of which they claimed possession. Second, even if all other sections of the perimeter of the claypit land and the plaintiff’s other land had been definitively fenced during the pertinent period, I doubt that any assertion thereby of possession of all enclosed land would extend – in light of issues which I have raised concerning north/south fence – to the disputed land.
Conclusion
The plaintiff has not proved its case. There must be judgment for the defendants.
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