Biki v Chessells - [2004] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6858 of 2000

JANKO BIKI & ANOR
	Appellants
v.
GRAEME WILLIAM CHESSELLS	Respondent

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JUDGES:	WINNEKE, P., ORMISTON and EAMES, JJ.A.
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	25 March 2004
DATE OF JUDGMENT:	3 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 70

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Real Property – Easement to construct and use water channel on 10m. strip – Ancillary rights – Express powers in grant to repair and alter channel and to “go pass and repass” for that purpose – Whether inconsistent with further implied ancillary right to come on adjacent parts of servient tenement to repair etc. channel – Grant “covered the field” in relation to ancillary rights to repair – Whether possible further rights in emergency.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Dr C. Pannam, Q.C. with Mr S. Horgan	Cassidys Morrison & Teare
For the Respondent	Mr Mark Derham, Q.C. with Mr R. Attiwill	Camerons

WINNEKE, P.:

I agree with Ormiston, J.A., for the reasons which he gives, that this appeal should be dismissed.

ORMISTON, J.A.:

This appeal arises out of an unfortunate dispute between neighbours who farm land in the vicinity of Invergordon, a small rural settlement in the Goulburn Valley, some thirty or so kilometres north-east of Shepparton. The dispute concerns the form and effect of an easement, and especially the right to repair and maintain a water channel constructed under the easement, which was granted in 1987 by Douglas John Chessells, the brother and predecessor in title of the respondent, to Mr and Mrs Ruscoe, the predecessors in title of the appellants, and of an equitable easement in virtually identical terms (and the same right thereunder) affecting the lands of the appellants and respondent. The easement in question, in substance if not necessarily in form, is of a kind not unfamiliar to those who live in the Goulburn Valley, for it provided to the Ruscoes, who farmed land north of Invergordon Road, a right, briefly stated, to enter and, from time to time, to go and pass along a designated strip some ten metres wide extending over land south of Invergordon Road owned by Mr Douglas Chessells and to dig and construct, and thereafter to use and repair, a water channel along the designated land which was intended to carry water from the East Goulburn Main Channel across Mr Chessells’ land for the purpose of irrigating the Ruscoes’ land, now owned by the appellants. In short, the appellants have claimed a general right to come in addition onto those parts of the servient tenement “immediately adjacent” to the easement as being “reasonably necessary” to carry out repairs and maintenance to the channel. The learned judge, Byrne, J.[1], refused to make an order declaring such a right, and from that refusal the appellants have appealed.
[1][2002] VSC 501.

The easement so granted on 4 December 1987, created pursuant to the Transfer of Land Act 1958, was expressed in terms that Douglas John Chessells as the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Biki v Chessells

Details

AGLC: Biki v Chessells [2004] VSCA 70
Case: [2004] VSCA 70
Decision Date: 3 May 2004

CaseChat Overview and Summary

In the case of Biki v Chessells, the dispute arose between the parties regarding the interpretation and scope of an easement concerning the use and maintenance of a water channel on a 10-metre strip of land. The court was tasked with determining whether the express powers granted in the easement, including the right to repair and alter the channel and to "go pass and repass" for that purpose, precluded the possibility of further implied ancillary rights to access adjacent parts of the servient tenement for the purpose of repairing or maintaining the channel. The case was heard in the Supreme Court of Victoria.

The central legal issues revolved around the extent of the rights granted in the easement and whether these rights were exhaustive or if they left room for additional implied rights. Specifically, the court had to decide whether the express powers granted in the easement to repair and alter the channel, and to pass and repass for that purpose, covered all possible ancillary rights, or if there was scope for an implied ancillary right to access adjacent parts of the servient tenement in emergencies or for repairs. The court also had to consider the doctrine of "covering the field" in the context of ancillary rights to repair, and whether this doctrine applied to preclude additional rights.

The court concluded that the express powers in the easement comprehensively covered the necessary ancillary rights to repair and maintain the water channel. The court found that the grant explicitly included the rights to repair and alter the channel and to pass and repass for that purpose, which the court deemed to be exhaustive in nature. This meant that the grant "covered the field" in relation to the ancillary rights to repair the channel. Therefore, the court held that no further implied ancillary rights could be invoked to access adjacent parts of the servient tenement for these purposes. The court emphasised that the grant's express terms left no room for additional rights, even in emergency situations.

The final orders of the court reflected its reasoning, affirming that the easement did not provide for any implied ancillary rights beyond those expressly stated. The court held that the rights to repair and maintain the channel were limited to the express terms of the grant, and that any attempt to access adjacent parts of the servient tenement for such purposes would be beyond the scope of the easement.

Orders