Braye v Tarnawskyj

The dispute in Braye v Tarnawskyj involved the plaintiff, Braye, who claimed possessory title over an area of land situated between two residential lots. The plaintiff alleged that the claimed land was subject to a right of way benefiting his adjoining property. The defendants, Tarnawskyj, denied the plaintiff’s claim to the area of land. The case was heard in the Supreme Court of Victoria. The plaintiff and his tenants had been using parts of the claimed land for parking, storage, and a garden. Additionally, the plaintiff had undertaken paving works on parts of the land. The court was tasked with determining whether these actions exceeded those authorised by the right of way, and whether they constituted sufficient acts of possession demonstrating an intention to exclude all others from the land. The court had to consider whether the plaintiff's acts were done on a pathway area and whether the plaintiff's use of the land was sufficient to establish possessory title over the claimed land.

The court examined the nature and extent of the plaintiff’s use of the claimed land. It was noted that the plaintiff’s acts, including parking, storage, gardening, and paving, were not limited to the pathway area but extended beyond it. The court held that these acts were not merely incidental to the right of way but were sufficient to demonstrate the plaintiff’s intention to exclude others from the land. The court found that the plaintiff's continuous and exclusive use of the claimed land, particularly the paving works, indicated a clear intention to possess and control the land. Consequently, the court established that the plaintiff had possessory title over part of the claimed land. The court's decision hinged on the intensity and exclusivity of the plaintiff's use of the land, which surpassed what was reasonably necessary for the exercise of the right of way.

The court's reasoning was grounded in the principles of possessory title and the right of way. It concluded that the plaintiff's extensive use of the land, which included activities beyond mere passage, established a possessory title over the part of the land where the plaintiff had exercised such acts. The court found that the defendants’ title to the land was qualified to the extent of the plaintiff's possessory title. The court did not find it necessary to determine the exact boundary of the land over which the plaintiff held possessory title, as it was sufficient to establish that such title existed over part of the claimed land. The court's decision provided clarity on the extent of the plaintiff's possessory title and confirmed the qualified nature of the defendants' title to the land.