Chick v Dockray

In *Chick v Dockray*, the Supreme Court of Western Australia considered a dispute concerning a claim of an easement over land held under the Torrens title system. The central issue revolved around whether an easement purportedly created under the doctrine of lost modern grant constituted an "omitted or misdescribed easement" for the purposes of an exception to indefeasibility of title.

The court was required to determine whether the doctrine of lost modern grant, which presumes the existence of a lost deed to establish a prescriptive easement after a period of use, could operate to create an easement that would be recognised as an omitted or misdescribed easement under the *Transfer of Land Act 1893* (WA). This involved an analysis of the nature of easements created by implication and prescription in the context of the Torrens system's emphasis on the register.

The court reasoned that the doctrine of lost modern grant, while a common law mechanism for establishing prescriptive rights, did not create an easement by implication in the statutory sense contemplated by the exceptions to indefeasibility. Instead, it was a method of proving the existence of an easement that would have been registered had it been properly created. Consequently, an easement established solely through the doctrine of lost modern grant, without prior registration or a basis for implication at the time of the original grant of the dominant and servient tenements, would not fall within the exception for omitted or misdescribed easements. The court held that the claim for an easement under the doctrine of lost modern grant was not an exception to indefeasibility.