Legal Research
Cases
Clement v Jones

Clement v Jones

Case [1909] HCA 11 31 March 1909

Statutory Interpretation

No judgment structure available for this case.

Type to search within this case.

8 CLR 133

CLEMENT AND OTHERS

APPELLANTS; PLAINTIFFS,

JONES AND OTHERS

RESPONDENTS. DEFENDANTS, Real property-Title by adverse possession- - Land of two owners within one fence-

Presumption of possession-Equivocal acts of possession-Intention - Real Property Act 1890 (Vict.) (No. 1136), Part II. - -Transfer of Land Act 1904 MELBOURNE, (Vict.) (No. 1931), 8€CS. 10, 11.

Where two pieces of land belonging to two different owners are enclosed in one ring fence, the presumption is that the possession of each of the pieces remains in the respective owners, and this presumption is not rebutted

8 CLR 134

by the fact that the whole of the land is used by only one of the owners, unless other facts show that the intention of the owner using the land is to exclude the other owner from possession.

A. bought from another person in 1875 a grazing paddock containing about 2,00G acres which was surrounded by one ring fence, but within this fence and not fenced off from the rest of the paddock was a block of 80 acres of which B. was the owner. From the time of the purchase and for more than 15 years afterwards A. used the whole of the paddock for grazing his cattle. During this period B. on several occasions cut firewood on his block and carried it away, and on one occasion B. renewed the survey marks on the boundaries of his block. In an action by A. after the expiration of the 15 years against B. for a declaration under the Transfer of Land Act 1904 (Vict.) that, by possession adverse to or in derogation of the title of

A acquired a title to an estate in fee simple in possession of the 80 acre block

Held, on the evidence, that any exclusive possession by A. of the 80 acre block, and any intention on his part to assert exclusive possession to it, were negatived, and that A. was not entitled to the declaration asked.

Observations as to burden of proof and effect of entry of documentary owner during statutory period.

Decision of the Supreme Court of Victoria (àBeckett J.) (Clement v. Jones, (1908) V.L.R., 704 30 A.L.T., 95) affirmed.

APPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court of Victoria on 10th June 1907 by Jeanie Swanson Clement, Isabella Tait Neill and Frederick Charles Neill against Arthur Cecil Jones, Ella Gertrude Jones, Charles Launcelot Lyon and the Registrar of Titles alleging that, by reason of certain facts set out in the statement of claim and by virtue of the Transfer of Land Act 1904 and Part II. of the Real Property Act 1890, the plaintiffs had, by themselves or their predecessor in title, by possession adverse to or in derogation of the title of the defendants, A. C. Jones and E. G. Jones, or of them and their predecessors, as registered proprietors, acquired a title to an estate in fee simple in possession free from encumbrances in two allotments…

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 Clement v Jones

Details

AGLC: Clement v Jones [1909] HCA 11
Case: [1909] HCA 11
Decision Date: 31 March 1909

CaseChat Overview and Summary

The appellants, Clement and others, brought an action against the respondents, Jones and others, in the Supreme Court of Victoria. The dispute concerned a 80-acre block of land that was enclosed within a larger paddock owned by the appellants' predecessor in title. The appellants claimed to have acquired title to the 80-acre block through adverse possession under the Transfer of Land Act 1904 and the Real Property Act 1890, asserting that their possession had been adverse to or in derogation of the title of the registered proprietors, the respondents. The respondents denied the appellants' possession and counterclaimed for an account of rents and profits.

The High Court was required to determine whether the appellants, or their predecessor, had acquired title to the 80-acre block by adverse possession. This involved considering whether the possession exercised by the appellants' predecessor was exclusive and adverse to the true owners for the statutory period, and whether certain acts by the respondents' predecessors constituted a resumption of possession or an assertion of title that would defeat the claim of adverse possession.

The Court held that the presumption in cases where land of different owners is enclosed within a single fence is that possession remains with the respective owners. This presumption is not rebutted by one owner using the entire enclosed land unless there is clear evidence of an intention to exclude the other owner. The Court found that the acts of the appellants' predecessor, such as grazing cattle over the entire paddock, were equivocal and did not demonstrate an intention to possess the 80-acre block exclusively. Furthermore, the Court considered evidence of the respondents' predecessors cutting firewood from the land, asserting ownership, and seeking to erect a dividing fence, which indicated that the respondents had not been dispossessed and that the appellants' possession was not exclusive. The Court affirmed the decision of the Supreme Court, finding that the appellants had failed to establish exclusive possession for the required statutory period.

The appeal was dismissed with costs.

Orders