Clement v Jones

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.