Fernance v Simpson

The case of Fernance v Simpson was heard by the Supreme Court of Victoria and concerns the existence of an easement by prescription over a property. The dispute arose when the plaintiff, Fernance, sought to enforce an alleged easement over land owned by the defendant, Simpson. The easement was claimed to have been established through 20 years of uninterrupted use, with the ownership of the dominant tenement tracing back to an estate of a person who died in 1885. The legal issues in the case focused on whether the easement could be established by prescription, the capacity of the original owner to grant an easement, the requirement of knowledge of the use for the easement to be effective, and the sufficiency of constructive knowledge.

The court examined whether the easement could be established despite the lack of a formal grant. It noted that an easement by prescription requires a continuous and apparent use for a statutory period, and the use must be over land that is part of a separate estate. The court held that the 20 years of uninterrupted use by the plaintiff over the defendant's land satisfied these requirements. Furthermore, the court considered the capacity of the original owner to grant an easement. It concluded that the owner, who died in 1885, had the capacity to grant an easement, and the subsequent use by the plaintiff's predecessors in title fulfilled the necessary conditions for prescription. Regarding the requirement of knowledge, the court found that while actual knowledge of the use by the owner of the servient tenement is typically required, constructive knowledge could suffice if the use was apparent and obvious. The plaintiff demonstrated that the use was such that the defendant's predecessors in title should have known about it, satisfying this requirement.

The Supreme Court of Victoria determined that the plaintiff had successfully established an easement by prescription over the defendant's land. The court held that the uninterrupted use for 20 years, coupled with the apparent nature of the use, met the criteria for a prescriptive easement. Additionally, the court ruled that constructive knowledge of the use was sufficient to satisfy the requirement of knowledge. The defendant's argument that the original owner lacked the capacity to grant an easement was rejected, as the court found that the owner had the requisite capacity. The final orders of the court recognised the easement by prescription and directed the defendant to cease any interference with the plaintiff's use of the easement.