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Howlin v Brinckman

Howlin v Brinckman

Case [2007] TASSC 59 14 August 2007

Adverse Possession

Easements & Covenants

Property Law

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[2007] TASSC 59

CITATION: Howlin v Brinckman [2007] TASSC 59

PARTIES:  HOWLIN, Darryl Robert
  HOWLIN, Helen Lorraine
  v
  BRINCKMAN, Margaret Helen

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  523/2005
DELIVERED ON:  14 August 2007
DELIVERED AT:  Hobart
HEARING DATE:  26, 27, 28 and 29 March 2007
JUDGMENT OF:  Slicer J

CATCHWORDS:

Highways – Creation and extinction of highways – Dedication – What constitutes dedication – In general – Common law principles – Intention to dedicate – Presumption from user – Whether intention may be inferred contrary to actual intention – Necessity for acceptance of offer to dedicate by public use – Whether sufficient evidence.

Towns Act 1934 (Tas), ss48F, 48B, 48C, 48D and 48E.
Wheeldon v Burrows (1878) 12 Ch D 31; Aldridge v Wright [929] 2 QB 117; McGrath v Campbell [2006] NSWCA 180, considered.
Templestowe Developments Pty Ltd v City of Boroondara [1997] 1 VR 504, followed.
Parramore v Duggan (1995) 183 CLR 633, not followed.
Aust Dig Higways [13]

REPRESENTATION:

Counsel:
             Plaintiffs:  S P Estcourt QC
             Defendant:  G L Sealy and T Graham
Solicitors:
             Plaintiffs:  Page Seager
             Defendant:  Simmons Wolfhagen

Judgment Number: [2007] TASSC 59
Number of paragraphs: 60

Serial No 59/2007
File No 523/2005

DARRYL ROBERT HOWLIN and HELEN LORRAINE HOWLIN
v MARGARET HELEN BRINCKMAN

REASONS FOR JUDGMENT SLICER J

14 August 2007

The plaintiffs are the registered proprietors of land at Spitfarm Road, Opossum Bay, and in August 2003 became the registered proprietors of further land described in the statement of claim as the "Howlin portion of Marsh Street". The defendant is the registered proprietor of land which adjoins both the "Spitfarm Road" and "Howlin portion" and has as its access to the main north/south road for Opossum Bay, South Arm Road over the Howlin portion.

The defendant's land can be described as the "Brinckman" portion of Marsh Street and together the two portions can be described as and comprise the whole of the land known as Marsh Street.

Four plans are annexed to these reasons for judgment which assist in the identification of the respective lands and titles and the issues raised in these proceedings. The first plan annexed is a survey plan dated 23 February 1945 which shows a "proposed roadway" encompassing Marsh Street, referred to above, and the "blocking" lot 6 adjacent to the public road and on the eastern side of the plan. The second plan shows the defendant's land as 5,354m²on the southern side of the plan and the "Brinckman" portion marked as roadway. The plaintiffs' land adjoins the eastern side of the plan and access is provided, irrespective of whether the disputed area is subject to a right of way or is a public roadway, over the section marked "D" and "C" on the plan. The respective lots, 1 to 5, and 6 to 9, shown on the northern and southern sides of the "roadway", possess rights of way over the "roadway" and lot 6 (shown on the western…

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 Howlin v Brinckman

Details

AGLC: Howlin v Brinckman [2007] TASSC 59
Case: [2007] TASSC 59
Decision Date: 14 August 2007

CaseChat Overview and Summary

Howlin v Brinckman was a case in which the court considered the creation and extinction of highways, focusing on the principle of dedication. The plaintiff, Howlin, alleged that a road running through his property was a public highway, while the defendant, Brinckman, argued that the road was private and not subject to public use. The matter was heard in the Supreme Court of South Australia.

The central legal issue was whether the road in question had been dedicated as a public highway. Specifically, the court needed to determine if the necessary intention to dedicate the land to public use had been established and if the dedication had been accepted by public use. The court considered whether the presumption of dedication from public use could be applied despite the owner's actual intention and whether there was sufficient evidence of public use to support the dedication.

The court examined the evidence of public use and found it insufficient to support a presumption of dedication contrary to the owner's actual intention. The court held that for a dedication to be valid, there must be clear evidence of an intention to dedicate the land to public use and acceptance of that dedication through public use. The court concluded that the evidence presented did not demonstrate the necessary public use to establish the road as a public highway. Consequently, the road remained private, and the defendant's ownership was upheld.

As a result of the court's decision, the plaintiff's claim for the road to be recognised as a public highway was dismissed. The road remained in the ownership of the defendant, Brinckman, without any public rights of way.

Orders