Hughes v Dobe
[2012] QLC 47
•7 September 2012
LAND COURT OF QUEENSLAND
CITATION: Hughes v Dobe [2012] QLC 0047 PARTIES: Richard Brian Hughes and Kelva Dyan Hughes
(Applicants)v. William Thomas Gordon Dobe and Lennette Ann Dobe
(Respondents)FILE NO: LAA011-10 DIVISION: Land Court of Queensland PROCEEDINGS: Ministerial Reference – Land Act 1994 DELIVERED ON: 7 September 2012 DELIVERED AT: Cairns HEARD AT: Bowen MEMBER: His Honour, Mr WL Cochrane ORDER: 1. The Boundary between Lot 7 on SB 730 and Lots 5347 on PH1818 and 5348 on PH1819 is a straight line running at a bearing of about 161°. CATCHWORDS: Ministerial Referral – Boundary – Reinstatement – Land Act 1994 – s.435(2) – Principles. CASES REFERRED TO: Alan Wibberley Building Limited v Insley [1999] 2 All ER
Nigger’s Bounce and Oakvale Preferential Pastoral Holdings- O’Mara and Oakvale Preferential Pastoral Holdings (1977) 4 QLCR 164
Donaldson v Hemmant 1901 QLJ 35. National Trustees Etc Company v Hassett & Anor (1907) VLR 404
National Trustees Etc Company v Hassett & Anor (1907) VLR 404
re Boundary of Jarwood Holding (1938-39) 17 CLLR 63.
Disputed Boundary – Forest Grazing Leases, Monto District (1942 – 1943) 19 CLLR 57
Boundary disputes – Jack Creek and Spyglass Holdings – Mount Oweenee and Spyglass Holdings, - North Kennedy District (1964) 31 CLLR 149
re Reedy Springs and Newburgh Preferential Pastoral Holdings, North Kennedy District (1965) 32 CLLR 120
re Ellenvale Preferential Pastoral Holding and Cargoon Pastoral Holding, North Kennedy District (1970) 37 CLLR 98
APPEARANCES: Mr JAC Bell QC appeared for the applicant.
Mr A Preston of counsel appeared for the respondent.
Background
This is the decision in a matter referred to this Court by the Minister under s.435(2) of the Land Act 1994.
Section 435(2) provides:
“435 Minister may refer matters to the court
…
(2)The Minister may refer a dispute about the boundary of a term lease for pastoral purposes to the court for decision, even if the Minister is not a party to the dispute.”
Such a dispute has arisen between the applicant and the respondent. The parties are the holders of pastoral leases granted by the Crown for holdings now known as “Mount Piccaninny” and “Johnnycake North”.
The applicant Richard Brian Hughes and Kelva Dyan Hughes, are the lessee’s of “Johnnycake North” while the respondent’s William Thomas Gordon Dobe and Lennette Ann Dobe are the lessees of “Mount Piccaninny”.
What is contended by the Dobe’s as the common boundary between the properties is partly fenced but according to the applicant “Hughes” the position of the fencing is incorrect.
The Background
By notice which appeared in the Queensland Government Gazette on or about 30 June 1960, the Queensland Government gave notice that it was opening up for Pastoral Lease as Preferential Pastoral Holdings land which was located in the Bowen Land Agents District.
One such property was “De Salis” which was described as having an area of 86 square miles located in the County of Salisbury in the Bowen Land Agents District in the Shire of Bowen.
The affidavit of Lesley Sherwood Todd exhibits, amongst other things, correspondence from the Land Administration Commission (Department of Public Lands – Brisbane) correspondence dated 1 July 1960.
That correspondence relates to the “Desmond”, “De Salis”, “Glenking” and “Castleview” blocks which are described as part of the “Strathmore” (aggregation). The advice notes[1]
“Castleview block is completely surveyed. With regard to the other blocks parts of the boundaries of each have been defined by survey and the survey fee required to be paid is only in respect of the boundaries or parts thereof which have been surveyed. The payment of the specified survey fee will not therefore entitle the successful applicants to have the whole of the boundaries of his block surveyed, if he so desires, without payment of the further costs which might be involved.”
[1] Affidavit of Lesley Sherwood Todd paragraph 7, document 14.
It is that unsurveyed boundary which has led to the present proceedings. It is generally an oblique boundary running from the north-west to the south-east and then due east.
The plan attached to the notification of the ballot clearly shows that the northern and eastern boundaries are surveyed with various cadastral dimensions and measurements shown on the plan. Similarly the extreme western boundary at the northern corner of the ‘De Salis’ block also appears to have been surveyed.
The “De Salis” station has since been subdivided into “De Salis” and “Mount Piccaninny” stations. “De Salis” station adjoined “Glenking” station to the east. That station was leased by John Blomfield. To the west of the “De Salis” property was the property known as “Johnnycake” which has become “Johnnycake North” and “Johnnycake South”.
The original lessee of the “De Salis” property was John Charnock Ferguson.
That property passed to his wife Annie Ferguson as the Administratrix of the Estate of John Ferguson in August 1971 and on 17 February 1972 that property was transferred to Frederick Arthur Watts, Frederick Raymond Watts, Geoffrey Joseph Watts, Bruce William Watts and Clive Ernest Watts as tenants in common in equal shares.
In 1983 the “De Salis” property was subdivided into two portions and became “De Salis” which was the northern portion and “Mount Piccaninny” which was the southern portion. In conjunction with that subdivision plans PH1818 and PH1819 were prepared. It is noteworthy that those plans continue to show the boundary created by the subdivision as consistent with what was in the original lithographs and the boundary does not follow the course of the existing fence line.
In or about 1989 the “Dirrill” Holding to the west of “De Salis” was subdivided into two portions. The “Dirrill” holding in the north and the “Johnnycake North” holding in the south.
In or about June 1996 the respondents Mr and Mrs Dobe purchased both the “De Salis” and the “Mount Piccaninny” holdings from the Watts family.
In or about 2004 the applicants Mr and Mrs Hughes purchased “Johnnycake North” from the Dunn family as part of the “Strathalbyn” aggregation.
The Relevant Law
There is a dearth of reported or unreported decisions relating to the reinstatement of boundaries in Queensland, or indeed, in Australia. The few decisions that are available for review however do provide some guidance as to the nature and the pitfalls of the task required in this case.
An English House of Lords decision from 1999 contains the following observations from Lord Hoffman (Lords Browne-Wilkinson and Lloyd of Berwick concurring):
“Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army. It is therefore important that the law on boundaries should be as clear as possible.
The first resort in the event of a boundary dispute is to look at the deeds. Under the old system of unregistered conveyancing, this means the chain of conveyances and other instruments, going back beyond the period of limitation, which demonstrates that the owner's title is in practical terms secure against adverse claims. These conveyances will each identify the subject matter in a clause known as the parcels which contains the description of the land. Sometimes it is no more than a reference to the land conveyed by an earlier conveyance, which will then have to be consulted. Older conveyances of farm property often describe the property as being the house and land in the occupation of the vendor or his tenant. The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed.[2]
[2] Alan Wibberley Building Limited v. Insley [1999] 2 All ER.
A senior Queensland surveyor Paul McClelland, in a useful paper presented in 2009, observes:
“Reinstatement is about ‘following in the footsteps of those who have gone before’. I think of it as the living history of surveying. A cadastral surveyor effecting a reinstatement who is part-historian, part-archaeologist, part-artisan and part-scientist and the needs and understanding of property law.
Reinstatement is about gathering temporal evidence, analysing the evidence and then making a quasi-judicial decision as to the most likely position of boundaries based on the evidence. It is not an exact science in the science of exact measurement and as a consequence there is almost always likely to be a number of solutions. The art of good cadastral reinstatement is to find an optimal solution with the necessary supporting evidence to justify it if challenged.”[3]
[3] The Reinstatement Process – Paul McClelland, June 2009.
Paul McClelland in his paper refers to a publication by Allan Brown entitled “Law Relating to Land Boundaries and Surveying” which was published by the Association of Consulting Surveyors Queensland in 1980.
Mr Brown’s publication appears to be the only book devoted to the issue of land boundaries and surveying relevant to the Queensland context and is now out of print.
Mr McClelland in his paper makes the following observations:
“Courts determine boundaries based on evidence of fact. How often have we heard that statement in Queensland and considered, because of the lack of litigation here, that surveyors determine boundaries. Certainly, surveyors gather evidence of boundary location and by virtue of their cadastral licence granted by the Surveyors Board, make a quasi-judicial decision in their boundary positioning.
As the legal system operates, all decisions are subject to appeal and so it is with reinstatement decisions. When a boundary is in dispute, then a Court will determine that boundary based on the evidence of facts presented before it.”
In a 1977 case[4] Mr Barry (as he then was) Land Court Member was required to resolve a dispute as to boundaries and as an inevitable part of the process was required to glean the intention of the parties when the boundaries first came into existence.
[4]Nigger’s Bounce and Oakvale Preferential Pastoral Holdings- O’Mara and Oakvale Preferential Pastoral Holdings (1977) 4 QLCR 164.
In the course of that decision Mr Barry wrote:
“Disputes of this nature are not referred to the Land Court frequently and it may be appropriate to note some of the cases which have been referred from time to time. In re the boundary of Jarwood Holding (1938-1939) 17 C.L.L.R. 63 Sir William Payne said ‘I think that points, when definitely fixed by survey, must necessarily be held to dominate a description of the boundaries, in preference to other features more loosely or generally referred to, and that the general direction of the boundary or boundaries from such point, when given in the description, should not lightly be departed from’. In Boundary disputes Jack Creek and Spyglass Holdings – Mount Oweenee and Spyglass Holdings, North Kennedy District (1964) 31 C.L.L.R. 149 Mr Sutherst said: ‘I consider that it is the duty of the Court in its determination to give effect to the original intention of the Governor-in-Council having regard to the areas intended to be comprised in the leases of the respective holdings’.
The relevant section attracted the attention of the Land Appeal Court in re Reedy Springs and Newburgh Preferential Pastoral Holdings, North Kennedy District-boundary dispute (1965) 32 C.L.L.R. 120 which decision is discussed by Mr Dodds in his determination in re Ellenvale Preferential Pastoral Holding and Cargoon Pastoral Holding, North Kennedy District, boundary dispute (1970) 37 C.L.L.R. 98 where at page 100 Mr Dodds said ‘Now, it seems to me that if I am to resolve this dispute I must go back behind the opening lithograph of Ellenvale and see what evidence can be spelled out as to the location of the boundary from its history starting with its inception, and if possible following its history to the time it appears on the opening lithograph relied on by Mr Lee. But here I should emphasises that, following and applying the Land Appeal Court decision in re Reedy Springs, what should prevail if it can be spelled out or ascertained, is the intention of all parties concerned when the boundary first came into existence, unless it can be shown that the agreement on intention then has since been validly rescinded, varied or altered.’”
In the course of that case Mr Barry records that counsel for one of the parties urged that he should have regard to the fact that the construction of a dividing fence along a purported true boundary would be an exercise in futility due to difficulties of access for constructional maintenance or at the very least one of great expense totally unwarranted by the class of country involved and that the Member should adopt as a boundary between the disputing properties a line where a fence could be constructed at far less expense than on the true boundary.
It was contended that both parties would benefit by the Court adopting the less difficult fencing line and that such an approach would be consistent with the requirements of s.41(5) of the Land Court Act which requires this Court to act with equity and good conscience.
In response to those propositions the learned Member made the following observations with which I completely agree.[5]
“The Land Court of Queensland is constituted under the provisions of Division V of Part II of the Land Act 1962-1975 which Acts set out the powers and duties of the Court in the administration of its jurisdiction. The Court is purely a Court of statutory creation and all of its jurisdiction must be so conferred. While section 41 (5) directs that the Court shall be governed in its procedure and in its decisions by equity, good conscience and the substantial merits of the case it should be emphasised that it is only in the exercise of jurisdiction that such principles may enter. This section cannot be regarded as any authority for the Court to assume a jurisdiction not specifically conferred by statute nor in the exercise of its proper jurisdiction can the Court act arbitrarily, or capriciously, or recklessly, unrestrained by any rules at all; and become, as it were, a law unto itself dealing with matters under the Act.
I hold that the Court has no warrant to place itself in the position of the Governor-in-Council as if the leases did not exist and design boundaries which, in the opinion of the Court, might, for a variety of reasons be preferable to the boundaries declared by the Governor-in-Council. I must look to the intentions of all parties concerned when the boundary first came into existence.”
[5]Ibid at page 172.
As will become clear later in this decision it is my view that my task relates to ascertaining the intention of the parties at the time the land was brought into existence i.e. in the early 1960’s rather than the intentions of parties who later came to the land and reached agreement, seemingly, about the installation of some fences.
Many of the cases to which access is available deal with mistakes which have occurred in the description of land which has been sold.[6]
[6]See Donaldson v Hemmant 1901 QLJ 35. National Trustees Etc Company v Hassett & Anor (1907) VLR 404.
In the Donaldson decision the background to the dispute was set out by Griffith CJ in the following terms[7]
“The dispute between these parties arises out of the sale of land by auction on 8th February, 1890. Before the sale by auction the land had been subdivided by a surveyor, and the proposed subdivisions had been marked off on the ground, all the pegs bearing the numbers which it was proposed the allotments should bear. These pegs were put in before the sale, and it is ascertained by the findings of the jury that they are still there, and have always been in the same places. Before the sale the plaintiff went to look at the land. He attended the sale, and bid for several allotments, which were knocked down to him. He had in his hand, as other people had apparently, a lithograph representing the subdivisions. After the sale he says that he went out to the land to look at his purchase. This was on the following Monday. He saw all the pegs on six of the eight allotments that he had bought, and he saw the road pegs on two other allotments that he had bought, and he saw the road pegs on two other allotments – 117 and 118 – which he says had numbers on them showing that they were the boundary between the road of these allotments. On that occasion the surveyor was there with him. He spoke to the surveyor, and produced his lithograph, and pointed out his purchases. He says that he saw the pegs again on that day – I suppose that means on either that day or the day following. He further said, in cross-examination, that he believed that he saw the pegs of allotment 117 before he purchased and that when he inspected the ground on the Monday he saw all the pegs but two, and was content with the land as he had bought it; and, he added, ‘I am willing to take the ground, which I then saw, and as it was pegged out at the time.’ That is the plaintiff’s evidence, and there is nothing in the case to contradict it.”
[7] Page 39.
Griffith CJ referred in his decision to an American text namely the fourth edition of Taylor on Evidence p. 1029 s.1105 which he quoted in his decision in the following terms:[8]
“The object in cases of this kind is to interpret the instrument – that is, to ascertain the intent of the parties. The rule to find the intent is to give most effect to those things usually called for in a grant – that is, the things by which the land granted is described – have been thus marshalled in America: (1) The highest regard is had to natural boundaries. (2) To lines actually run and courses actually marked at the time of the grant. (3) If the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established, and no other departure from the deed is thereby required, marked lines prevailing over those which are not marked. (4) To courses and distances, giving preference to the one or the other according to circumstances. Words necessary to ascertain the premises must be retained, but words not necessary for that purpose may be rejected if inconsistent with the others.”
[8] Page 41.
In the Donaldson decision Chief Justice Griffith was of the view that what the defendant intended to sell was the land marked out by the pegs observed by the plaintiff and that that land marked out by pegs was also what the plaintiff intended to buy. In any event in that case the claim bought by the plaintiff who had been sceptically regarded by the Court was statute barred.
In the National Trustees Etc Company case which was an argument about an incorrect description of parcels or boundaries of land contained within a Certificate of Title. Cusson J observed[9]
“I have, however, no power that I know of to deprive the plaintiff of this piece of land on the ground that its value is only a few pence or a few shillings, and that he would be getting another equally as good.”
[9] National Trustees Etc Company v Hassett & Anor (1907) VLR 404, page 411.
His Honour also observed[10] that:
“It has been pointed out in several cases that land surveying is not an exact science like mathematics; that in the early days surveying was roughly done, and that many of the old Crown grants show erroneous measurements, and are vague and indefinite in the extreme; that, usually in consequence of the use of chains which were too long, the land marked on the ground is in excess of that shown by the grant, and that where there is a discrepancy the actual boundaries of the allotments sold prevail over the measurements and bearings shown in the grant, the map or plan being attended merely as a picture of what is found on the ground. It is further decided that, in the absence of survey marks there can be no better indication of the land to which a grant relates and the long and unchallenged occupation (His Honour then goes on to cite a number of cases) …
The rules established in these cases are embodied to some extent in the ‘Instructions to Surveyors’ and are in no way inconsistent with the view the Crown lands can only be granted as provided by the Lands Acts and the Crown grant is in most cases the basis of the right to the certificate.”
[10] Ibid, page 412.
In re Boundary of Jarwood Holding[11] the Court found that surveyed points must necessarily be held to dominate a description of boundaries in preference to other features more loosely or more generally defined, and the general bearing of a boundary or boundaries from such points when given in the description, should not lightly be departed from.
[11] (1938-39) 17 CLLR 63.
In the determination of Disputed Boundary – Forest Grazing Leases, Monto District[12] Mr Payne President of the Land Court made the following observation which, on reflection, seems apposite to the present case:
“I find that the description of boundaries inserted in the leases is in harmony with the official opening litho. At this stage I think I should say that no fault lies with the work of Survey Office Draftsman who wrote the description. He merely followed the features shown on the official plan.”
[12] (1942 – 1943) 19 CLLR 57.
The President went on to find that the information on the plan itself was an error but no such allegation is raised in the present case. Equally interestingly in that case the description of the land north eastern boundary contained four elements namely a “Spur Range along the eastern half of the boundary”, a “North Westerly Bearing”, a “Direct Line” and a “Distance of about Two Miles”. The “Spur Range” was missing on the ground but there was a “Spur Range” along the western half of the boundary.
The President in that case went on to comment on whether the absence of the “Spur Range” could be ignored and in that regard made the following observations:
“On the other hand, to follow the natural features and to adopt Finlay’s line does violence to three of the elements of the boundary as shown on the official plan and as inserted in the description. Instead of running north westerly it would run west, southerly, and south-westerly. Instead of being a direct line it would be six distinct lines or a boundary with five angles. Instead of being two miles in length it would be about 13/8 miles long. In these circumstances Mr Connolly’s contention must fail.”
In Boundary disputes – Jack Creek and Spyglass Holdings – Mount Oweenee and Spyglass Holdings, - North Kennedy District.[13]Mr Sutherst a Land Court Member found that where a boundary of a pastoral lease, part of which forms the common boundary of that holding and another pastoral lease, was described as commencing from the surveyed point and thence running north-westerly on a compass bearing, it was held that in a dispute between the lessees as to the location of the boundary the survey point should not be disregarded in favour of a line of fencing which did not run along the boundary as described in the Instruments of Lease but was found to run in some distance to the east for part only of the length of the boundary and not in the general direction of such boundary as defined.[14]
[13] (1964) 31 CLLR 149.
[14] Ibid – Headnote.
In coming to that view, the Member observed:
“I do not think that usage of the fence by former lessees, even though for a number of years, must prevail over a description of the boundary in dispute which is tied to a fixed survey point.”
There is necessarily a substantial difference between determining the location of a boundary in circumstances where subsequent to the acquiring of a lease a party or parties go about erecting fencing along a line which they consider to be the boundary and a case where it has been agreed between parties that a particular fence would be taken to mark a boundary for an area of land to be transferred to another party.
The present case is one in which a fence has been erected as a consequence of agreement between two parties but I do not find that compelling evidence that the location of that fence necessarily is indicative of the location of the boundary.[15]
[15]See the observations of the Land Appeal Court in re Reedy Springs and Newburgh Preferential Pastoral Holdings, North Kennedy District (1965) 32 CLLR 120.
In dialogue with Mr Preston I enquired of him in the following terms:
“But is it the intentions of the parties, plural, that is primary, or is it the intention of the government, in demising the Crown land, that is the primary thing I've got to determine?”
Mr Preston responded:
“Well, your Honour, we would say it's the intention of the parties, given that an offer's been made for something that the government advertised as being available, without inspection, unsurveyed, and without the benefit of the parties being able to see, prior to it being put in the lease, the written description.
But if your Honour was against us on that, it's of no great moment. Our position is, one doesn’t construe the subjective intention of a particular individual within the government. The intention, what is meant by the intention, is not a subjective intention, it's the objective intention having regard to all facts and circumstances of the case and of the legislation. (Mr Preston then went on to commend to the Court the logic in the well known 1996 case of Wik dealing with the extinguishment of Native Title).”
Mr Preston continued:
“And we would emphasise that particular point, because moving on from that point, this particular area was unsurveyed. And it's never been surveyed until very recently, in a sense by Mr Hoffmann. And in that context, one can see two or three quite important things, and that is the dotted line which forms the boundary, which yes, is a straight line on the lithograph, does two things. It moves from a point of the boundary of another property 90 degrees to the east and picks up and starts within the Bogie Range.”
It is noteworthy that none of the current owners were the original lessees when the land was released by the State Government.
The approach in the Reedy Springs case (referred to above) was followed and applied by Land Court Member Dodds in re Ellenvale Preferential Pastoral Holding and Cargoon Pastoral Holding, North Kennedy District,[16] the Headnote for which says:
“In resolving a dispute as to the correct position of a common boundary between two holdings what should prevail if it can be spelled out or ascertained is the intention of all parties concerned when the boundary first came into existence, unless it can be shown that the agreement or intention has since been validly rescinded, varied or altered.
[16] (1970) 37 CLLR 98.
In the Ellenvale Preferential Pastoral Holding case Member Dodds observed:
“Now, it seems to me that if I am to resolve this dispute I must go back behind the opening lithographs of Ellenvale and see what evidence can be spelled out as to the location of the boundary from its history starting with its inception, and if possible, following its history to the time it appears on the opening lithograph relied on by Mr Lee. But here I should emphasise that, following and applying the Land Appeal Court decision in re Reedy Springs and Newburgh Preferential Pastoral Holdings – Boundary Dispute (1965) 32 CLLR 120 what should prevail if it can be spelled out or ascertained is the intention of all parties concerned when the boundary first came into existence, unless it can be shown that the agreement or intention then has since been validly rescinded, varied or altered.”
In that case there was some doubt about the accuracy of early mapping. Further, there was reference to a fence which apparently came into existence soon after the lease agreement but no mention was made of a fence in the lease agreements seeking to describe the boundary of the subject property.
Further, in that case the timing of the construction of the fence was crucial to the decision of the Learned Member, the fence having been constructed very soon after the issue of the leases to the two subject properties.
The Member said:
“I have difficulty in seeing how the Crown can dispute that this fence constituted the correct boundary between North Cargoon and Wandovale. I think the Crown by refraining from surveying or traversing the line and having the boundary line properly delineated, leaving to the two parties to the agreement the settlement of the factual boundary, could now be said to have agreed by its conduct at the time that the fence was built by the parties to the agreement immediately following or at the making of that agreement was the correct boundary line. Moreover I am of the opinion that the Crown should not have varied that boundary line, built as a fence to give effect to the agreement, without the consent of the parties to the agreement after reasonable notice had been given.”[17]
[17] Page 104.
The lithograph created for the purpose of the ballot in that case involving the subject land showed a boundary as being a three wire fence right to a river, which fence it was agreed in the course of the hearing did not exist.
In that decision there is no reference to a description of the boundary which is in any way similar to the description in respect of the land the subject of this case to which reference is made later in this decision.
Also in the Ellenvale case what the Crown was doing in granting the lease was really ratifying an agreement which had been made between the two landholders at the time of the surrender of one lease and the creation of other leases. Again that is a distinguishing feature of the Ellenvale Preferential Pastoral Holding case from the present circumstances.
In the present case the disagreement about the location of the boundary came after a fence had been constructed.
The Role of the Crown
In the Reedy Springs case the Full Court observed:
“In the proceedings before the Land Court and again before us, the Crown was represented. In our view, the Crown should be represented in boundary cases for the reasons set out in the judgment relating to the Harvey and Fort William boundary dispute 28 CLLR 425 at page 4 – 6, and should place before the Court all relevant information in its possession, as was done in this case.”[18]
[18] Ibid page 127-128.
I merely observe that in the present case there was no appearance by any party representing the Crown or the relevant department.
Witnesses
Each party called witnesses.
The applicant called Richard Brian Hughes whose earlier statements were admitted into evidence and marked as Exhibits 3, 4 and 8.
Evidence was also called from one Ari Dane McCamley whose evidence was merely speculation about the resolution of another dispute with a different factual scenario.
The expert witness for the applicant was Anthony Joseph Hoffman a Surveyor whose reports became Exhibits 5 and 7.
The applicant also tendered two letters from one Russell Priebbenow a Director of Surveys for the Lands Department.
The respondent called evidence from Geoffrey Joseph Watts whose statement became Exhibit 10.
Mr Watts evidence was to the effect that he inspected the property prior to his family purchasing from the Ferguson Estate in 1971 and were informed and accepted that the boundary fencing which existed at the time of purchase was the recognised boundary of the property.
Mr Watts[19] deposes in his affidavit in the following terms.
“During the time of ownership by our family, we never shifted any boundary fencing, only internal fencing. The mountain between our grazing property in Strathalbyn was never fenced as the terrain was too difficult and cattle could not wander between the two properties over the range. The boundary was fenced to the bottoms of the mountain at each end and there was about four (4) kilometres unfenced over the range between the two fenced lines.”
[19] Exhibit 10 paragraph. 6.
Mr Watts also deposes that:
“In my dealings with the Lands Department, it was accepted for the purpose of the subdivision that the existing fence lines on the western boundary of the property at the bottom of the range was the correct boundary for the subdivision of ‘De Salis’.”
Unfortunately I do not regard the assumptions made by landowners who acquired the land long after it had been leased in 1961 as evidence of any intention of either the lessees or the leasing government at the time the properties were created.
Evidence was also called from one James McLeod Kingdon Blomfield and from Lennette Ann Dobe and from her husband William Thomas Gordon Dobe whose statement became Exhibit 13.
Mr Dobe, like Mr Watts was only able to say that he observed the boundary fencing both on an inspection and assumed the fencing to be boundary fencing.
The evidence of Mr Blomfield[20] was really only useful with respect to his involvement in the identification of survey pegs along the eastern and southern boundaries of “De Salis”.
[20] Exhibit 11.
He frankly acknowledges that with respect to the fenced section of what is alleged to be the western boundary the highest that he could put it was that Ferguson and Cunningham (the then adjoining owners) had identified the boundary by looking at survey pegs.
That cannot have been the case there being no evidence of any survey pegs along that boundary line.
Indeed, so much seems to be confirmed by the correspondence from Mr Cunningham to Mr Ferguson of 2 March 1961 where he speaks of his having pegged a line for a few hundred yards heading directly to Wallaby Mountain. He observed that the peak was in full view of those pegged lines and the contractors “cannot go wrong”. There is no evidence at all that line was in any way surveyed.
The respondent, like the applicant called expert evidence from a surveyor, Mr Leslie Sherwood Todd of WS Surveys, whose reports became Exhibits 14 and 15.
For the purpose of this hearing I should note that I had the benefit prior to the hearing beginning of an extensive inspection of the site both by four wheel drive vehicle and by helicopter.
In the course of that inspection I was provided with a plan which enabled me to identify a number of points, the constructed fence and the land form prevalent in the disputed area.
The various points identified on the inspection included the south most point of the disputed boundary (characterised by a decayed strainer post) a tower at the top of a peak and the length of a stock fence.
At the beginning of the hearing a plan was tendered by Mr Bell of Queens Counsel which became Exhibit 1 and which identified a number of points relevant to the inspection.
On that exhibit Mr Bell’s side, the Hughes’, contend for a straight line boundary.
Mr Preston of counsel appeared for the respondent and it is a convenient way to describe his parties contentions to say that they contend for a dotted straight red line to the west of an unbroken straight line (which is consistent with the boundary line shown on the ballot documents) on Exhibit 1 running north west from the south west corner of the property up towards the Bogie Range at which time they then contend for a boundary line which extends in a serpentine way up to a point towards the north of the subject site where it then, following the peak of the range, extends to the east back in to the property as shown on the ballot document and then continues north finally, in a mostly serpentine fashion, heading west again encompassing land not demonstrably included on the original ballot document.
The land to the west of the ballot straight line but encompassed by the dotted line and the unbroken red line marking the ridge tops of the Bogie Range encompasses an area of 1,319.2 hectares.
There is then an area lying to the east of the ballot straight line and bounded by the ridge of the Bogie Range which comprises an area of 117.57 hectares lying within the ballot area and then another 11.7 hectares to the east of the ballot area and another area of 200.9 hectares west of the straight line boundary again bounded by the ridge of Bogie Range. The net result of that is that there is an area of 1,520.1 hectares lying to the west of what might be described as the ballot line boundary and an area of 128.64 hectares lying to the east of the straight line boundary and bounded by the ridge of the Bogie Range.
It is convenient to include a copy of Exhibit 1 in these reasons for judgment so that should this decision go to another place Members of any Court above can be fully informed as to the contentions of the two parties.
Exhibit 1 will become Appendix A to these reasons.[21]
[21] T. 1-6-7.
The original lease[22] contains the original description of the lease area in the following terms:
“Commencing on the left bank of the Bogie River at the north east corner of Portion 3V Parish of Dirrill, and bounded then by that portion south to its south east corner, by lines about 90° one mile and 162° 12½ miles, by ‘Johnnycake Holdings’ about 100° 2¾ miles by Glenking Holdings about 360° 4 miles and about 90° 2 miles to the south east corner of Portion 2 Parish of Strathbogie, by a road northerly to the south east corner of Portion 381, by that portion, a line and R27 Camping and Water Reserve west, by R27 north to the left bank of the Bogie River, by that bank downwards to Oaky Creek, by the right bank of that creek upwards to a point south east from the south east corner of Portion 382, by a line west to, by that portion west, north and east again to the left bank of the Bogie River; and thence by that bank downwards to the point of commencement.”
[22]Affidavit of Todd Exhibit WS documents 16 dated 30 March 1961 (incorrectly identified as 31 January 1961).
The exhibited copy of the lease has an annotation suggesting that that description was amended on 26 March 1979. The plan which shows an area of 190 square kilometres for the “De Salis” holding appears to have been drawn on 31 January 1979 and accordingly post dates the actual lease.
The reason for that inconsistency was not ventilated before me but the important aspect of the new drawing of 31 January 1979, to my mind, is that it retains the straight line passing through the Bogie Range.
In any event, my understanding of what the authorities suggest ought be the approach adopted by me is to identify the boundaries and the intentions that the relevant had at the time the land was made subject to a lease in 1960 and 1961.
What happened between parties subsequent to that time in circumstances where the pictorial depiction of the boundary on plans remained unchanged seems to me to be irrelevant to the exercise which I must carry out.
There are a number of other amendments which reflect a change from Imperial measurements (miles etc) to Metric measurements (kilometres etc). For example the portion of the boundary described as by lines of about 90° 1 mile is now amended to about 270° and about 1.6 kilometres.
Similarly the area of the land has been changed from a descriptor of 76 square miles to 190 square kilometres.
That figure appears to reflect a conversion rate of 2.5 square kilometres per square mile when in fact the precise conversion rate ought be 2.589988. The corrected figure relying upon the initial indicia of a 76 square mile property would seem to be 199.43 square kilometres.
Document 16 to the affidavit of Todd is a lease of the subject land
The task here is, at the outset, is to try to identify those factual matters which will assist me in the determination of the location of the location of the relevant boundary.
Some of the documentation annexured to the Todd affidavit is correspondence between adjoining landholders who seemed to have had the capacity to agree about the construction of a fence. I do not, however, regard their understanding of the appropriate location of the fence to be compelling evidence as to the actual location of the boundary.
See for example WS Document 18 annexured to the Todd affidavit.
Similarly, a report on performance of development conditions on holdings under the Land Acts and the Prickly-pear Land Acts dated 23 October 1961 contains an observation that:
“Fencing – the holding is not as yet enclosed with a stock proof fence. About 21 miles of boundary and 5½ miles of internal fencing has been effected since 1/1/61.”
There is no compelling evidence accompanying that document that suggests the author has satisfied him or her self that the boundary fence in fact coincided with the boundary.
That report was prepared by a Land Ranger.
It was accompanied by a sketch plan which seems to mimic the plan of layout shown in the original ballot documents with the south east boundary in an oblique straight line.
The fact that a fence has been constructed along what parties, without the benefit of survey advice, may have believed to be the boundary is not, in my view, compelling evidence that they actually identified the real boundary.
Indeed, the reservations expressed by me above are reflected in the Memorandum of Agreement of May 1971 between the widow of John Charnock Ferguson (deceased) and Members of the Watts Family whereby she sold her interest in the “De Salis” property the Memorandum of Agreement reflecting the following:
“14. The Vendor Warrants as Follows:
(a)That she believes that the boundary fences or fences which are used as boundary fences are erected on the boundaries of the said lands and that she owns a half interest in all such fences as are erected on the true boundaries but she sells only such interest as she may have (where the more or less than a half interest) in any fences which may not be erected on the true boundaries.”
With respect to the report of the Land Ranger (WS 19) dated 23 October 1961 I accept the observation contained in Exhibit 9B being correspondence from the Department of Environment and Resource Management over the signature of Russell Priebbenow the Director of Surveys dated 4 August 2009 where he observes:
“The Land Ranger reports that the fence subject to this dispute was erected in 1961 as part of the fencing of ‘De Salis’, apparently without the benefit of any survey to locate the boundary prior to fencing. It is probable that the Land Ranger was more concerned with the existence of a fence that prevented the passage of stock than with its precise location in relation to the actual boundary of the lease.”
There is no evidence to suggest that the Land Ranger was deployed to do anything other than to check the state of extant fencing which may have been constructed in accordance with the terms of the lease. There was no evidence before me that included in the functions of a Land Ranger would check the accuracies that the boundaries along the fences had been constructed.
The Director of Surveys goes on to observe:
“De Salis was subdivided in 1983 without survey, with the disputed boundary located in the subdivided holding, Mt Piccaninny. Mt Piccaninny in now described as Lot 5348 on plan PH1819.
Additional land was added to Dirrill in 1989 to create Johnnycake North Holding described as Lot 7 on SB730.
Neither PH1819 prepared in September 1982 nor SB730 prepared in September 1987 departed from the location of the boundary as originally described. The common boundary is as shown on the cadastral map, consistent with the location of the fencing. While previous lessees may have accepted the position of the fence as the common boundary, no agreement is in place to confirm this. The fence departs significantly from the line described in the metes and bounds description and no attempt been made to formalise the fence as the boundary by adjusting either lease.
The current lessees acquired Mt Piccaninny in 1996 and the current lessees of Johnnycake North purchased in 2004.
In looking to determine the location of the disputed boundary, an interpretation is necessary of the original intention at the time the boundary was created. The only evidence of that is the metes and bounds description, and the source material from which that was derived (i.e. the cadastral map). Looking at the evidence, the department is of the view that the argument is stronger for the straight line than it is for a boundary that, in part, follows the range and in part, follows a fence line erected without the benefit of survey.”
The information and the departmental letter regarding subdivision is confirmed by the affidavit of Jeffrey Joseph Watts who deposes in similar terms to the matter set out in the department’s letter. In particular he asserts, and I accept, that at the time of the purchase of the “De Salis” property from the Ferguson Estate in 1971 Mr Watts and his family merely accepted that the boundary fencing which existed at that time represented the recognised boundaries of the property including that between themselves and Strathalbyn.[23]
[23] Exhibit 10, paragraph 5 and 6.
The background to the construction of the fence was somewhat elaborated upon in the affidavit of James McLeod Kingdon Blomfield[24]
[24] Exhibit 11.
Mr Blomfield sets out the procedure which they adopted.
In the course of his explanation he makes reference to Mr Ted Cunningham being a person who knew where “some survey pegs were located”.[25]
[25] Exhibit 11 paragraph 4.
There is exhibited to Mr Blomfield’s affidavit an Exhibit JMKB1 which identifies a number of points A-G on a plan which was dated 27 September 1982 and thus post-dated the ballot of August 1960. That plan shows more surveyed points than the original ballot plan and in particular identifies the southern boundary as being “about 276° ’90 minutes.
Mrs Dobe swore an affidavit[26] in which she deposes having been advised by the Department of Natural Resources in Mackay that:
“Since the fencing had been there for so long (believed to be over 40 years) the fence was the boundary of the property.”
[26] Exhibit 12.
I know of no basis upon which the mere assertion from the departmental officer that because a fence had been in position for a considerable period of time that had the consequence of delineating the boundary.
Accordingly I give those assertions by Mrs Dobe no weight at all.
Similarly Mr Dobe deposes that at the date of inspection by him prior to the purchase of the properties he was of the view that the fencing constituted the boundary. Again such an assumption is of no real weight in the context of the determination which I am called upon to make.
The current State Tenure searches[27] show for each of lots 5347 and 5348 on Crown Plan PA1818 County of Salisbury Parish of De Salis in the Whitsunday Local Government area that the plans on the official register drawn on 27 September 1982 show the boundary to be a straight line. Similarly the current State Tenure search for Lot 7 on Crown Plan SB730 County of Salisbury Parish of De Salis in the Local Government area for Whitsunday again adopts the previous plans showing the (eastern) boundary of that lot to be a straight line.
[27] Exhibits 16 and 17.
The Evidence of the Surveyors
Each of Mr Hoffman and Mr Todd was called for the subject of cross-examination upon the material contained within their reports.
Not unusually two highly qualified and experienced expert witnesses possessed of different mindsets came to entirely contrary views as to how the boundary was to be determined. Unhappily my ultimate task will be to prefer the approach of one of those surveyors over the other.
To the extent that I am bound to do that it is unfortunate because I formed the compelling view that both of them gave evidence consistent with honestly and strongly held opinions premised upon extensive experience. It was unfortunate that they were unable to reach a point of agreement.
I am bound to observe that clearly in such a difficult exercise there is merit in both of the views expressed by them.
Each of them conducted himself professionally, was aware of the obligations of an expert witness and had no personal interest in the outcome of the dispute other than an inclination to strongly support the opinions which they eloquently expressed.
Sensibly there had been some cooperative agreement between the parties and on 7 December 2010 Mr Hoffman and Mr Todd met and agreed upon the methodology to prepare a joint identification survey.
I was provided with detailed submissions and evidence were given about a document entitled Rules and Directions for the Guidance of Surveyors Effecting Surveys Under the Land Acts 1962 to 1963.[28] That document was apparently published by the Government printer in 1964.
[28] Exhibit 20.
Within the Hoffman report there is an observation that the location of the fence and the fact that Bogie Range is acting as a natural barrier restricts the use of the disputed land by Strathalbyn. This area was calculated by Mr Hoffman to be approximately 1,173 hectares or 2,900 acres.
It may be that the identification of the actual boundaries between the properties results in one property or the other having some difficulty of access to parts of the land contained within its boundaries.
In my view that is not an unusual circumstance on very large holdings and there was nothing in the evidence adduced before me which would lead me to the view that the Lands Department in identifying areas for development went out of their way to make sure that all areas of parcels of land made available for lease were easily accessible to the lease holder. For example it is not an uncommon circumstance that in very large holdings the presence of rivers and creeks makes access across a property difficult and in some circumstances impossible.
Brown in Law Relating to Land Boundaries and Surveying,[29] speaking of the Rules Interpretation of Deeds and the Notion of “Control” speaks of “Control by Intention” and “Control by Maps and Plans”.
[29]AG Brown, Law relating to Land Boundaries and Surveying, Association of Consulting Surveyors Queensland 1980 (at page 151).
With respect to “Control of Intention” he observes as follows:[30]
“The cardinal rule for the interpretation of deeds is to discover the expressed intention of the parties, gathered from all parts of the instrument, giving each words due force ran the light of existing conditions and circumstances at the time of conveyance. It is the intention definitely expressed in the instrument that controls, not intention merely surmised. This cardinal rule controls all others. A construction which is consistent with all of the terms of the description should be given, rather than one consistent with some of the terms.
How is the intention to be ascertained?
‘The only rule of much value – one which is frequently shadowed forth but seldom, if ever expressly stated in books – is to place ourselves as nearly as possible in the seats which were occupied by the parties at the time the instrument was executed; then, taking it by the four corners, read it. (Quoting Skelton)[31]
In other words, try to establish what the other parties meant to accomplish, and decide that question in the light of what was actually done by them.”
[30] Ibid (page 150).
[31]“The Legal Elements of Boundaries and Adjacent Properties” Bobbs Merrill Company Indianapolis 1930 and CM Brown, with F.H Landgraf (a lawyer): “Boundary Control and Legal Principle”, John Wylie & Sons Incorporated, New York 1957.
And further with respect to Control by Maps and Plans AG Brown observes as follows:
“Where a map or plan of a tract of land, with lines drawn on it marking its boundaries, and with the natural objects on its surface lay it down, is referred to in a Deed as containing a description of the premises therein conveyed, this map or plan is to be regarded as a true description of the land conveyed as much as if it were expressly recited and marked down in the Deed itself, and ‘where there is a description of courses and distances and one by reference to known monuments, the latter prevails; and a map or plan referred to (certainly if it be a public record) stands upon the same footing as a monument, and is of even higher authority’, but the courses and distances as indicated on the plan do not enjoy this prestige. Furthermore, where parties take possession by Deeds according to the measurements stated in a public plan of a City Addition, their rights are governed by the Rule that the lines of the Plan, as actually located on the ground, control over monuments and other surveys.”
And still later with respect to “Control by Adjoiners” Brown says as follows:
“Monuments, where the fences or otherwise, built up the survey or conveyance will control other calls if the evidence is that they were erected in accordance with the intention of the parties, whether the intentions were evidenced by an authorised survey or not.
If the fence is inexistence as a boundary of an adjoining sub-division, then it will carry very grade evidentiary weight, as descriptions by abuttal’s are everywhere regarded as the best evidence of the intention of the parties.”
Great care has to be taken applying the proposition in the preceding quote from Brown’s text.
In my view where Brown speaks of “the parties” he is not speaking of the intention of parties who become successors in title of adjoining lands who agree between themselves as to where they might erect a fence. On the contrary, in my view, Brown is referring to the parties’ intentions at the time the tract or parcel of land was created and in this case that would be the Lands Administration Authority or its equivalent and the initial lessee of the land.
In tendering the document entitled Rules and Directions with a Guidance of Surveyors published by the Survey Officer for the Department of Lands and approved by the secretary of Public Lands in 1916,[32] Mr Preston for the respondents drew the Courts attention to the guidelines for effecting surveys.
[32] Exhibit 19.
That document appeared to have been published in 1916 but a version was published again in Government Gazette Number 62 of 31 March 1964 and a second edition or version of that document relating to the Lands Act 1963 became Exhibit 20.
In the course of his opening Mr Preston drew the Courts attention to the decision of the Queensland case of Donaldson v Hemmant (1901) 11 QLJ 35 as supporting the proposition that the role of the Court in the present case was to interpret the instrument and to give effect to the instrument according to the intention of the parties.
Mr Preston pointed out that the then Chief Justice relied for his decision upon a number of American cases.
That case however differs, in my mind, substantially from the present case.
To make his point Mr Preston in his short preliminary opening submitted as follows:[33]
“MR PRESTON: And essentially, one interprets the instrument to give effect to the intention of the parties, and there are a number of basically relevant aspects to that, which we say would bear on the mind of the Court in this case.
The first and possibly foremost, is that one must have due regard to natural boundaries and features, and indeed, in the bundle of cases that my learned friend has kindly supplied, it becomes apparent from those cases that absent survey points, then are, for she or I, natural features, are a primary influence. One can also have regard to such things as unchallenged and uncontentious occupation, and the conduct of the Crown and the Lands Administration Commission and the Land Rangers, in not disturbing the place where the boundary fence was erected as a boundary.
Essentially, we agree that the lease description of the area demised was in terms of metes and bounds. We simply will be submitting, based on evidence that you will hear, that a literal application of the metes and bounds as they were then written, on an imaginary unsurveyed plain, does not accord with the intention of the parties, or if one wants to look at it narrowly, the governor in council, whose intention must be assessed objectively.”
[33] T. 1-41 L. 1-20.
As will become apparent in these reasons the only qualification I would place upon the propositions advanced by Mr Preston for the respondent are that the intentions of the parties are to be gleaned from their conduct prior to the formation of identification of the piece of land in question rather than by some behaviours exhibited, in some cases, many years after the land has been demised by way of lease or freeholding title to a property owner.
On Mr Preston’s case as opened by him what was intended in an unsurveyed area was to issue a lease which used the “Bogie Range” as a natural barrier.
The question then arises as to what are the “facts” which are properly proven before me as to events at the time the boundaries first came into existence. It is from those facts to which I must have resort in determining where the true boundary lies.[34]
[34]See Nigger’s Bounce and Oakvale Preferential Pastoral Holdings, Reedy Springs and Newburgh Preferential Pastoral Holdings and the observations of Griffith CJ in the Donaldson decision op cit.
The objective facts established by all of the material before me are really quite short.
There is quite a lot of evidence of speculation about intentions and agreements and a heavy reliance by both sides upon inferences to be drawn from events which occurred subsequent to the original creation of the boundary.
A starting point for the established factual matters is the original litho calling for applications to take up the holdings.
It is beyond dispute that that lithograph shows the boundary as a straight line it does not show all of the boundaries as straight lines some of them clearly have the benefit of having been surveyed.
What then flows from that? One consequence is that somebody in the relevant government department was called upon to provide a descriptor of the boundaries for the purpose of the lease of 30 March 1961.
On any reading of the description on that lease[35] it is beyond doubt that the description involves straight lines running through and across the “Bogie Range”.
[35] Exhibit WS Document 16 to the affidavit of Todd.
It contains a metes and bounds description identifying by degrees and distances the location of the boundary.
Mr Hoffman in his statement[36] asserts:
“… There can be little doubt that the Governor-in-Council prescribed the disputed boundary to be:-
(a) a straight line.
(b) a line running from the south at about 162° and
(c) a line running for about 12½ miles.”
[36] Exhibit 7 paragraph 58.
It is also a matter of undeniable fact that subsequent plans prepared to facilitate various subdivisions of the various properties retained the straight line as the western boundary of the holding.
For example (and Mr Hoffman sees upon this in aid of his argument) the amendment to incorporate plan PH1526 prescribe the western boundary to be (a) a straight line, (b) a line running from the south at about 340° (the equivalent of about 160° from the north, (c) a line running for about 20 kilometres (the equivalent of 12½ miles) and a line which is not referenced by the existence of any fence line.[37]
[37] See Exhibit 7 paragraph 63.
The observations with respect to the “De Salis” holding and its western boundary are entirely consistent with what happened to the “Dirrill Pastoral Holdings” eastern boundary. The “Dirrill Pastoral” holding was delineated very nearly a year after the “De Salis” holdings.[38]
[38] Exhibit 7 paragraph 69.
Mr Hoffman also points to events which occurred at the time of the subdivision of the “De Salis” holding in 1981 which involved the retention of the straight line eastern boundary.
Mr Todd in his report which became Exhibit 14[39] set out seven points that he found in his expert opinion were critical to the determination which has to be made by me. Those points were:
[39] Exhibit 14, page 10.
“1.We have presented un-contested evidence showing that the existing boundary fence was first erected in 1961 by the original lessees soon after the boundary was created.
2.We have detailed the methodology adopted by Government officers to define lease boundaries, and the inherent inaccuracies therein when compared with modern technologies.
3.We have established beyond reasonable doubt, that the original and successive owners believed the fence and the Bogie Range represents a logical and practical boundary between the properties i.e. ‘Fence the eastern boundary of the holding, exclusive of natural barriers sufficient to prevent the passage of stock with a stock-proof fence,’ - and that the Government, in imposing this condition 50 years ago, intended this to be so.
4.We have established that on two occasions in 1982 and .1987, (plans PH 1818, PH 1819 and SB 730) notwithstanding the availability of aerial photos defining the range, show contradictory information. The Government had two opportunities to correct what is now seen to be an error and chose not to do so.
5.The plaintiffs acknowledge that they had ample opportunity to question the boundary position and chose not to prior to purchase.
6.We have demonstrated that the current officers within DERM do not have a good grasp of methodologies used and the basic principles adopted in these cases over many years. The paper presented by Mr McClelland and referenced in the preamble of this report, seems to contradict the Department's advice regarding this case.
7.A search of the State's cadastral records will reveal that there are hundreds, possibly thousands of kilometres of unsurveyed fenced boundaries. An examination of the relatively small areas covered in the locality map attached in Hoffmann's report and our WS Doc 10 will provide an insight into the extent of this phenomenon. If only a small percentage of these have parallels to this case, and the Court decides in favour of the plaintiffs, then surveyors and the Courts will be kept busy for many years to come.”
There are a number of observations which could be made about the points raised by Mr Todd. It is true to say that the existing “boundary” fence was erected soon after the boundary was created but it is equally correct to say that there is no evidence to suggest that that “boundary” fence was dependent in any remote way upon any sort of a survey.
It is also accepted that sometimes there are inherent inaccuracies in the manner in which government officers in the past have defined lease boundaries. However, in the present case, in my view, there was absolutely nothing to stop the relevant government officers from describing the boundary by having regard to either “the ridgeline of the Bogie Range” or, for example, the “Foothills” or the “Elevated Sections” of the “Bogie Range”. They did not do this.
It is also established to my satisfaction that successive owners believed that the existing fence may have been the boundary. In my view, they are incorrect in that assumption and it was entirely without foundation.
True it is also that the “Bogie Range” inevitably represents a practical and effective boundary between the properties but there is, on the other hand, no evidence to my satisfaction that the government intended in creating the properties that the ridgeline of the “Bogie Range” should be the barrier.
Indeed, portraying the boundary as a “straight line” when the outcome of adopting the ridgeline of the “Bogie Range” would be to create a serpentine boundary quite inconsistent with the “indicative” straight line strikes me as being glaringly incongruent.
As to his fourth point I do not accept that on the occasions in 1982 and 1987 when plans PH1818 and PH1919 and SB730 were under consideration that the government was confronted by any inclination or urging to correct what Mr Todd now describes as “an error”.
It seems to me that it is manifestly unfair to assert that Mr Todd by his work has demonstrated that current officers within the Department of Environment and Resource Management do not have a good grasp of methodologies and the basic principles adopted in these cases over many years.
There is no evidence that Mr McClelland was speaking on behalf of the department and as a professional and expert surveyor I do not regard him as, in any way, bound to adopt a “departmental” line in any professional papers he may deliver to other surveyors. It is the hallmark of a professional and an expert to express without fear or favour that experts own professional opinion. I do not see that the paper by Mr McClelland, with which I have been provided a copy, is anything other than an expression of his professional opinion.
To the extent that it might be asserted that it contradicts the department’s advice in this case may be, in my opinion, regarded as a reflection of the fact that each particular case depends upon its own particular facts and circumstances and, as I have attempted to demonstrate above one has to have regard, in particular, only to those factual matters which are clearly established.
I have tried to make it clear that I do not accept that there is any indicia of an evidentiary sort which suggests that it was intended that the boundary should be serpentine and follow, generally, the ridgeline of “Bogie Range”.
In any event the fenced portion of the existing “boundary” could with a little surveying assistance have been constructed on the appropriate line but it was not.
The fact that there are hundreds if not thousands of kilometres of unsurveyed fenced boundaries which might be a fruitful source of future dispute and litigation is not any warrant for producing a judgment which might, to use the words of Mr Todd, have the effect that “the Court’s will be kept busy for many years to come.”
The Court’s have a statutory jurisdiction, parties have a statutorily granted right to challenge boundaries and one ought not be seen to make a decision which is aimed at avoiding a situation where the Court may be called upon in other cases to make decisions. In part that is why this Court exists.
For the reasons set out above I prefer the approach and opinions expressed by Mr Hoffman.
I find, accordingly, that the boundary of the properties in dispute is that contended for by Mr Hoffman and marked in its original position in the original lithographic plans which accompanied the invitation to persons to apply to take up occupancy of the “De Salis” holdings and described by metes and bounds in the original lease.
Order:
1.The Boundary between Lot 7 on SB 730 and Lots 5347 on PH1818 and 5348 on PH1819 is a straight line running at a bearing of about 161°.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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