Krolczyk v Raffan

[1991] TASSC 78

Serial No 62/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Krolczyk v Raffan [1991] TASSC 78; A62/1991

PARTIES:  KROLCZYK
  v
  RAFFAN

FILE NO/S:  433/1989
DELIVERED ON:  22 August 1991
JUDGMENT OF:  Crawford J

Judgment Number:  A52/1991
Number of paragraphs:  22

Serial No 62/1991
List "A"
File No 433/1989

KROLCZYK v RAFFAN

REASONS FOR JUDGMENT  CRAWFORD J

22 August 1991

1. The plaintiff is the occupier and registered proprietor of the land comprised in Certificate of Title Vol 4219 Fol 94, being Lot 3 on Sealed Plan No 27360. The defendants are the occupiers and registered proprietors of neighbouring land compromised in Certificate of Title Vol 4219 Fol 92, being Lot 1 on the sealed plan. Appended to this judgment is a copy of the sealed plan. Both pieces of land had previously been owned by Mr and Mrs McEwan and were then comprised in Certificate of Title Vol 3453 Fol 79. Mr and Mrs McEwan subdivided and the separate titles to the lots were registered on 27 November 1985.

1. On the sealed plan to the south of Lot 1 is shown a right of way, running from the public road on the west known as Blackball Line Road, which passes from a point marked A to a point marked B through the plaintiff's Lot 3 and then from B to C through the defendants' Lot 1, terminating at point C which is a point on the boundary between the two lots. For approximately 200 metres of its length from point A it abuts Lot 1. It then curves away to the south before returning to the southern boundary of Lot 1 at point B. Both titles are expressed to be "together with such interests and subject to such encumbrances and interests as are shown in the Second Schedule". The Second Schedule in both titles is exactly the same, and provides:

"EASEMENTS set forth in Sealed Plan No 27360 benefiting or burdening this land".

1. The Schedule of Easements accompanying the plan provides that each lot is together with any easements described and subject to any easements described. The easements are described in the following terms:

   "Lot 1 on the plan is together with a right of carriage way over the Right of Way (Private) 10.00 wide marked A B on the plan.

   Lot 1 on the plan is subject to a right of carriage way (appurtenant to Lot 3) over the Right of Way (Private) 10.00 wide marked B C on the plan.

   Lot 3 on the plan is together with a right of carriage way over the Right of Way (Private) 10.00 wide marked B C on the plan.

   Lot 3 on the plan is subject to a right of carriageway (appurtenant to Lot 1) over the Right of Way (Private) 10.00 wide marked A B on the plan."

2. Before Mr and Mrs McEwan subdivided their land into Lots 1, 2 and 3 there was no right of way shown on their title.

1. The question which arises for determination is whether the owners of Lot 1 (the defendants) may only use the right of way by entering and leaving at points A and B, or whether they may enter and leave their land at any point on the right of way where it abuts their land. On the pleadings it is admitted that from time to time the defendants and their servants, agents and invitees have entered the way at point A and have deviated from the way by entering their land at a point on the plan immediately below the figures "28.81" (I have measured the distance on the plan from point A to that position as 80 metres) and also at a point where the figures "38.07" appear (which I have measured at 185 metres from A). It is admitted that at or about those points the defendants have erected gates on the boundary between the two lots. I will refer to them as gate 2 and gate 3 respectively. I have indicated their approximate positions on the appended plan. The plaintiff seeks to restrict the defendants' user of the right of way to involve only ingress and egress at points A and B, whereas the defendants maintain that they are entitled to ingress and egress at reasonable points along the right of way where it abuts their land.

1. By virtue of the Conveyancing and Law of Property Act 1884, s34A and of the definition of "instrument" in s2, the effect of the words "right of carriage way" in the description of the easements in the Schedule of Easements is provided in Schedule 8. Section 34A states:

"34A–(1)        In any instrument purporting to create or evidence an easement the words set forth in the first column of Schedule 8 shall have the same effect as if there had been inserted in lieu thereof the words appearing opposite them in the second column of that schedule.

(2)       Public policy requires that such words be given their full effect notwithstanding the creation of easements to arise at indefinite future times."

1. Schedule 8 states:

"Short Form     Full Form

Right of Carriage Way  Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorized by him, to go, pass, and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof."

1. The evidence established certain facts concerning the land at the time of the creation of the subdivision and the right of way. Mr and Mrs McEwan lived in a house, now occupied by the plaintiff, close to the southern boundary of what is now Lot 3. The roadway, which is constructed along the full length of the right of way, existed at that time. For part of its length off Blackball Line Road the roadway constituted road access to their house, there being a fork heading off to the house at about the word "WAY" on the sealed plan. There was no fence on what is now the boundary between Lots 1 and 3.

1. From Blackball Line Road the terrain of Lot 1 is relatively flat and open until just west of where the right of way runs almost due north across the lot up hill from B and then curves to the east. To the immediate west of the right of way where it runs up the hill is a steep drop through trees to a creek and then the relatively flat and open land runs to Blackball Line Road on the west.

1. The terrain from point A almost to point B is relatively flat and open and where the right of way abuts the boundary of Lot 1 there is nothing in the terrain to prevent access at any point from the road onto the land to the north, that is on to what is now Lot 1. Because of the trees and steep slope from the creek up to the right of way as it runs north from point B, there is no reasonably practicable vehicular route past the creek to the eastern half of Lot 1 from the western half. For this reason vehicular access to the eastern half at point B via the roadway on Lot 3 was plainly seen by the subdividers as important to an owner of Lot 1.

1. The only erection on Lot 1 was an old, derelict and unoccupied homestead which has since been demolished by the defendants.

1. I also state some other facts established by the evidence. The plaintiff and the defendants purchased their respective lots at auction in about October 1985, which was in fact prior to the registration of the separate titles the following month. Although they took possession in January 1986, it was not until Easter 1987 that the defendants moved into a house they had constructed on Lot 1. Over a period of time a fence was constructed along the common boundary from point A to just short of point B. In that fence the defendants installed gate 2 which leads directly into the area of their house and out buildings nearby. They installed gate 3 to give them access into a paddock, which I will call the back paddock. Gate 3 and a small section of the fence each side of it are not in fact on the boundary but a few metres north and east of it. In mid–1990 the defendants demolished the old homestead. To try and avoid unhappy differences between them and the plaintiff they also constructed a road from Blackball Line Road to the house, entirely across their land.

1. The defendants wish to enter and exit their property via gate 2 mainly for the purpose of convenient access to and from their house, outbuildings and gardens. They wish to use gate 3 for the purpose of entering and exiting the back paddock into which the gate leads.

1. The first and obvious observation to be made of the terms of the easement, incorporating into those terms the extended words contained in Schedule 8, is that it does not specify that access onto the right of way and egress from it can only be enjoyed by the defendants at point A and point B, nor that it exists for the purpose of enabling the defendants to get from point A to point B or to and from those two points. It contains no restriction of the nature sought by the plaintiff. The Schedule of Easements does not refer to a right of carriageway over the right of way "from A to B marked on the plan" but to a right of carriageway over the right of way "marked A B on the plan". The words "marked A B on the plan" do nothing but identify a particular section of the right of way which extends from point A to point C. The terms of the easement granted to the owners of Lot 1 "full and free right ... to go, pass, and repass ... for all purposes ... to and from the said dominant tenement" over the right of way so marked. What the defendants seek is plainly within the terms of the easement. They want to go, pass and repass to and from their property over the right of way which is marked A B There is nothing in the terms suggesting that they may not do so. In my opinion the answer is clear, the terms of the easement being unambiguous.

1. The claim of the defendants is further supported by the provision which allows them to go, pass and repass to and from "any part thereof" (that is, any part of the dominant tenement) "with which the right shall be capable of enjoyment".

1. If there be any ambiguity in the terms of the easement, but I do not see it, authorities suggest that the surrounding circumstances at the time of the creation of the easement may be considered. The Shannon Ltd v Venner Ltd [1965] 1 Ch 682 at p692; Horsfall v Braye (1908) 7 CLR 629 at p638. In some cases it has been said that the surrounding circumstances should be looked at, without mention of the need for ambiguity in the first place. In Saggers v Brown (1981) 2 BPR 97113 at p9331 Rath J said:

"The grant of the right of way is to be construed according to its language having regard to the surrounding circumstances at the time of the grant. It is necessary to determine whether the use claimed was within the reasonable contemplation of the parties at the time when the grant was made and all relevant circumstances are to be considered: Todrick v Western National Omnibus Company Ltd [1934] 1 Ch 190 at 206–7; on appeal [1934] 1 Ch 561 at 576, 577, 592".

1. One of the relevant circumstances is that if access to Lot 1 is to be restricted to point B there is not available to the owner of any part of the dominant tenement further to the west any reasonable or practicable vehicular route because of the hillside, trees and creek. This circumstance suggests that it was contemplated by the creators of the easement that access to the western part of the land could be gained wherever the right of way touched the boundary.

1. The determination of this case depends on the actual words used when creating the easement, so that other cases decided in the past have limited value as precedent. However, the trend of authority is to allow entry and exit to and from the dominant tenement at more than one point along a right of way which abuts that tenement. Examples are, Cooke v Ingram (1893) 68 LT 671; South Metropolitan Cemetery Company v Eden (1855) 16 CB 42 at pp57, 58; Sketchley v Berger (1893) 69 LT 754 and Saggers v Brown (supra).

1. In Saggers v Brown (supra) the right of way had, by virtue of the Conveyancing Act 1919 (NSW), s181A, an identical extended meaning to that provided by Schedule 8 in this case, save that in that case the right had to be exercised on foot. In that case the right of way ran for 49 feet adjacent to the boundary of the dominant tenement owned by the plaintiffs, and the owner of the servient tenement, who was the defendant, desired to erect a fence along the boundary. The following is a passage from the judgment of Rath J commencing at p9331, excluding from it the passage already cited by me. After referring to Pettey v Parsons [1914] 2 Ch 653 and Hose v Cobden [1921] VLR 617, Rath J said:

"The first two of these cases show that the erection of a fence along the right of way is not necessarily an interference with the reasonable enjoyment of the way. Petty v Parsons lays down, as a matter of general principle, that the grant of a right of way does not confer a right to go upon the right of way from any part of the dominant tenement adjoining the right of way. What the grant of the right of way involves is such access as shall be reasonable: see Lewis v Wakeling (1923) 54 OLR 647. ... The grant in the present case relates to suburban tenements with difficulties of terrain in the case of the dominant tenement but beyond that no particular emphasis has been laid upon surrounding circumstances in the construction of the grant.

The question of unlawful interference with the right of way is to be determined having regard to the reasonable requirements of the dominant tenement from time to time: Keefe v Amor [1965] 1 QB 334 at 346–7; McKellar v Guthrie [1920] NZLR 729–31. The grant in this case is a general right of way, that is to say there is no terminus a quo or terminus ad quem but neither this circumstance nor the wording of the grant, permitting, as it does, passage from any part of the dominant tenement with which the right is capable of enjoyment, precludes reasonable user of the servient tenement and, in particular, fencing of the servient tenement. In Lewis v Western National Omnibus Co Ltd, supra, the way was a general right of way (see p649) and the way in Pettey v Parsons, supra (p656), appears also to have been a general right of way. The grant in Hose v Cobden, supra (p619), was in its relevant aspect in similar terms namely: 'Into and out of and from the said land or any part thereof through and over and along the road or the way'.

Applying these principles I am of the opinion that the erection of a fence along the boundary of the right of way in this case does not of itself necessarily constitute an unlawful interference with the right of way. Reasonable user of the right of way is achieved by gateways placed at appropriate places in the fence. In my view the gates at the northern and southern extremities proposed by the defendants are reasonable and the defendants should not be required to erect a third gateway."

1. I propose to apply the statement in Saggers v Brown (supra) that "(w)hat the grant of the right of way involved is such access as shall be reasonable" and not a right to cross the boundary at all points. Counsel for the defendants did not seek to argue to the contrary.

1. It is reasonable that the defendants have access at gate 2 to their house, outbuildings and gardens and at gate 3 to their back paddock. No congestion or obstruction of the right of way will result. In fact counsel for the plaintiff conceded that no particular inconvenience would be suffered by the plaintiff. There is no merit in an argument that direct access between the right of way and the area of the house near gate 2 is unreasonable. It will be much more convenient for the defendants to use gate 2 when travelling to the eastern end of the property via point B and also to the back paddock. When conditions are wet that will be the most appropriate route to parts of the back paddock. There may well be avoided the need for construction of another internal road. At times it will be more convenient for a large vehicle to come to the house by one route and out by the other, for example by entering at gate 2 and exiting from the area of the house along the new road constructed by the defendants from Blackball Line Road across their land. The use of gate 3 will prove far more convenient for the purpose of moving stock between the back paddock and places outside the property. In all these circumstances, and taking into account the difficult terrain just west of point B, I have no hesitation in concluding that it is reasonable that the defendants have access through gate 2 and gate 3.

1. In all respects the plaintiff's claim will be dismissed. On the counter–claim I am prepared to declare that the defendants are entitled to enter and leave the right of way at gates 2 and 3, but invite submissions from counsel as to more appropriate wording.

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