Lord v Maguire

[2009] VCC 765

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT WODONGA
COMMERCIAL LIST

EXPEDITED CASES DIVISION

Case No. CI-08-03994

HENRY WILLIAM LORD	Plaintiff
v.
PHILLIP JAMES MAGUIRE and ORS	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Wodonga
DATE OF HEARING:	29 June 2009
DATE OF JUDGMENT:	29 June 2009
CASE MAY BE CITED AS:	Lord v. Maguire & Ors
MEDIUM NEUTRAL CITATION:	[2009] VCC 0765

REASONS FOR JUDGMENT

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Catchwords:  Property – adverse possession – Mitta Mitta River altered its course in 1956 – Since that time part of the defendants’ land on the opposite side of the river – Exclusively occupied by the plaintiff as part of his dairy farm.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Gilles	Trivett Keating
For the First & Second	Mr B. Wyatt	Rigby Cooke
Defendants
For the Third Defendant	No appearance
HIS HONOUR:

1           The plaintiff owns farming land adjacent to the Mitta Mitta River, comprising lots 1, 2 and 3 on Title Plan 862327T, being the whole of the land contained in Certificate of Title Volume 6619 Folio 642. In a large flood in 1956, the course of the Mitta Mitta

River changed and land that had been on the other side of the river became directly accessible from the plaintiff’s land. This land is part of allotments 11D and 11E in the parish of Mitta Mitta, being part of the land contained in Certificate of Title Volume 8057 Folio 619. The course of the Mitta Mitta River is unlikely to change again because of the construction of the Dartmouth dam, which regulates the flow of water in the river downstream from the dam.

2 1.514 hectares in area and the part of allotment 11D, which is on the southern side of
the river is 1.340 hectares in area. In the proceeding, the plaintiff, through his wife,
Mrs Lilian Lord as his litigation guardian, has sought a declaration that he is entitled

The part of allotment 11E that is now on the southern side of the Mitta Mitta River is southern side of the Mitta Mitta River. At the time of the flood in 1956, Crown allotments 11D and 11E were owned by the Nielson family. They had farmed the land north of the river for two generations at that time.

3 Nielson, who gave evidence before me. He was born in 1949, and from the age of
16, he worked on the family farm. He recalled that after the 1956 flood, when the river

Subsequently, the property was farmed by a third generation member, Mr Malcolm the river was now on the other side of the river. After the flood, the plaintiff, Mr Lord, used the land for his farming and dairy activities. Mr Lord maintained the land, he eradicated weeds and blackberries, applied fertiliser and primarily used the land when turning out his dairy cows. Occasionally when the river was low, Mr Nielson’s cows may have crossed the river. When the Lords became aware of this, they contacted Mr Nielson and the cattle were removed.

4           Mrs Lord gave similar evidence and said that her husband had continuously used and occupied the parts of allotments 11D and 11E, which were now on the southern side of the river. Subsequently, in 1994, the Nielsons sold the property to the Duncan family. In 2007, the property was transferred to the defendants. The present proceeding became necessary when the defendants asserted that as the registered proprietors of the land, they were entitled to it and that the plaintiff was trespassing.

5           The property has been carefully and thoroughly surveyed by Mr Russell Douthett and his report dated 24 April 2009 is in evidence. He has surveyed the two parts of Crown allotments 11D and 11E, taking account of the banks of the Mitta Mitta River, which

he has established from personal observation and by examination of the record of
river flows over the last 10 years.

6           I am satisfied that the two parcels of land that he has surveyed and mapped, which appear at p.56 of the Court Book as part of his report, accurately reflect the two parts of the Crown allotments which have been continuously occupied by the plaintiff since 1956, and which he has acquired by adverse possession.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 29 June 2009.

Dated: 29 July 2009

Caroline Dawes

Associate to His Honour Judge Anderson