Milne v James

The appellant, Mr. Milne, sought a declaration of right and a mandatory injunction against the respondent, Mr. James, to compel the removal of building attachments from the appellant's wall. The dispute concerned an alleged easement of support arising from an agreement between the predecessors in title of the parties. The case was heard on appeal from the Supreme Court of Western Australia.

The central legal issues before the court were whether an enforceable agreement for an easement of support had been created between the predecessors in title, and if so, whether the appellant, as a subsequent purchaser, had constructive notice of this agreement. The court was required to determine if the terms of the alleged agreement were sufficiently certain and definite to warrant specific performance, and whether the circumstances of the appellant's purchase constituted notice of the respondent's claim.

The court found that the alleged agreement was not one that a Court of Equity would specifically enforce. This was primarily due to the uncertainty and indefiniteness of its terms, particularly regarding its duration. The evidence suggested that the arrangement was likely a revocable licence rather than a perpetual easement, and equity generally does not grant specific performance for such agreements. Furthermore, the court held that even if a valid agreement existed, the appellant did not have constructive notice of it. The visible evidence at the time of purchase, including a survey showing an encroachment and the existence of a parapet wall, did not, in the court's view, impose a duty on the appellant to inquire further into the nature of the respondent's building's attachment to the shared wall, especially given the deed of 1896 which indicated separate walls.

Consequently, the appeal was allowed. The court declared that the wall and any additions were the property of the appellant and granted a perpetual injunction restraining the respondent from continuing to support his building's beams and roof on the appellant's wall. The appellant was also awarded an inquiry as to damages and the costs of the action.