Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles (No 2)
[2024] TASSC 47
•30 August 2024
[2024] TASSC 47
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles (No 2) |
| [2024] TASSC 47 | |
| PARTIES: | OLYMPUS SUPERANNUATION FUND (TAS) PTY |
| LTD as trustee for the Olympus Superannuation Fund | |
| v | |
| RECORDER OF TITLES | |
| BLUE HOUSE CORNER PTY LTD | |
| FILE NO: | 463/2021 |
| DELIVERED ON: | 30 August 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 16 August 2024 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Real Property – Easements – Easements generally – Creation – By express agreement or under statute – Dominant tenement and uncertainty – Dominant tenement not identified in conveyance – Evidence of extrinsic circumstances.
Aust Dig Real Property [1474]
Cases cited:
Callard v Beeney [1930] 1 KB 353
Gapes v Fish [1927] VR 88
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37, 256 CLR 104
Parramore v Duggan (1995) 183 CLR 633
Rangeley v Midland Railway Co (1868) LR 3 Ch 306
Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989
Re Maiorana and the Conveyancing Act [1970] 1 NSWR 627
The Shannon Ltd v Venner Ltd [1965] Ch 682
Thorpe v Brumfitt (1873) LR 8 Ch App 650
REPRESENTATION:
Counsel:
Applicant: K E Read SC First Respondent: M E O'Farrell SC Second Respondent: A C R Spence SC, E Dordhain
Solicitors:
Applicant: Butler McIntyre & Butler First Respondent: Murdoch Clarke Second Respondent: Page Seager
| Judgment Number: | [2024] TASSC 47 |
| Number of paragraphs: | 48 |
Serial No 47/2024 File No 463/2021
OLYMPUS SUPERANNUATION FUND (TAS) PTY LTD as trustee for the Olympus
Superannuation Fund v RECORDER OF TITLES
and BLUE HOUSE CORNER PTY LTD
| REASONS FOR JUDGMENT | BLOW CJ 30 August 2024 |
1 This application concerns a dispute as to whether an easement was created by a conveyance executed in 1915 and, if so, whether the land benefited by that easement included two parcels of land now known as 21 and 23 Salamanca Place, Hobart and forming the site of an establishment known as "Irish Murphy's".
2 George Adams died on 23 September 1904. At the time of his death, his Tasmanian assets included much of the land in the block bounded by Gladstone Street, Salamanca Place, Montpelier Retreat and Kirksway Place. On 24 November 1915 the trustees of his estate conveyed some of that land to a purchaser, The Tasmanian Rosella Preserving Company Limited. They conveyed and transferred three parcels of land to that company. They retained some adjoining land, and purported to reserve a right of way to themselves over one of those three parcels of land – a small area at the rear of 23 Salamanca Place. The conveyance did not specify any land to which the right of way was intended to be appurtenant.
3 The applicant in this proceeding, Olympus Superannuation Fund (Tas) Pty Ltd, is the now registered proprietor of the three parcels of land that were the subject of the transaction in 1915. Those parcels of land are now collectively known as 25 Salamanca Place. The second respondent to the application, Blue House Corner Pty Ltd, is the registered proprietor of two parcels of land now known as 21 and 23 Salamanca Place. Its land is between the applicant's land and Gladstone Street. Its land forms part of the land that the trustees retained at the time of the conveyance in 1915. It is now Torrens Title land, having been brought under the Real Property Act 1862 in 1925.
4 Prior to 2019, the right of way created in 1915 was not recorded on the folios of the register for the properties now owned by Blue House Corner. During 2019 that company applied to the Recorder of Titles under s 139 of the Land Titles Act 1980 for him to record the benefit of that right of way on its two titles. The Recorder determined that there was an omission in the register, in that the benefit of the right of way had not been recorded on the titles to the benefited lands. On 20 December 2019 the benefit of the right of way was recorded on the two titles of Blue House Corner.
5 The applicant is aggrieved by the Recorder's decision. It commenced these proceedings in 2022 in the hope of establishing that the lands of Blue House Corner were not benefited by the right of way, and having the register altered accordingly. I conducted a hearing of this application in November 2021. In March 2022 I dismissed it, holding that Blue House Corner had an indefeasible title to the right of way as a result of the benefit of it having been recorded on its two titles in December 2019: Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2022] TASSC 16. I was wrong about that. The Full Court subsequently allowed an appeal from my judgment, set aside my order dismissing the originating application, and remitted that application to be reheard by me: Olympus Superannuation Fund (Tas) Pty Ltd v Recorder of Titles [2023] TASFC 6. Blue House Corner did not have an indefeasible title to the right of way. One can obtain a indefeasible title to a piece of land of which one is the registered proprietor, but one cannot obtain an indefeasible title to an interest in any land of another registered proprietor: Parramore v Duggan (1995) 183 CLR 633 per Brennan J (as he then was) at 636.
6 The orders now sought by Olympus are as follows:
2 No 47/2024
"1 that the Recorder justify his decision to:
(a) give a direction to the Land Titles Office, on or about 20 December 2019, to register the benefit of an omitted easement on the titles comprised in folio of the Register Volume 67868 Folios 1 & 2. (b) in the period after giving the direction to register the benefit of the easement noted in (a) above, refuse to reverse the direction to register the benefit of the easement, including when requested by the Applicant's solicitors on 18 December 2019, 18 February 2020, 2 March 2020 and 6 August 2020. 2 the Court order that the Benefitting Easement in Conveyance 13/7548 registered by the Land Titles Office on the titles compromised [sic] in folio of the Register Volume 67868 Folios 1 & 2 be removed."
7 The lands comprised in folios of the register Volume 67868 Folios 1 and 2 are the properties of Blue House Corner at 21 and 23 Salamanca Place. Conveyance 13/7548 was the conveyance dated 24 November 1915 relating to 25 Salamanca Place.
8 When this application was previously before me, there were evidentiary objections and I admitted the evidence de bene esse. All evidentiary objections have now been withdrawn. The parties agreed that all the evidence was to be admitted and that submissions could be made as to weight.
9 The diagram below shows the various parcels of land to which these proceedings relate:
Salamanca
Place
10 During his lifetime George Adams acquired the properties shown on that diagram as 21, 23, 25 and 27 Salamanca Place as well as 2 and 4 Gladstone Street. He also acquired the rectangular parcel shown as "25 Salamanca – Torrens title". He acquired the property shown as 4 Gladstone Street, including the area shown on the diagram as "Reservation Land", as the purchaser named in a conveyance dated 21 July 1902, registered number 10/5579, from vendors named Edwards, Peacock and Moore. That conveyance also included the grant of the right of carriageway appurtenant to the
3 No 47/2024
property shown on the diagram as 4 Gladstone Street, including the "Reservation Land", over the land
shown on the diagram as "Foster easement".11 The three parcels of land sold by the trustees of the Estate of George Adams to The Tasmanian Rosella Preserving Company Limited were those shown on the diagram as "25 Salamanca General Law", "25 Salamanca – Torrens title", and "Reservation Land". The first and third of those parcels were conveyed to the purchaser by conveyance 13/7548, together with a right of way over the Reservation Land.
12 According to the memorial[1] of that conveyance, the words creating that right of way were as
follows:
"… but reserving nevertheless to the Vendors their heirs executors administrators and assigns and all persons authorised by them at all times hereafter by day or by night and for all purposes with or without horses carts carriages or wagons laden or unladen to go pass and repass and to drive cattle sheep and other animals along, over and upon all that piece of land shown on the said plan and therein surrounded by brown boundary lines being the land secondly hereinbefore described".
[1] Pursuant to s 4 of the Registration Act 1827 (8 Geo IV, No 5), registration of a conveyance was effected by writing a memorial thereof on parchment and delivering it into the office of the Registrar of Deeds. That section was the predecessor of s 12 of the Registration of Deeds Act 1935 which is still in force.
13 It is clear from those words that a plan was endorsed on the conveyance. The conveyance itself does not form part of the evidence before me. A copy of the memorial of the conveyance, as registered in the Register of Deeds, is before me. The plan has not been reproduced as part of the memorial. It is clear however that the plan showed the Reservation Land surrounded by brown boundary lines.
14 Following the conveyance and transfer of the three parcels of land to the purchaser, the trustees of the will of George Adams retained ownership of all the land bounded by the purchaser's land, Salamanca Place, Gladstone Street, and the Foster easement, except for a small strip of land between 21 Salamanca Place and 2 Gladstone Street, over which they had a right of way. Blue House Corner contends that the words that I have quoted from the conveyance created a right of way over the Reservation Land, and that the dominant tenement was the whole of that retained land.
15 Olympus contends that, because there was no description of any dominant tenement in the conveyance, it did not create a right of way whose benefit ran with any land, but instead created a licence that was personal to the vendors, namely the trustees of the will of George Adams. In the alternative it contends that, if there was a validly created easement with a dominant tenement, that dominant tenement did not include any of the land now belonging to Blue House Corner.
Some relevant authorities
16 Counsel for the applicant, Mr Read SC, relied heavily on a decision of the Full Court of the Supreme Court of Victoria, Gapes v Fish [1927] VR 88. The appellant in that case had brought an action in the County Court alleging disturbance of a right of way. She was non-suited and appealed. She contended that she was entitled to an easement over a strip of land running from the boundary of her land, over adjacent land of the defendant, and over other land, to a public road. She relied on the reservation of a right of way contained in a conveyance by her predecessor in title to the defendant's predecessor in title. No reference was made to any dominant tenement in the conveyance. The appellant's land formed only a part of the land of the grantor who executed that conveyance.
17 The Full Court concluded that the reservation of a right of way contained in the conveyance created no more than a personal licence, as distinct from an interest in land that would pass to a
4 No 47/2024
successor in title. In delivering the judgment of the Court, Dixon A-J (as he then was) said the
following at 89:""No reference is made to any dominant tenement for the advantage of which the way might be reserved. In point of fact, the person in whose favour the reservation was thus made was owner of a parcel of land which included that now belonging to the plaintiff, and it may well be supposed that it was desired to annex the easement to this parcel.
But there is no indication in the reservation of any intention to make the easement appurtenant at all, and no reference to this parcel of land can be found in the instrument.
If some reference to an unidentified parcel of land were made in terms which indicated an intention to annex the enjoyment of the way to it, probably evidence to identify it might be admitted."
18 At 90, his Honour said that the reservation was an attempt to create an "easement of way in gross", but referred to a judgment of Lord Cairns LJ holding that there could be no such thing: Rangeley v Midland Railway Co (1868) LR 3 Ch 306 at 310.
19 There are a number of reported English cases concerning easements that were created by conveyances that did not expressly identify any dominant tenement. In Thorpe v Brumfitt (1873) LR 8 Ch App 650, the plaintiff had brought an action asserting the obstruction of a right of way, and had obtained a perpetual injunction against the defendants, who appealed. There was no dispute as to the existence of a right of way. James and Mellish LJJ were satisfied that the right of way had been obstructed and dismissed the appeal. Both of their Lordships commented on a peripheral issue as to the extent of the dominant tenement. The plaintiff was the owner of an inn, and of a yard adjacent to the inn. A right of way between a public street and the yard had been created in July 1853. In March 1854 the parties executed conveyances to adjust their mutual boundary, and to create a new right of way. There was an issue as to whether the new right of way was appurtenant to all the land of the inn and its yard, or only to the land conveyed to the plaintiff to effect the boundary adjustment. At 656, James LJ expressed the view that the grant of the new right of way "must be construed reasonably as meaning a right of way between the highway and the yard of the inn of which the grantees were the owners", rather than appurtenant to a small piece of ground that had been "granted only for the purpose of being thrown into the yard, so as to make a more convenient boundary line between the properties of the grantor and the grantees". Mellish LJ, at 657-658, took the view that the dominant tenement was the small piece of land conveyed at the time of the boundary adjustment, but treated the words "for all purposes" in the conveyance as meaning "for all purposes which make it necessary to pass between that piece of ground and the street".
Callard v Beeney [1930] 1 KB 353 concerned a conveyance that included the words, "And together also with a right of way 14 feet wide … in and over the portion of the field numbered 171 belonging to the vendor for the purpose of access to and from the point marked X on the said plan to the field numbered 169". By that conveyance the vendor had conveyed a number of fields to the purchaser, including that numbered 169. On appeal to the Court of King's Bench, Talbot and Wright JJ held that the dominant tenement was the whole of the land conveyed to the purchaser, and not just field 169.
21 Johnstone v Holdway [1963] 1 QB 60 concerned a conveyance in 1948 by a vendor as a trustee and a company as the beneficial owner to a purchaser of land delineated in a plan that included a reservation of a right of way. The words of the reservation were, "… except and reserving unto the company and its successors in title its or their tenants and workmen and all other persons authorised by the company or its successors in title a right of way at all times and for all purposes (including
5 No 47/2024
quarrying) with or without horses carts and vehicles of all types and description described between the
points marked 'A' and 'B' on the said plan".22 At point "B" on the plan, the right of way terminated on a highway. Point "A" on the plan was on the boundary of the company's property. The company owned adjacent land which included a quarry.
23 An action was brought by the company's successors in title. They sought a declaration that they had a right of way over the strip of land from point "A" to point "B". A County Court judge granted the declaration sought, and the defendant appealed. The appeal was dismissed. The Court of Appeal held that the dominant tenement included the land adjacent to the right of way and also the quarry. Upjohn LJ, delivering the judgment of the Court of Appeal, said the following at 612:
"In our judgment, it is a question of the construction of the deed creating a right of way as to what is the dominant tenement for the benefit of which the right of way is granted and to which the right of way is appurtenant. In construing the deed the court is entitled to have evidence of all material facts at the time of the execution of the deed, so as to place the court in the situation of the parties. In this case it is quite plain that, when investigating title in 1948, the purchaser must have had before him the agreement of April 1, 1936, because that was part of the equitable title which was being conveyed by the company. It is then clear that the purchaser would know that the vendor and the company were the owners of the land and quarry immediately to the northwest of the land conveyed, as identified in the plan annexed to the particulars of claim. In addition, it is to be noted that the quarry is mentioned on the plan annexed to the conveyance and the right of way is expressed to include the right of quarrying. In those circumstances, it seems to us perfectly plain that in this case the dominant tenement was the land and quarry."
24 In The Shannon Ltd v Venner Ltd [1965] Ch 682, a vendor had conveyed two parcels of land to the plaintiff company, the first in 1927 and the second in 1930. The plaintiff built a factory on the first parcel of land. After the second conveyance it extended the factory onto the second parcel. There was no physical division between the two parcels. The second conveyance contained the grant of a right of way in the following terms:
"… together with a right of way for the company and their successors in title … along
the private estate drive of the vendor as coloured yellow on the said plan …".
25 By a third conveyance the vendor conveyed to the defendant, Venner Limited, a parcel of land adjacent to that of the plaintiff company together with the private estate drive, subject to the right of way granted to the plaintiff. The Court of Appeal held that the dominant tenement was the whole of the plaintiff' company's land. Danckwerts LJ, delivering the judgment of the Court, said the following, at 692:
"An argument was put forward that there was no dominant tenement, and the right was merely a licence personal to the plaintiff company. But this argument cannot be convincing. It is most improbable that the document could have been intended to create such an unsatisfactory situation.
It was contended by Mr Lightman that, in the absence of a statement identifying the dominant tenement, there must be a presumption, or possibly an inference, that the land actually conveyed by the deed must be the dominant tenement. That may be so in the absence of evidence causing an inference that some other land was the dominant tenement for the benefit of which the easement was created, but it cannot be an irrebuttable presumption."
26 These English cases were all considered by Hope J in Re Maiorana and the Conveyancing Act [1970] 1 NSWR 627. That case concerned a transfer of a parcel of Torrens title land. The transferor was the registered proprietor of Lots 2, 3 and 23 and part of Lot 25 in a subdivision. All of
6 No 47/2024
that land was comprised in a single certificate of title. In 1903 she transferred part of Lot 23 to a purchaser, subject to a reservation of a right of way. No dominant tenement was identified in the memorandum of transfer. The words of the reservation were as follows:
"RESERVING unto myself my heirs and assigns and all other persons authorized by me or them a full free and absolute right of way over the said land intended to be hereby transferred at all times with or without carts carriages horses or other animals".
27 Many years later, the registered proprietors of the land transferred in 1903 applied for declarations that their land was not affected by any right of way created by the transfer, and that the alleged easement noted on their certificate of title was not enforceable. Hope J dismissed the application.
28 His Honour distinguished Gapes v Fish (above). He said the following in relation to that case
at 631:
"It seems to me that this is not a decision that regard cannot be had to extrinsic circumstances, but simply that there was nothing in the instrument or in any extrinsic circumstances to identify the dominant tenement. The decision as reported is unsatisfactory because all the terms of the document or documents involved and the surrounding circumstances are not described."
29 I agree with those comments. Gapes v Fish certainly does not stand for the proposition that, under the general law, an easement cannot be created by a conveyance that does not define or identify the dominant tenement.
30 After reviewing the English cases, Hope J said the following at 632:
"…it is apparent that the Court can have regard to surrounding circumstances if, in a document operating under the general law, there is the grant or reservation of a right of way with either no identification or no certain identification of the dominant tenement contained in that document."
31 His Honour went on to make findings that the transfer in 1903 created an easement, not a personal licence, and that the dominant tenement was the whole of the residue of the land in the transferor's certificate of title.
32 The approach taken by his Honour was also entirely consistent with the reasoning in Johnstone v Holdway (above), in which the Court of Appeal took the view that the question before it was one of the construction of a deed, and that evidence of the material facts at the time of the execution of the deed was relevant to the task of construction. His Honour's approach was entirely consistent with the more recent authorities relating to the relevance of the factual matrix at the time of the execution of an instrument, the circumstances addressed by a contract, and the commercial purpose or objects to be secured by a contract: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37, 256 CLR 104.
The conveyance and its factual matrix
33 A survey plan completed by a surveyor in June 1914 is in the evidence before me. It shows the position and dimensions of the Reservation Land and the bearings of its boundaries, as well as details of the boundaries of the other parcels conveyed by the trustees to the Rosella Preserving Company in 1915. I infer that it was prepared for the purpose of the sale to that company. That plan contains the following information:
7 No 47/2024
• The land on the east side of Gladstone Street to the south of the Foster easement is marked "Trustees Foster's Est. Owners". • The Foster easement is shown as "RIGHT OF WAY". • The land retained by the trustees of the Estate of George Adams bounded by the Foster easement, Gladstone Street, Salamanca Place and 25 Salamanca Place is marked "Stone Buildings Trustees Geo Adams Est Owners". • In the south eastern corner of 23 Salamanca Place, adjacent to the northern boundary of the Reservation Land, there is a rectangular area marked "Brick Urinals". It measures about 7 feet from east to west, and about 25 feet from south to north. • The boundary between 23 and 25 Salamanca Place is shown as comprising three sections. Beginning from Salamanca Place, there is first a "Stone Party Wall 2ft wide". Next there is a "Stone Wall 2' wide". Then, beginning a little north of the brick urinals, there is a "Brick Party Wall" extending to the boundary between 23 Salamanca Place and the Reservation Land. 34 Conveyance 13/7548 contained a number of references to the land retained by the vendors on the Gladstone Street side of the land thereby conveyed:
• The description of the boundary between 25 and 23 Salamanca Place referred to no 23 as "other land belonging to the Vendors". • The conveyance included the grant of an easement for support in respect of a section of wall on the boundary between 23 and 25 Salamanca Place. The words creating that easement were as follows: "and also reserving nevertheless to the Vendors their heirs executors and administrators and assigns full and free right liberty and authority to make all necessary and proper cuttings in the wall situate on the North Western boundary of the land hereby conveyed and shown on the said plan and marked with the letters E to F for the insertion of girders for the support of any new Buildings or additions to the existing building and floor and roof thereof on the land belonging to the Vendors and to place and maintain such girders therein and from time to time renew all or any such girders". (My emphasis.)
• The description of the Reservation Land referred to the land retained by the vendors at 4 Gladstone Street as "other land belonging to the Vendors". 35 The evident purpose of the conveyance of the Reservation Land was to give the Rosella Preserving Company rights of access from Gladstone Street to the rear of 25 Salamanca Place. The trustees of the Estate of George Adams were not in a position to grant the Rosella Preserving Company a right of way over the strip of land adjacent to 4 Gladstone Street (the Foster easement), over which they had a right of way. However, they were in a position to sell part of the dominant tenement, with the result that the purchaser would acquire a right of way over that strip of land.
36 In Tasmania in 1915, owners of general law land were at liberty to dispose of as much or as little of any piece of land as they wished. Subdivisions of Torrens title land may have been regulated by the Real Property Act 1862. However, it would seem that the regulation of subdivisions of general law land did not occur until the enactment of s 36 of the Town and Country Planning Act 1944. George Adams may well have acquired the land between 25 Salamanca Place and Gladstone Street piecemeal, and it is clear that there were four substantial buildings standing on that land, two with front entrances on Salamanca Place and two with front entrances on Gladstone Street. However, for
8 No 47/2024
the purposes of the general law, there was one parcel of land which could be divided and disposed of
in any manner that the owner or owners pleased.37 The Recorder of Titles swore an affidavit for the purpose of the proceedings. One of the annexures to that affidavit was a Deeds Register search extract which included a list of transactions involving William Joseph Adams and others from 1908 to 1917. William Joseph Adams and three others were the trustees of the will of George Adams. It is clear that, at least from 1908, they were selling general law properties in Hobart that formed part of the estate. William Joseph Adams was described in the conveyance as a business manager. The other trustees were a Sydney solicitor, a Hobart accountant, and a Hobart solicitor.
38 There is a body of evidence as to the physical characteristics of the various parcels of land. It comprises survey plans, registered deeds, and affidavits from individuals familiar with the properties. That evidence establishes the following:
•
At the time of the conveyance, there was a wall about eight feet high dividing the Reservation Land from the rear of 23 Salamanca Place.
•
According to a plan prepared by a surveyor in 1921, 23 Salamanca Place was then the site of the Rear-Admiral Hornby Hotel. There was a courtyard at the back of the building. The ground level of the courtyard was about 18 feet below the top of the wall. The brick urinal building that I have referred to was in the south eastern corner of that property. At the time of the 1921 survey there was a galvanised iron lean-to in the south western corner of the property. However it might not have been there in 1915.
•
According to the 1921 surveyor's notes, the buildings at 2 and 4 Gladstone Street had a rear wall running from the Foster easement in a northerly direction to a point 35 feet, 9 ¾ inches north of the south western corner of 23 Salamanca Place. The building occupying 2 and 4 Gladstone Street was described as "old stone building". It had walls along the Foster easement, the frontages to Gladstone Street, and a right of way extending from Gladstone Street to 23 Salamanca Place.
•
That right of way passes between 2 Gladstone Street and the rear of 21 Salamanca Place. It provides access to the rear yard of 23 Salamanca Place.
•
The buildings on 21 and 23 Salamanca Place have direct access onto Salamanca Place, and always have had, as the diagram above shows.
The effect of the reservation
39 The words of the reservation whose effect is in dispute are set out above at [12]. There appear to be some nouns missing. It may be that words contained in the conveyance were omitted from the memorial. Alternatively, it may be that words were inadvertently omitted from the conveyance. I infer that the conveyance either said or should have said something like this:
"… but reserving nevertheless to the Vendors their heirs executors administrators and assigns and all persons authorised by them full right and liberty at all times hereafter by day and by night and for all purposes with or without horses carts carriages or wagons laden or unladen to go pass and repass …".
40 The italicised words do not appear in the memorial. I am unable to say whether or not such words appeared in the conveyance and were omitted from the memorial, or whether they were omitted from the conveyance.
9 No 47/2024
41 Four other easements were created by or referred to in the conveyance. Three easements for support were granted by the conveyance appurtenant to the parcel of land thereby conveyed with a frontage onto Salamanca Place. The first was a grant of "full and free right liberty and authority for the Company its successors and assigns". The second was a reservation "to the Vendors their heirs executors administrators and assigns … [of] full and free right liberty and authority …". The third was a reservation to "the Vendors their heirs executors and administrators and assigns [of] full and free right liberty and authority …". Finally, the benefit of the Foster easement was conveyed using the words "together also with full right and liberty for the Company its successors and assigns and all persons authorised by them at all times hereafter by day or by night … to go pass or repass …".
42 The words of reservation in the memorial relating to the Reservation Land make no sense without one or more nouns being read into the document between the list of grantees and the list of rights granted. I infer that either the word "right" or the words "right and liberty" or the words "right, liberty and authority" were inadvertently omitted, possibly from the memorial only, or possibly from the conveyance.
43 Subject to that omission, I think it is clear that the parties must have intended the conveyance to create a right of way appurtenant to some land, as distinct from a licence personal to the vendors, namely the trustees of the estate of George Adams. The trustees were men of business. The buildings in Salamanca Place and Gladstone Street were commercial premises. The purchaser appears to have been a trading corporation, probably a jam company. The trustees had commenced selling off real estate that had belonged to George Adams. It made good commercial sense to grant rights of way rather than personal licences. In fact the block surrounded by Gladstone Street, Salamanca Place, Montpelier Retreat and Kirksway Place contained a number of rights of way. The words of the reservation, if the omitted words were supplied, were the words a conveyancer would have used to create a right of way appurtenant to land of the vendors. If the parties had intended that the vendors were to retain a licence, rather than an interest that ran with the land, there would have been no need to mention it in the conveyance. It could have been created by a term of the contract for the sale of the land, which was no doubt a written contract rather than an oral one.
44 Having regard to all those circumstances, I am satisfied that the parties intended the conveyance to create a right of way over the Reservation Land.
45 I turn the question of the identification of a dominant tenement. It is true that the only land of the vendors conveniently accessible from the Reservation Land was the residue of the rear yard of 4 Gladstone Street. From the Reservation Land, one could go over the rear wall of 23 Salamanca Place and down 18 feet to its rear yard, and from there gain access to the eastern wall of 2 Gladstone Street, the building at 23 Salamanca Place, and the southern wall of 21 Salamanca Place. I have no evidence as to what doors, if any, existed in the walls of any of the relevant buildings, other than on their street frontages. The rear yard of 23 Salamanca Place, and the walls of other buildings accessible from it, could be approached much more conveniently from Gladstone Street using the right of way between 21 Salamanca Place and 2 Gladstone Street.
46 However the land retained by the vendors between 25 Salamanca Place and Gladstone Street was a single parcel of land for the purposes of the general law. If the parties had intended the benefit of the right of way to be annexed to only a part of the retained land, the appropriate course would have been to identify that part as the dominant tenement in the conveyance, but that was not attempted. The existence of land retained by the vendors on the western side of the property conveyed was acknowledged in the conveyance. A grant benefitting the whole of the retained land would have been to the advantage of the vendors, and would probably have made little difference to the Rosella Preserving Company.
10 No 47/2024
47 Having regard to all the circumstances, I am satisfied that the dominant tenement was intended to be all of the land retained by the vendors between 25 Salamanca Place and Gladstone Street.
Conclusion
48 For these reasons the application is dismissed.
0
5
0