R J and C Holdings Pty Ltd v Parkside Developments Vic Pty Ltd
[2016] VCC 237
•11 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-02661
| R J & C HOLDINGS PTY LTD | First Plaintiff |
| and | |
| DCJ INVESTMENTS PTY LTD | Second Plaintiff |
| V | |
| PARKSIDE DEVELOPMENTS (VIC) PTY LTD | First Defendant |
| and | |
| THE REGISTRAR OF TITLES | |
| Second Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 – 12, 15, 22, 29 February 2016 | |
DATE OF JUDGMENT: | 11 March 2016 | |
CASE MAY BE CITED AS: | R J & C Holdings Pty Ltd v Parkside Developments Vic Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 237 | |
REASONS FOR JUDGMENT
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Subject: EASEMENTS; TRESPASS; ESTOPPEL; INJUNCTION
Catchwords: EASEMENTS – whether easement abandoned – whether registration affects abandonment – whether easement overburdened
TRESPASS – whether trespass is established – remedies – whether injunctive relief appropriate – damages
ESTOPPEL – issue estoppel – whether estoppel must be pleaded
Legislation Cited: Section 73 Transfer of Land Act 1958 (Vic)
Cases Cited:Benn v Hardinge (1992) 66 P & CR 246; Beswicke v Alner [1926] VLR 72; Bookville Pty Ltd v O’Loghlen [2007] VSC 67; Boulter v Jochheim [1921] QSR 105; Gallagher v Rainbow (1994) 179 CLR 624; Grill v Hockey (1991) 5 BPR 11,421; Hale v Dobbie (Unreported) 22 April 1994; James v Stevenson [1893] AC 162; Jelbert v Davis [1968] 1 All ER 1182; Macfarlane v Nairn (1903) 2 N&S 136; Patel v W.H. Smith (Eziot) Ltd [1987] 1 WLR 853; Perry v Fitzhowe (1846) 8 QB 757; Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch. 149; Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605; Ray v Fairway Motors (Barnstaple) Limited (1968) 20 P&CR 261; Riley v Penttila [1974] VR 547; Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315; Stevenson v James (1889) 15 VLR 165; Symons v McNicoll (Unreported) 15 May 1998; Tapling v Jones (1865) 11 HLC 290; Tehidy Minerals Ltd v Norman [1971] 2 QB 528; Ward v Ward (1852) 7 Exch 838; 155 ER 1189; Webster v Strong [1926] VLR 509;Wolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017; and Wood v Sutclifffe (1851) 2 Smin (N.S) 163.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Twidale | Vernon Da Gama & Associates |
| For the Defendant | Mr K Mihaly | Megan Copas |
HIS HONOUR:
1 This case concerns a dispute between two adjoining landholders regarding an easement. The main issues between the parties are:
(a) whether the easement has been abandoned or is still on foot;
(b) if the easement is still on foot, whether the use of the easement is beyond what was contemplated at its creation in 1919;
(c) whether the plaintiffs or first defendant interfered with the easement.
Background
2 The first plaintiff (“RJC”) is a company controlled by Robin Jesberg. The second plaintiff (“DCJ”) is a company controlled by Dorae Jesberg (“Jesberg”). Robin and Dorae are brother and sister. Together, the plaintiffs are the registered proprietors of the servient tenement, being the land at 13-23 Wendel Street, Brunswick, Victoria, and the land in Certificate of Title Volume 9965 Folio 383.
3 The first defendant (“Parkside”) is registered proprietor of the dominant tenement being the property at 95 Hope Street, Brunswick. This property comprises two titles, being Certificate of Title Volume 9965 Folio 381 (“the principal title”) and Certificate of Title Volume 9989 Folio 365 (“the former easement title”).
4 The principal title was originally contained in Certificate of Title Volume 4175 Folio 840. It was subsequently cancelled and the land was transferred out into a new title, Certificate of Title Volume 4245 Folio 916.
5 In about August 1919, the then registered proprietor of the land, Sarah Harding, created a registered easement number 903901 over the plaintiffs’ land in favour of Parkside’s property. By the terms of the document creating the interest, the easement permitted the proprietors for the time being of the dominant tenement “to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into or out of and from the said land or any part thereof through over and along” the area marked on the title plan. The easement was 3.05 metres wide and 26.52 metres long and was for the benefit of the land in the principal title.
6 Parkside had a series of predecessors in title to 95 Hope Street:
·Tommaso and Filomena Cavuto were registered joint proprietors beginning no later than 1 August 1969.
·Blackmores Specialised Transport Pty Ltd became registered proprietor on 3 December 1969.
·Mandible Pty Ltd became the registered proprietor on 6 September 1973.
·Gatic (Australia) Pty Ltd (“Gatic”) became registered proprietor on 2 May 1977.
·John Muratti became registered proprietor on 14 December 1989.
·Oceania Australia Paving Pty Ltd was registered proprietor from 2 November 1990 until Parkside became registered proprietor.
7 On about 26 February 1990, John Muratti surrendered part of the easement. In effect, Muratti surrendered that part of the easement which was formerly located at the southern end of 95 Hope Street.
8 On 30 September 2002, the plaintiffs became registered proprietors of their property in Wendel Street.
9 In June 2002, Parkside signed a contract to purchase 95 Hope Street and became the owner of the property in September that year. Due to a dispute regarding stamp duty with the State Revenue Office, Parkside did not become the registered proprietor of that land until September 2003.
10 In September 2003, Parkside complained to the plaintiffs that they had recently erected a fixed cyclone fence along the eastern boundary of the easement where it abutted Wendel Street. Parkside claimed a right to have unrestricted access to the easement of carriageway and said the plaintiff companies should remove the fence. The parties’ solicitors then exchanged correspondence for a month or two. The plaintiffs denied that Parkside had the alleged right of way and said there was no easement in its favour.
11 When Parkside sought to develop 95 Hope Street, the plaintiffs objected to Moreland Council. Ultimately in 2005, Parkside successfully took the matter to VCAT in order to overturn the Council’s refusal to grant a planning permit.
12 In about 2008, Parkside built five units on 95 Hope Street.
13 In 2009, the Council approved a subdivision of 95 Hope Street into five lots. The parent title, namely Certificates of Title 9965 Folio 381 and Volume 9989 Folio 365, became Certificate of Title Volume 11154 Folios 673-677 inclusive.
14 Later, the plaintiff companies applied to VCAT to compel Moreland Council to require Parkside to build a barrier between 95 Hope Street and the easement. In 2014, VCAT refused the plaintiffs’ application on the basis that no such barrier was shown in Parkside’s development plans.
15 During May 2014 (especially in the period 13 – 23 May), there was interaction between the parties regarding the easement and the issue of fences or barriers along the borders between the two properties. In terms of the site map (which was used at trial and a copy of which I attach as Appendix 1 to these reasons), these were the barriers between G - B, B - C, and G - F.
16 In May 2014, Jesberg brought an application for a Personal Safety Intervention Order against the sole director and company secretary of the first defendant, Pierre Farah (“Farah”). The Magistrates’ Court granted the Intervention Order in November 2014.
Has Parkside (or a predecessor in title) abandoned the easement?
17 The major issue in the case is whether Parkside, or possibly a predecessor in title to Parkside, abandoned that part of the easement which remains after the partial surrender by Muratti. There are well recognised principles relating to the abandonment of an easement at common law.
18 Abandonment is a question of intention by the owner of the dominant tenement.[1] The owner of the dominant tenement must intend “never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.”[2] Abandonment requires an intention that neither the owner of the dominant tenement nor any successor in title should make use of the easement.[3]
[1]Bookville Pty Ltd v O’Loghlen [2007] VSC 67 at [15] and affirmed unanimously by the Court of Appeal [2008] VSCA 27; Wolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017, 1023; James v Stevenson [1893] AC 162.
[2]Tehidy Minerals Ltd v Norman [1971] 2 QB 528, 553 (CA); Bookville Pty Ltd v O’Loghlen [2008] VSCA 27 at [9], [16]; Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605 at 617.
[3]Grill v Hockey (1991) 5 BPR 11,421 at 11,424 per McLelland J.
19 Mere non-use of an easement does not constitute conclusive evidence of an intention to abandon the easement.[4] It seems that almost overwhelming evidence is required to establish such an intention. As referred to in Bradbrook & Neave,[5] several cases have exemplified this point. Where the owner of property had a more convenient mode of access through his own land and chose not to use an easement for well over 20 years, the court in Ward v Ward[6] held that the right-of-way was not lost by the non-user. In the English Court of Appeal decision of Benn v Hardinge,[7] Dillon LJ noted[8] that the court could not say a right-of-way must be presumed to have been abandoned merely because it was not used, and because no one had occasion to use it, even for 175 years. Indeed, abandonment will not necessarily be implied even if an easement has never been used: Stevenson v James;[9] Boulter v Jochheim.[10] In Shelmerdine v Ringen Pty Ltd,[11] Brooking J, when delivering his judgment in the Full Court, said that the essential intention to abandon could not be inferred from non-use. He said further that a person must be aware of their rights and intend to abandon them. Marks and Hedigan JJ agreed with His Honour’s reasons.
[4]See cases referred to in Bookville Pty Ltd v O’Loghlen [2008] VSCA 27 at [12].
[5]Adrian Bradbrook and Susan MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (Lexis Nexis Butterworths Australia, 3rd Edition 2011) at para 19.13 ff.
[6](1852) 7 Exch 838; 155 ER 1189.
[7](1992) 66 P & CR 246.
[8]Ibid at 260.
[9](1889) 15 VLR 165.
[10][1921] QSR 105.
[11][1993] 1 VR 315
20 The onus of proof regarding an allegation of abandonment lies on the party alleging abandonment.[12]
[12]Macfarlane v Nairn (1903) 2 N&S 136, 139. See Bookville Pty Ltd v O’Loghlen [2008] VSCA 27 at [15] footnote 10.
21 The interplay between common law abandonment of an easement and Torrens System land has been the subject of several cases. It appears that registered easements over Torrens Law land can be abandoned.[13] However, the decisions on the issue, at least in Victoria, evidence a situation which is not altogether simple.
[13]Adrian Bradbrook and Susan MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (Lexis Nexis Butterworths Australia, 3rd Edition 2011) 19.28.
22 Riley v Penttila[14] was a case concerning a plan of subdivision where the registered proprietor created a small community in which numbers of the new lots backed onto and surrounded a common area called the “Outlook Park Reserve”. The defendants purchased a lot which adjoined a part of the reserve which was fenced off for about 40 years. It was used initially as a tennis court and later as a garden. The defendants began excavating part of the enclosed area to construct a swimming pool for their exclusive use. Other lot owners challenged the defendants’ entitlement to do this. The defendants contended that they were entitled by adverse possession to be the registered proprietor of the disputed area. Alternatively, the defendants argued that the plaintiffs had no right to enforce any claims against them because the rights claimed by the plaintiffs did not constitute an easement. Even if they did, they said that the plaintiffs had abandoned that easement due to a lengthy period of non-use.
[14][1974] VR 547.
23 In a detailed judgment, Gillard J found that there was no abandonment of the easement by the plaintiffs. His Honour addressed an argument by the defendants that, by virtue of section 73 of the Transfer of Land Act 1958 (Vic) (“Transfer of Land Act”), proof of non-user of an easement for a period of 30 years constituted sufficient evidence that the easement had been abandoned. The defendants argued that they were entitled to apply to the Registrar of Titles, who would be required to make the necessary amendments to the Register unless evidence was brought to his notice to indicate that the easement in fact had not been abandoned. Gillard J found that this argument failed for at least two reasons.
24 First, section 73 conferred the right only upon a registered proprietor of land to make an application to remove an easement where it had been abandoned or extinguished. This right to apply to remove the easement was confined to the registered proprietor of the servient tenement. The defendants were not the registered proprietor of the disputed area and accordingly, were not entitled to apply to remove the easement subsisting over that land.
25 Secondly, His Honour was of the view that the Full Court of the Victorian Supreme Court in Webster v Strong[15] had held that since a certificate of title stated that appurtenant to the land owned by the registered proprietor was a right of carriageway which had not been used as such for 40 years, the statement in the certificate of title was nevertheless conclusive evidence that the registered proprietor, despite such non-user, was entitled to a right of carriageway. Gillard J said that the reasoning in Webster v Strong[16] applied equally to the existing provisions of the Transfer of Land Act notwithstanding a change in the form of the legislation since the time Webster v Strong[17] was decided.
[15][1926] VLR 509.
[16]Ibid.
[17]Ibid.
26 His Honour noted that when the various instruments of transfer from the original owner of the land were registered, the creations of easement in each instrument over the fee simple of the reserve were also registered or notified on the certificate of title and thereby created encumbrances upon and rights in, to, upon or in respect of the reserve. These statutory rights were made expressly “subject to the Act” and an easement thus created by a registration could only be extinguished by the application of the statutory provisions of the Act to be found, for example, in section 62 or 73 of the Transfer of Land Act.
27 Gillard J stated his position as follows:
“The easement is notified as appurtenant to an estate in land described in a certificate of title. The certificate of title is conclusive evidence that the person named therein is the proprietor of such estate. The encumbrance of such easement on the servient tenement is created by the registration of the instrument of transfer and remains as an encumbrance on that title until it is removed pursuant to the Act by a successful application to the Registrar under s73. Until this is done by the Registrar, then, in my opinion, no abandonment in fact will affect the conclusive evidence to be found in the certificate of title that the person named thereon is the owner of the estate in the dominant tenement to which the easement is stated therein to be appurtenant. In my opinion, that is the true effect of the decision in Webster v Strong.”
28 In the result, His Honour found that the defendants’ claim to exclusive possession and ownership by adverse possession was unjustified and the allegation that the plaintiffs’ rights over the easement had been abandoned was equally erroneous.
29 Riley v Penttila[18] was the subject of some consideration by Tadgell J in his decision of Wolfe v Freijahs’ Holdings Pty Ltd.[19] The issue in Wolfe’s case was whether a registered easement of a carriageway pertinent to each of two contiguous parcels of Torrens title land should remain registered, or whether it should be removed from the Register pursuant to section 73 of the Transfer of Land Act on the ground that it had been abandoned. The company was the registered proprietor of two dominant tenements. It issued proceedings against Mrs Wolfe, the registered proprietor of the servient tenement, seeking declarations that the company was entitled to enjoy the easement in question and that Mrs Wolfe was not entitled to have the easement removed as an encumbrance upon her title. For her part, Mrs Wolfe brought an application against the company seeking removal, pursuant to section 12(3) of the Transfer of Land Act, of a caveat lodged by the company pursuant to section 73(4) forbidding the removal of the easement by the Registrar.
[18][1974] VR 547
[19][1988] VR 1017
30 In 1939, Mrs Wolfe became, and remained at the time of the hearing in 1988, the registered proprietor of the servient tenement subject to the easement of carriageway. A director of the plaintiff company and his wife had purchased the dominant tenements in 1976 and later transferred ownership of the land to a family company. From the time she commenced occupation of her property in about 1939 until early 1986, Mrs Wolfe and her family had exclusive use of the land constituting the claimed easement because she had fenced it off. During that period of about 45 years, the proprietors of the dominant tenements had not used, asked to use, or attempted to use the enclosed land (subject to one exception in 1962 when the proprietor of the dominant tenement asked permission from Mrs Wolfe to put a gate in part of the fence).
31 In 1986, the company, which had built a shop on its land and wanted to use the easement, asked Mrs Wolfe to move the fence so that it no longer enclosed the whole of the easement area but left open the company’s access to the easement. Mrs Wolfe refused and said that all rights of carriageway that may have existed had been abandoned through the effluxion of time.
32 Tadgell J said that, in his opinion, section 73 of the Transfer of Land Act was essentially a procedural provision, whereas section 42(1) was designed to confer or recognise substantive rights. Accordingly, the two were not capable of conflicting with each other. Further, he said that section 73 was not designed to create an exception to section 42(1). Rather, section 73 was intended to enable the registered proprietor of an estate or interest in land that appeared from the Register to be subject to an easement to obtain an amendment of the Register to remove the easement when it had been wholly or partly abandoned or extinguished.
33 His Honour considered that the effect of section 73(3) was accurately stated in Voumard, The Sale of Land, 4th Edition[20] where the author said that:
“The mere non-use for the specified period, without any evidence of actual intention on the part of the dominant owner to abandon his rights, is to be regarded as prima facie evidence of an intention to abandon; with the result that the Registrar will be required to make the appropriate amendments to the Register Book unless there is brought to his notice (either by the owner of the dominant tenement or otherwise) evidence which indicates that the easement has not in fact been abandoned or extinguished.”
[20]At page 437.
34 Tadgell J said that he could not see how the Registrar, in making his inquiry under section 73, could ignore the company’s contention that the easement had not been abandoned. In reaching this conclusion, he relied upon his construction of section 73 and did not rely directly upon section 42(1) of the Act or upon the decisions of Webster v Strong and Riley v Pentilla. His Honour said that neither of these cases was an authority upon the operation and effect of section 73. However, he said that each of those cases:[21]
“… provides further and more direct support for the conclusion I have reached. Each stands for the proposition that an easement notified on a Certificate of Title remains enforceable by the proprietor of the dominant tenement even though at common law it would be taken to have been abandoned.”
In those circumstances, His Honour said that the easement would therefore remain enforceable by the proprietor of the dominant tenement until it was removed pursuant to section 73.
[21] [1988] VR 1017, 1026.
35 His Honour noted that the authors of Bradbrook & Neave’s suggested that Riley v Penttila[22] decided that registered easement over Torrens title land in Victoria cannot be abandoned. His Honour said that this was true only in a qualified sense for section 73 itself expressly contemplated that a registered easement might be abandoned according to common law principles. However, His Honour said that when one seeks to find the consequences of an abandonment, problems might arise. He said it was perhaps more accurate to say that the abandonment by the registered proprietor of a dominant tenement or by his predecessors in title will not deprive him of the right to rely on the registered easement unless and until it is removed from the Register pursuant to section 73, or perhaps, unless he has put it out of his power to rely upon it as against the proprietor of the servient tenement.
[22][1974] VR 547.
36 Neither of the parties in the case before me referred in any detail to the decisions in Riley v Penttila[23] and Wolfe v Freijahs’ Holdings Pty Ltd.[24] Counsel in this case focused their attention primarily on the decision of Kaye J in Bookville Pty Ltd v O’Loghlen[25] and the two decisions by O’Bryan J in Hale v Dobbie[26] and Symons v McNicoll.[27] The plaintiff companies contended that I should follow the approach taken in the decisions of O’Bryan J whereas the first defendant said that the more recent and closely argued decision of Kaye J, which rejected the approach taken by O’Bryan J, represented a more appropriate approach to follow.
[23][1974] VR 547.
[24][1988] VR 1017, 1026.
[25][2007] VSC 67 (20 March 2007).
[26](Unreported) 22 April 1994.
[27](Unreported) 15 May 1998.
37 This case is not one in which I need to resolve the debate as to the relative merits of the views of Kaye J and others regarding the relationship between the abandonment of an easement at common law and indefeasibility of a registered easement under the Transfer of Land Act. I favour, on balance, that the better view is that:
(a)even if a predecessor in title abandons an easement at common law, such abandonment does not override the indefeasibility of a registered easement.
(b)because under the Transfer of Land Act the registered proprietor derives title from registration and not common law, the successor in title can still be entitled to the easement, notwithstanding that a predecessor abandoned it, provided the easement remains on title.
(c)the indefeasibility of title concept does not deprive section 73 of effective operation in every case in which the owner of the dominant tenement contests removal of the easement. Rather, the registered proprietor of the servient tenement who seeks to apply for the removal of an easement which has been abandoned by the registered proprietor of the dominant tenement must apply while the owner of the dominant tenement still remains the owner and before he transfers his interest to a new registered proprietor. I do not accept the plaintiffs’ contention that there is no relevant difference between general law land and Torrens law land in dealing with the removal of an easement for abandonment of non-use.
38 However, I do not need to reach a concluded view on this issue because, on the facts, the plaintiff companies have not discharged their onus and satisfied me that:
·in the period since about 1968 any predecessor in title of Parkside abandoned the easement through non-use.
·Parkside itself has abandoned the easement.
39 In endeavouring to prove abandonment of the easement by non-use, the plaintiff companies rely primarily on the inability to exit the easement via Wendel Street. The factual problem here is that, on the evidence, it is simply not clear that the Wendel Street border of the easement was fenced or sealed off for approximately 45 years in such a way that no access was possible.
40 Even assuming there was no access from the easement to Wendel Street, there remain other obstacles. Firstly, the plaintiff companies seem to equate non-use with an intention to forever forego use. However, the case law establishes how difficult it is to prove abandonment, notwithstanding what might appear to a layman to be a strong case. In practical terms, the view traditionally adopted by courts is that, generally speaking and, subject to clear evidence to the contrary, owners of property do not normally intend to divest themselves of an easement when it is not to their advantage to do so.
41 Secondly, there is no evidence that any of the predecessors in title to Parkside had the requisite intention to abandon. With each transfer from one registered proprietor to the next, the easement (or part thereof) remained on title. Gatic (Australia) Pty Ltd intended to keep the easement by creating Certificate of Title Volume 9965 Folio 381 and the easement had been registered on the parent title. Muratti surrendered part of the easement, but not the whole. His conduct should be construed as asserting a claim to the balance of the easement. In short, there was no sufficient evidence of non-use by predecessors in title amounting to an intention to abandon the easement.
42 The conduct of Parkside as the current registered proprietor of 95 Hope Street is also relevant. The plaintiff companies claim that Parkside’s application for a planning permit implicitly evidenced an intention to never use the easement again but to forego it. I do not accept this argument. The planning application submitted at the particular time did refer to the deletion of the rear access which the easement gave onto Wendel Street. But Parkside was adopting a staged approach to the development of its land and the statement about access was not necessarily permanent. It could be changed by a later application. The plans still provided for the easement and the plaintiffs unsuccessfully applied to VCAT to compel the construction of a barrier, be it solid or vegetation, at point G – F on the plan, being the area where the easement meets 95 Hope Street.
43 Apart from these matters, other aspects of the evidence militate against any finding that Parkside intended to permanently abandon the easement. In about December 2002, Parkside investigated the possibility of obtaining a crossover permit between the easement and Wendel Street. There were significant dealings between Parkside and the plaintiff companies in 2003 and 2014 in connection with Parkside’s alleged rights to the easement. I find that Parkside used the easement during its ownership of 95 Hope Street. Some usage was consistent with the purpose and terms of the easement, some was not. At various times between 2008 and 2014, Parkside used the easement for storage of building materials and car parking. Also, Parkside took active steps to remove a partially completed paling fence which, if completed, would have prevented access to the easement from 95 Hope Street. Further, Parkside took down a temporary fence (running from G to B) which was encroaching onto the easement. In addition, Farah went onto the easement about five times each year to deal with materials stored there or rubbish left there by tenants of 95 Hope Street.
44 These various actions, even those which stretch beyond the strict entitlements of the easement in favour of the dominant tenement, were inconsistent with an intention for Parkside to forever abandon its rights over the easement.
Has the easement been overused?
45 Another argument put by the plaintiffs was that, because of the subdivision of the land at 95 Hope Street, it had given rise to an overuse of the easement to the point where it was extinguished. I accept that this outcome is a theoretical possibility. However, the most recent example of such an outcome is Ray v Fairway Motors (Barnstaple) Limited.[28] That case involved the overburden of a wall the subject of an easement of support by the dominant tenement to the extent that the wall was no longer structurally sound and able to perform its role. The main issue was determining the party responsible for reinstating the wall and making it sound again. The English Court of Appeal found that an easement can be extinguished where the mode of use is altered in such a way as to prejudice the interests of the servient tenement and restrict the use to which it can be put. The pre-eminent Australian textbook on easements, Bradbrook & Neave’s Easements and Restrictive Covenants, says that Ray’s case is the most recent illustration of the principle.[29] It also says that there is no modern case in Australia where an increase in the burden imposed on the servient tenement has led a court to hold that the easement has been extinguished. Thus it appears that the finding of extinguishment for overburdening or overusing is very unusual.
[28](1968) 20 P&CR 261.
[29]At paragraph 19.35.
46 The more normal remedy, when circumstances change and the usage becomes significantly more burdensome, is to award the proprietors of the servient tenement an injunction against the proprietor of the dominant tenement restraining them from using the easement in an excessive manner.
47 Cases on the issue reveal that the court is normally not satisfied that the extent of increase in the use or alleged overburden is such as to warrant extinguishment. It is more likely to frame the issue in terms of excessive user rather than overburden or extinguishment.[30]
[30]Jelbert v Davis [1968] 1 All ER 1182.
48 Because the plaintiffs in this case do not allege that there has been an actual increase in the burden of the easement resulting from the subdivision, they appear to rely on the potential or hypothetical burden which might result if the occupants of the subdivided lots at 95 Hope Street use the easement. This creates two problems for the plaintiffs. Firstly, the High Court decision in Gallagher v Rainbow[31] supports the view that an easement which is attached to the dominant tenement for the benefit of that land continues to apply for the benefit of the land after subdivision. To the extent that any part of the dominant tenement can benefit from the easement, the easement will be enforceable for that part even if it is subject to a later subdivision unless the easement on a proper construction benefits only the dominant tenement in its original form.
[31](1994) 179 CLR 624.
49 In the present case, I do not read the easement as precluding 95 Hope Street from having the benefit of the easement if the land is subdivided. The majority in Gallagher’s case endorsed the proposition in Gale, A Treatise on the Law of Easements, that:[32]
“If a severance of the dominant tenement takes place, all its easements which are attached to the tenement and not to the person of the owner will attach to the severed portions”
[32](Sweet and Maxwell, 7th edition)
Other Matters
50 Secondly, in my view, a party complaining of overburden or excessive use must establish its claims as a matter of fact on the evidence. The plaintiffs did not do this. They cannot show that the actual use granted originally has increased. Nor can they show that the mode of use has changed (or is likely to change any time soon). The plaintiffs did not adduce evidence showing how any increased use of the easement would affect them or the usage of their own land.
51 The parties expended time and energy on several matters which ultimately proved not to be significant to the result. These included the credibility of various witnesses, the precise state of the fencing at or along the easement area at various times in the last 40 years or thereabouts, the conversation between Jesberg and Robert Jamieson and issue estoppel arising from the Magistrates’ Court case. However, in deference to the efforts of the parties, I shall say something about these matters.
Credit of witnesses
52 The credibility issues were not critical because there was available enough objective evidence, that is, evidence not wholly or substantially dependent upon the recollection of a witness, to decide the case.
53 Ms Jesberg presented in court as a somewhat nervous person who, I could imagine, is relatively easily upset by the longstanding tension which has existed with respect to the easement and 95 Hope Street. While I do not regard her as deliberately dishonest, her evidence was confusing and inconsistent in parts. Perhaps it was unfortunate for her that she had given evidence under oath on other occasions and there were variations in her version of events. She acknowledged that due to being nervous, she might change her story at different times when put under pressure. As a result of the variable evidence she gave, for example, about the state of the fencing at B – C in and after the Melbourne Cup weekend in 2002, I found her evidence not wholly convincing or reliable.
54 While the evidence of the husband and wife, Farah and Ms Natalina Monichino (“Monichino”), was credible on some matters, this did not apply to all aspects of their evidence. Farah was careful to give a version of events which was most favourable to him and the interests of Parkside. This involved, for example, omitting to include in his description of events, aspects of the evidence which supported the plaintiffs’ case or cast their witnesses in a better light. If his demeanour and manner giving evidence are any guide, then I could well imagine Farah could be a difficult neighbour – aggressive, assertive and prone to get “a bit hot under the collar” (as he acknowledged he did while giving evidence).
55 Ms Monichino presented as a calculating business woman who was confident in her skills as a letter writer and advocate for her cause. She was not afraid to embellish her case with statements which were exaggerated or untrue. She and her husband make a formidable, if not particularly trustworthy, team.
The fencing along Wendel Street
56 As part of its case regarding the alleged abandonment of the easement, the plaintiffs argued that:
· between about 1968 and September 2002 there was a fence, not a gate, across the easement at B – C.
· Farah replaced that fence with a gate across B – C in about November 2002.
· there was a paling fence between G – F when the first defendant bought the property in September 2002.
· Jamieson’s evidence supports the proposition that the easement was not used between 1970 and 2002.
57 The first point relies significantly upon the evidence of two licensed surveyors, John McCaffrey (“McCaffrey”) and Erik Birzulis (“Birzulis”). Their evidence depended upon an examination of aerial photos and two surveys conducted in 1982 and 1988 respectively. I had some reservations about whether the evidence interpreting the aerial photos was properly described as expert evidence but Parkside took no objection to the evidence.
58 McCaffrey acknowledged what I regarded as obvious, namely, from the aerial photos it was not possible to tell whether any barrier across the easement on Wendel Street at B – C was a fence or a gate. This was potentially significant because the gate could open and thereby give ready access to the easement. To the extent that there was uncertainty, the plaintiffs failed to discharge their onus. Given the relatively low quality of the photos relied upon and the shadows cast in some photos, I could not draw any conclusion based simply upon the photos about the details of the barrier.
59 Both McCaffrey and Birzulis agreed that there was no specific requirement that surveys of the kind relied upon necessarily required that gates in any barrier be identified. They also agreed that the absence of a marked gate did not mean that, in fact, there was no gate. This concession was supported by those aerial photos which showed that 95 Hope Street was not landlocked in the way that the survey suggested. It was clear from the photos that vehicles accessed the property from Hope Street.
The Jamieson/Jesberg conversation
60 By notice dated 8 February 2016, the plaintiffs advised Parkside of their intention to adduce evidence of a previous representation pursuant to section 67 of the Evidence Act (Vic) 2008 (“Evidence Act”). The evidence related to statements made by Jamieson to Jesberg on 20 November 2003. Jamieson was a director of Gatic (Australia) Pty Ltd, the company which was the previous registered proprietor of the land at 13-23 Wendel Street, Brunswick and 95 Hope Street. The substance of the conversation between Jamieson and Jesberg was to the effect that:
(a)he resided at 10 Learmonth Street, Heidelberg in Victoria.
(b)he was the principal executive officer of Gatic (Australia) Pty Ltd for the period 24 November 1936 (sic) to 10 July 1991 and a director of the company from 21 July 1970 to 22 August 1991.
(c)the land owned by the plaintiffs and the land subject to the disputed right of carriage way easement was continuously fenced.[33]
(d)the green fence in front of the easement area on Wendel Street at no point had gate access.
(e)at no time was the easement ever used as a carriageway or a footway to access Wendel Street.
[33]The Notice which the plaintiffs served does not nominate a specific period of time during which there was said to be continuous fencing along the plaintiffs’ land and across the easement in Wendel Street.
61 According to the notice, Jesberg attempted to contact Jamieson on 6 February 2016 to obtain his attendance at court to provide oral evidence of the above matters. Jesberg spoke by telephone to a woman who informed her that she was Jamieson’s wife. The lady told Jesberg that Jamieson was in very poor health, that he could not walk and was diagnosed with Alzheimer’s disease. She said that due to Jamieson’s medical condition and his loss of memory, Jamieson was not in a position to attend court and give evidence.
62 At trial, after hearing argument, I ruled that Jamieson’s evidence was inadmissible. In so ruling, I said that this was not intended to preclude the plaintiffs from making some other application later in the trial if they saw fit.
63 Subsequently, the plaintiffs sought to interpose a witness into the case, Dr Robert Lees (“Dr Lees”), the general practitioner treating Jamieson. When Dr Lees gave evidence, during the course of the first defendant presenting its case, he said that he had a patient called Robert Jamieson. Mr Jamieson’s birthday was 19 August 1927. He said Mr Jamieson suffered from Alzheimer’s disease and prostate cancer. He said he had been treating him for two years and that he had suffered from severe Alzheimer’s throughout that time. According to the medical records which Dr Lees held, Mr Jamieson was listed as having memory impairment from around 2002. Dr Lees agreed that quite often, people with such an impairment suffered from it for some time before it was diagnosed.
64 The plaintiffs contend that I should admit the evidence of the conversation between Jamieson and Jesberg. They say that Jamieson is not available to give evidence within section 63 of the Evidence Act[34] or alternatively, it is not reasonably practical to call him within section 64 of the Evidence Act. I accept that having regard to his age and medical condition, it is not practical to call him. Given his mental condition, there would be little utility in doing so.
[34]Evidence Act 2008 (Vic).
65 Parkside contended that the evidence should be excluded or, if admitted, be given little or no weight. They advanced several reasons for this position. First, the plaintiffs had failed to show that the man named Jamieson whom Jesberg spoke to was the same Mr Jamieson who was Dr Lees’ patient. Secondly, Jamieson was likely to have had an impaired memory at the time of the alleged conversation with Jesberg and that would affect the reliability of his evidence. Thirdly, Jesberg’s own recollection was suspect given her credit and the fact that she was giving evidence in 2016 about an alleged conversation which took place in 2003. Fourthly, the evidence of the conversation was itself problematic. According to Jesberg, Jamieson claimed to have been principal executive officer of the company from 1936 – if he had been born in 1927, this was highly unlikely. Also, Jamieson sought to give evidence about the property until 2002 even though Gatic (Australia) Pty Ltd ceased its ownership of the land in 1989. Parkside argued that Jesberg should not be believed when she said that Jamieson knew about the property from driving past it when this explanation was not offered either in the affidavit she swore in 2014 referring to Jamieson, or in her evidence-in-chief at trial.
66 Notwithstanding the criticisms Parkside made of the evidence, I consider that it should be admitted. However, in my view, I should not attribute more than minimal weight to it. This is partly because Jamieson’s mental health was quite possibly compromised at the time of the conversation, partly because the evidence itself and the circumstances in which Jesberg explained the reference to the period after 1989 is not altogether convincing, and partly because I have reservations about Jesberg’s recollection of events generally. Further, I am concerned that Parkside had no opportunity to challenge the substance of the evidence.
67 Given my findings on the issue of abandonment, the admissibility or otherwise of the Jamieson evidence is not determinative of the case. I also note, if it be relevant, that the evidence of the conversation with Jamieson provided no factual basis to argue that Gatic (Australia) Pty Ltd intended to relinquish forever the right to use the easement.
Issue estoppel
68 The plaintiffs contend that by virtue of the decision given in the Magistrates’ Court at the hearing of the intervention order application, I am bound by certain factual findings said to have been made in that case. The plaintiffs argue that since there has been a judicial determination on an issue of fact, that disposes of the issue – thereafter it cannot be raised between the same parties or their privies. This outcome is based largely on public policy to promote the finality of litigation and to remove the risk of different courts making inconsistent factual findings.
69 The plaintiffs in final submissions identified the following matters as established by the decision in the Magistrates’ Court:
(a) insulation material was thrown onto the plaintiffs’ land from Farah or Joe.[35]
[35]Joe was a person seen on the video evidence tendered at court. Farah says he was only a tenant but the plaintiffs allege he was Farah’s agent.
(b) Joe was Farah’s agent and not just a mere tenant of one of the units at 95 Hope Street.
(c) Farah’s actions on 13 May 2014 in destroying or removing the wooden fence from G - F constituted property damage.
(d) Farah’s actions on 23 May 2014 dismantling the wire fence from B – G constituted property damage.
70 The plaintiffs submitted that it was for the first defendant, and not the plaintiffs, to plead res judicata. The plaintiffs contended that they did not need to plead the facts which were said to bind this court because they did not go to any cause of action in the case, and the County Court proceeding was issued before the findings were made in the Magistrates’ Court. It was said that the plaintiffs could not plead facts which were not yet known.
71 Parkside objects to the tender of the purported Magistrates’ Court transcript and says that the plaintiffs should not be allowed to use it to prove facts said to have been found by the Magistrates’ Court so as to estop Parkside from contending for different facts and this court from making different findings. Parkside submits that the accuracy of the transcript is not proven because no details have been given in the evidence about the steps taken to obtain the tape from the Magistrates’ Court and to produce the typed version of proceedings. Further, there are said to be many errors in the transcript and parts of the judgment were entirely omitted. Finally, Parkside complains that the plaintiffs failed to plead the specific matters said to have been decided which Parkside could not challenge. The position was also exacerbated by the plaintiffs not providing a copy of the transcript to the first defendant until a day or two before the trial commenced in this court.
72 The prime purpose of the plaintiffs in seeking to tender the transcript was to provide a factual basis for the estoppel argument it sought to advance against Parkside. In circumstances where the plaintiffs did not plead a case of estoppel or set out in their claim those facts which they said Parkside could not challenge due to the findings made in the Magistrates’ Court, I consider that I should not allow the tender. It seems to me that such a matter should have been pleaded so that the first defendant had appropriate notice of the case which it had to meet. To the extent that the plaintiffs contended that commentary in Williams Civil Procedure Victoria says or implies otherwise, I respectfully disagree. I reject as fanciful the plaintiffs’ suggestion that somehow the first defendant should plead the issue. Such a contention is nonsensical. If the plaintiffs seek to argue that there are certain facts which have already been definitively determined by the Magistrates’ Court and those facts cannot be challenged by Parkside, the onus in my view rests squarely upon the plaintiffs to plead those facts and the basis upon which it is said the first defendant cannot challenge them.
73 A comparison with the approach taken by Parkside is instructive. In the Amended Defence and Counterclaim, the first defendant alleged an estoppel against the plaintiffs and set out the facts underlying the plea. The plaintiffs were put on notice that the first defendant contended that the plaintiffs were estopped from asserting that Parkside:
(a) was obliged by its planning permits to construct a wall between the subdivided land and the easement; and
(b) had evinced an intention to do so.
Interference with the Easement and Trespass
74 There are issues to be dealt with regarding allegations made by both parties.
Plaintiffs’ claims
75 The plaintiffs claim that Parkside interfered with the easement and/or trespassed by:
(a) storing bricks and piping on the easement;
(b) remaining on the easement without authority to do so in the sense of loitering;
(c) damaging and dismantling on 13 May 2014 the timber fence under construction between G – F; and
(d) dismantling on 23 May 2014 the temporary fence between G – B and stacking the fence on the plaintiffs’ land.
Parkside admits the allegations of storing materials and agrees that loitering without authority on the easement would constitute trespass if it took place (which it denies). Parkside argues that even if both forms of trespass were established, the plaintiffs allege no resultant loss or damage and seek no damages. However, the plaintiffs do seek an injunction to prohibit both the storage of goods on the easement and loitering on the easement.
76 I accept that storing on the easement building materials or other objects, whether it be cars or rubbish bins, is an interference with the easement.
77 The position with loitering is a little less clear. The easement allows the registered proprietor of the dominant tenement to “go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals, carts or other carriages, into or out of and from the said land or any part thereof, through over and along all [of the servient tenement].” I read the easement as providing a way or means of access for the registered proprietor of the dominant tenement. For this reason, I do not consider the grant was intended to confer upon the proprietor of that land a right to use the easement for other purposes. While the easement permits the proprietor of the dominant tenement to pass and repass into and from the dominant tenement by going through over or along the servient tenement, the land over which the easement operates remains the land of the plaintiffs. Thus, the use the first defendant can make of the land is limited and does not include such things as wandering about on the easement for purposes unrelated to the grant.
78 As to the matters in paragraph 75 (c) and (d), Parkside admits the conduct alleged but maintains that it was justified because the plaintiffs were infringing on the easement and affecting Parkside’s rights. I deal with the issue of abatement below.
79 While insulation material might have been thrown onto the plaintiffs' land, it was not the subject of any specific plea of trespass nor was it clear precisely who threw the material onto the plaintiffs' land. The plaintiffs have not made any claim to relief on this ground.
Parkside’s claims
80 Parkside claimed that the plaintiffs had not acted lawfully in several respects: they had sought to construct a fence between G – F; after Farah made the gate on Wendel Street at B – C, the plaintiffs removed it and replaced it with a fence which prevented anyone from using the eastern end of the easement as a point of ingress or egress; and the plaintiffs located a temporary fence along G – B at least partly on the easement. These actions were effectively undisputed by the plaintiffs. Nor was it contested that the plaintiffs, through their agents or contractors, made a hole in Parkside’s wall when constructing the timber fence at G – F. The first defendant claims only nominal damages in relation to this conduct.
81 To the extent that the plaintiffs sought to erect fences which might have restricted the ability of Parkside to use the easement, there are several matters to note. The owner of the servient tenement is allowed to fence a right of way to secure his property along the boundary. But it is important that the fence not interfere with the reasonable use of the right of way by the owner of the dominant tenement. So, for example, if there were a fence, it might be necessary to include one or more gates or to give the owner of the dominant tenement the combination to a lock so that the owner of the dominant tenement had the necessary means to access and use the easement.[36] On the evidence, there was no suggestion that the paling fence at G – F included, or was to include, a gate.
[36]See the discussion in Bradbrook & Neave at para 6.31 – 6.35.
82 Where someone interferes with a party’s right to an easement, the affected party can sometimes use the self-help remedy of abatement to address the situation. Essentially, this enables the owner of the dominant tenement to enter the servient tenement and put an end to the interference. It derives from the principle that the person injured by a private nuisance may abate it.[37] The remedy was explained by Lord Cranworth in Tapling v Jones:[38]
“Where a person has wrongfully obstructed another in the enjoyment of an easement, as, for instance, by building a wall across a path over which there is a right of way, public or private, any person so unlawfully obstructed may remove the obstruction; and if any damage thereby arises to him who wrongfully set it up, he has no right to complain. His own wrongful act justified what would otherwise have been a trespass. But this depends entirely on the circumstance that the act of erecting the wall was a wrongful act.”
[37]Perry v Fitzhowe (1846) 8 QB 757, 775.
[38](1865) 11 HLC 290, 311.
83 However, it is important to bear carefully in mind some general guidelines:[39]
[39]See the discussion in Bradbrook & Neave at para 18.5 and Gaunt, Gale on Easements, (19th edition) at paragraph 14.04.
· although there are ample cases where the courts have accepted that abatement is justified, the law commonly prefers recourse to the courts over self-help;
· interference with the property of wrongdoer in order to abate a nuisance is justified only where the court considers the interference to be positively necessary;
· where there are alternate methods of abating a nuisance the least mischievous method must be used;
· even where the owner of the dominant tenement is justified in interfering with the property of a wrongdoer, abatement should not be used if the public or an innocent third party would thereby suffer harm;
· any action undertaken by way of abatement must not be excessive but be limited to what is necessary
84 In this case, where there is a long and difficult history of dealings between the parties, it seems to me far preferable that the parties should bring their claims and counterclaims before a court rather than take matters into their own hands. Notwithstanding this, I consider that Parkside was entitled to dismantle the paling fence along G – F. That fence, if completed, would have created a complete barrier to Parkside’s access to the easement. Even though, by reason of:
· the wire fence across B – C on Wendel Street;
· the difference in levels between the easement and the footpath and road at Wendel Street;
· the absence of a cross-over between the easement and Wendel Street;
· the need for, and failure to obtain, council approval for a cross-over
Parkside could not use the easement in the manner intended by the grant, I do not think Parkside was obliged to suffer the construction of a further barrier to use. It was appropriate to abate because the situation was urgent and an immediate remedy was needed to prevent the completion of the paling fence.
85 As to the temporary fence at G – B, in my view, Parkside was not entitled to take self-help measures to move that fence. I have listed in the preceding paragraph the factors which prevented Parkside from making full use of the easement. In the circumstances, a minor incursion of the temporary fence onto the easement did not constitute a substantial interference with the enjoyment of the easement. The easement is 3.05 metres across. Even allowing for the intrusion of the fence onto the easement, there was ample room for a person to walk or take a bike along the easement (assuming a person could exit at Wendel Street). Unless the interference is substantial, Parkside is not entitled to abate the alleged nuisance.[40] To the extent that Parkside might claim it could not fully use the easement because a car could not pass along it, I say that without Council approval for the cross-over, the claim has no substance.
[40]See Bradbrook & Neave, para 6.30 – 6.31 and cases cited therein.
Remedies
86 The plaintiffs seek injunctive orders by way of relief. Parkside accepts an injunction prohibiting storage of materials on the easement is appropriate but says no other relief is warranted.
Legal principles
87 The rationale underpinning the grant of an injunction in cases such as this, where the plaintiffs allege no loss and do not seek damages for the trespass, is to prevent the plaintiff from being forced to bring similar actions in the future in respect of future interference with the land the subject of the easement.
88 Traditionally, equity will grant an injunction in its auxiliary jurisdiction to:
(a) prevent multiplicity of actions; and
(b) restrain the threatened infringement, or the continued or repeated infringement, of some legal right.
The injunctions sought by the plaintiffs in this case fall under the latter category.
89 In order to attract the equitable jurisdiction to grant an injunction in this way, a plaintiff must show:[41]
[41]Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, (Lexis Nexis Butterworths, 5th ed, 2002) at [21-025] – [21-040].
(a) it has a legal right;
(b) that the legal right sought to be protected is of a proprietary nature;
(c) some actual or threatened infringement of the right; and
(d) that damages are demonstrated not to be an adequate remedy.
90 It is well accepted that where a plaintiff has established the invasion of a common law right, and there is ground for believing that without an injunction there is likely to be a repetition of the wrong, the plaintiff is, in the absence of special circumstances, entitled to an injunction against such repetition.[42]
[42]Beswicke v Alner [1926] VLR 72 at 76-77.
91 Generally speaking, the law has developed a tendency not to regard damages as constituting an adequate remedy for prospective injury to existing property of the plaintiff.[43] This is so even if the expected injury is relatively minor or trivial.[44] The fact that the plaintiff is entitled to no more than nominal damages at law does not necessarily lead to the refusal of an injunction.[45] Spry states that it is sometimes precisely in cases of this kind in which an injunction may be needed most – to prevent a plaintiff from otherwise having to become involved in a multiplicity of actions where in each case, the plaintiff would be able to recover only small or nominal damages. While there is some judicial authority that the triviality of the breach may cause a court not to issue an injunction,[46] generally, the scale of the breach does not affect the court’s discretion.
Are the plaintiffs entitled to an injunction?
[43]Spry, The Principles of Equitable Remedies, (Thomson Reuters, 9th ed, 2014), 397; see also Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch. 149 at 181.
[44]Patel v W.H. Smith (Eziot) Ltd [1987] 1 WLR 853.
[45]Spry, The Principles of Equitable Remedies, (Thomson Reuters, 9th ed, 2014) at 411.
[46]Wood v Sutclifffe (1851) 2 Smin (N.S) 163 at 166, per Kindersley V.-C stating that he could not agree “that, on the mere fact of the plaintiffs having the abstract right, a court of equity will, as a matter of course, on that right being established at law, grant an injunction if the right be infringed ever so minutely”.
92 In applying the criteria set out:
(a) the plaintiffs plainly have a legal right to the easement land;
(b) this legal right is proprietary in nature;
(c) the first defendant has admitted trespass by storage; and
(d) in accordance with the authorities, damages are inadequate.
93 Accordingly, the plaintiffs are entitled to an injunction to prohibit storage of materials on the easement land.
94 With respect to the loitering issue, given the history of the matter, the tensions between the parties and the natures of the parties, I find that the position is finely balanced. Ultimately, I do not consider that the evidence warrants an injunction at this point. In so deciding, I would not wish to encourage the first defendant, through its agents Farah and Monichino or otherwise, to act in a provocative manner inconsistent with the terms of the grant. Indeed, if any of them were to conduct themselves improperly, I would be readily inclined, subject to hearing the evidence and argument, to grant an injunction against them.[47]
[47]I might well also order indemnity costs given the warning provided by this judgment.
95 In relation to the first defendant’s claim against the plaintiffs for nominal damages, I award it $25.
Conclusion
96 In summary, I have found that:
(a) Parkside has not abandoned the easement or overburdened the easement;
(b) Parkside was not entitled to store building materials or other objects on the easement;
(c) Parkside was entitled to dismantle the paling fence at G – F but not to remove the temporary fence at G – B and place it on the plaintiffs’ land;
(d) Parkside is not entitled to use the easement for purposes other than the grant;
(e) The plaintiffs were not entitled to put a hole in Parkside’s wall and Parkside is entitled to damages of $25; and
(f) The plaintiffs are entitled to an injunction prohibiting the use of the easement as a storage site.
97 I will hear the parties on the final form of orders.
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