Sheppard v Smith

In *Sheppard v Smith*, the New South Wales Court of Appeal considered an application to extinguish a right of way granted in 1885. The applicants, the owners of the servient tenement, sought to extinguish the easement under section 89(1) of the *Conveyancing Act 1919* (NSW), arguing it was obsolete and had been abandoned. The easement was granted in unlimited terms, with purposes including the removal of "nightsoil," and had fallen into disuse after the connection of sewers in 1908.

The Court was required to determine whether the primary judge erred in finding that the easement should not be deemed obsolete. It also had to consider whether the owners of the dominant tenement had demonstrated an intention to abandon the easement, given the passage of time, the indefeasibility of their title since 2010, and various physical impediments to the right of way that had been erected on the servient tenement. Finally, the Court had to assess whether the extinguishment of the easement would cause substantial injury to the owners of the dominant tenement.

The Court of Appeal upheld the primary judge's findings. It reasoned that the initial purpose of the easement, while including nightsoil removal, was not limited to that purpose, and therefore its obsolescence due to sewer connection was not determinative. Regarding abandonment, the Court held that mere non-user and the erection of non-permanent obstacles were insufficient to infer an intention to abandon the easement, particularly when the dominant tenement owners had taken steps to include the right of way on their title. The Court also found that the continued existence of the easement would secure a practical benefit to the dominant tenement owners, meaning its extinguishment would cause substantial injury.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs.