Sorbara v Prochilo

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2018 00778

JOSEPH SORBARA & GAIL ISOBEL SORBARA	Plaintiffs
v
TERESA PROCHILO (in her own capacity and as legal personal representative of Giuseppe Prochilo deceased)	Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	23–6, 29–30 November, 1–2, 6–9, 13, 16 December 2021
DATE OF JUDGMENT:	25 March 2022
CASE MAY BE CITED AS:	Sorbara v Prochilo
MEDIUM NEUTRAL CITATION:	[2022] VSC 146

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PROPERTY – Easements – Easement by prescription arising from doctrine of lost modern grant – Where fruit farmer claims easement over neighbouring farming property for use as headland to turn machinery – Where fruit farmer claims easement over neighbouring farming property for use as carriageway and to tend crop – Knowledge of owner of servient tenement of acts of use – Actual and constructive knowledge – Presumption of knowledge of open use – Evidential onus – Whether use accommodates dominant tenement - Whether lease or licence by landholder to landholder’s company interrupted use – Whether easement to tend crops known to the law – Whether survey of land interrupted use – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Lloyd and Mr A Berger	Kim Bainbridge Legal Service Pty Ltd
For the Defendant	Mr S Gannon	Embleton & Associates

TABLE OF CONTENTS

A. The dispute.................................................................................................................................... 1

B. The land below the CB boundary allegedly used as a headland........................................ 3

B.1.The irrigation systems in place along the CB boundary................................................. 3
B.1.1.The relevance of the irrigation system and Mr Sorbara’s evidence.................. 3
B.1.2.Mrs Prochilo’s evidence.......................................................................................... 6
B.1.3.Mr Joey Prochilo’s evidence................................................................................... 7
B.1.4.The plan used to record spraying.......................................................................... 7
B.1.5.The contractor used................................................................................................. 8
B.1.6.The drip system for the single row of vines......................................................... 8
B.1.7.Conclusion — the drip system was installed by 23 May 1997.......................... 9

B.2.Did the Sorbaras turn on the Prochilos’ land?............................................................... 10
B.2.1.The parties’ positions............................................................................................. 10
B.2.2.Did the Sorbaras have sufficient space to turn machinery on their own land? 11
B.2.3.The Sorbaras were crossing the boundary at the time the fence was erected in September 2017...................................................................................................... 14
B.2.4.Would Mr Giuseppe Prochilo have refused to allow the Sorbaras to cross the boundary?............................................................................................................... 15
B.2.5.Was the CB boundary impassable after 1995..................................................... 17
B.2.6.Jones v Dunkel........................................................................................................ 19
B.2.7.The contention that the form of irrigation controlled the path of the Sorbaras’ machinery............................................................................................................... 19
B.2.8.Conclusion — the Sorbaras crossed the CB boundary from, but not before, 23 May 1997.......................................................................................................................... 21
B.2.8.1.After the drip system was installed.................................................... 21
B.2.8.2Before the drip system was installed................................................... 22

B.3.The criteria for the establishment of an easement......................................................... 25
B.4.Were the criteria for the establishment of an easement met?...................................... 29
B.4.1.‘Open’, and the requirement of notice or knowledge....................................... 29
B.4.1.1. Actual knowledge................................................................................... 29
B.4.1.2. Constructive notice................................................................................. 30
B.4.1.3. Shift in onus............................................................................................. 32

B.4.2.Conclusion — the easement is not established.................................................. 34
B.4.3.Continuous enjoyment.......................................................................................... 34
B.4.4.Without force.......................................................................................................... 34
B.4.5.Use ‘as of right’, or lack of permission................................................................ 35
B.4.6.Without stealth....................................................................................................... 35
B.4.7.Accommodate the dominant tenement.............................................................. 36
B.4.8.Is it an easement known to the law?................................................................... 36
B.4.9.The extent of any easement.................................................................................. 36

C. Would the fact that land was leased or licensed affect the creation of an easement?.. 38

D. The land next to the single row of vines along the CD boundary................................... 42

D.1.The claimed use of the Prochilos’ track as a passageway between the land above the CB boundary and the Sorbaras’ sheds.................................................................................. 43
D.2.The claimed use of the Prochilos’ track as a location from which to tend the single row of vines..................................................................................................................................... 45
D.2.1.When was the single row of vines planted?...................................................... 45
D.2.2.When was the Sorbaras’ access to the Prochilos’ track prevented?............... 48
D.2.3.Did the Prochilos acquiesce, prior to 9 September 1997, in the use of their track for the purpose of tending the single row of vines?..................................................... 48
D.2.4.The other criteria for the establishment of an easement.................................. 50
D.2.4.1.Use and notice of use............................................................................ 50
D.2.3.2.Is the claimed easement known to the law?...................................... 53
D.2.4.3. The survey as an interruption of use................................................... 54
D.2.4.4. The scope of any easement................................................................... 55

E. Disposition................................................................................................................................... 55

HIS HONOUR:

A. The dispute

The Sorbaras are fruit and vegetable farmers in Woorinen, near Swan Hill. The Prochilos are their neighbours. The Sorbaras claim that they had been driving their farm machinery on parts of the Prochilos’ land since at least 1995 until 9 September 2017, when the Prochilos erected a fence on the boundary. The Sorbaras claim that, by reason of this long period of use,[1] they now have a right to an easement over that land by application of the doctrine known as the ‘lost modern grant’ or ‘prescription’, and seek relief directed at confirming the existence of and formalising that easement.
[1]I propose to adopt the more modern word ‘use’, rather than the more traditional word ‘user’, to describe the use of the land. Not only is this more in keeping with today’s language, but it aids clarity, as it allows for a distinction to be made between the ‘use’ and the ‘user’, with the latter being a reference to the person who is engaging in the use. I respectfully agree with the observations in this regard made in London Tara Hotel Ltd v Kensington Close Hotel Ltd [2012] 2 All ER 554 at 570 [75] by Lewison LJ and at 560 [24] by Lord Neuberger MR.

On the plan below,[2] the Sorbaras’ land is the area enclosed in green land, and the Prochilos’ land is area enclosed in red and the block below that. There are two areas of land in dispute. The Sorbaras farmed the area above the CB boundary in north–south rows. They claim that they used a portion of the Prochilos’ land below the CB boundary for more than 20 years as a ‘headland’ to turn their farm machinery around the southern end of their rows. They claim an easement over 6.2 metres of the Prochilos’ land along the CB boundary so that they can continue to do so. That is the first area in dispute. The second area in dispute is that part of the Prochilos’ land alongside the boundary marked CD on the plan. The Sorbaras contend that in 1996 they planted a single row of vines on their land alongside but a few feet inside that boundary,[3] and thereafter used a track alongside that boundary on the Prochilos’ land to tend that row of vines. They also say that they used that track on occasions when driving from the land above the CB boundary down to their sheds on the southern part of their property. They claim an easement over the strip of land alongside the letters CD and extending 2.5 metres into the Prochilos’ land so that they can continue that use.

[2]This plan is a cropped portion of Exhibit A. The letters A–D have been added at the vertices as was agreed between the parties. The boundary lines between the vertices are referred to as, for example, ‘the AB boundary’. The label for the former open water channel and the north arrow have also been added for convenience.

[3]Mr Sorbara said the single row of vines was ‘about two feet or so from the boundary’. A surveyor’s report has measured the centre of the vine as being 0.97 metres from the boundary at the north, and 0.93 metres from the boundary at the south.

The Prochilos deny that the Sorbaras used the Prochilos’ land at all. They assert that the Sorbaras turned their vehicles on their own land above the CB boundary for all or much of the 20-year period, that the single row of vines was not planted until after 2000, and that the Sorbaras did not use the track alongside the CD boundary on the Prochilos’ side. They also say, in the alternative, that if the Sorbaras did use their land, then the various other criteria for the establishment of an easement relating to that use were not met.

The Sorbaras’ land has at all relevant times been registered in the names of Joseph and Gail Sorbara, the plaintiffs. Since approximately September 1999, the Sorbaras’ farming business has been carried on by Sorbara’s Pty Ltd. The northern part of the Prochilos’ land (being the area enclosed in red on the plan above) was at all relevant times registered in the name of Giuseppe Prochilo, and he was the original named defendant. He died prior to trial and Mrs Teresa Prochilo — who is his widow, the executrix of his estate and the current registered proprietor of the land the subject of this proceeding — is now the defendant. The southern part of the Prochilos’ land (over which no easement is claimed) was purchased by Prochilo Vineyards Pty Ltd, a company associated with Giuseppe Prochilo’s son, Joseph (‘Joey’) Prochilo, in July 2007 from Mr Kenneth Neyland. Also, for at least some periods of time since July 2007, Giuseppe Prochilo leased his land to Prochilo Vineyards Pty Ltd. The Prochilos also say that, even if the Sorbaras did use their land in the way that the Sorbaras allege, no easement arises because of the ownership and business structures employed from time to time.

I will refer to Joseph and Gail Sorbara as Mr and Mrs Sorbara. I will refer to Mrs Teresa Prochilo as Mrs Prochilo.[4] To avoid confusion, I will refer to Mr Giuseppe Prochilo and Mr Joey Prochilo including by their first names.

B. The land below the CB boundary allegedly used as a headland
B.1. The irrigation systems in place along the CB boundary
B.1.1. The relevance of the irrigation system and Mr Sorbara’s evidence

[4]Both Mrs Sorbara and Mrs Prochilo were referred to in that way, rather than by using ‘Ms’, by their own counsel. I assume that is their preference.

The location and form of irrigation from time to time is important because Mr and Mrs Sorbara said that they turned to the outside (south) of the irrigation source along the CB boundary — that is, on the Prochilos’ property — in order to avoid damaging the irrigation system. The surface irrigation points are currently 1.6 metres from the boundary and no one suggested that that distance was sufficient to turn the farm machinery. So if, throughout the relevant period, there was an irrigation source that distance from the boundary and the Sorbaras turned to the south of it, then it must follow that they had turned, to some extent, on the Prochilos’ land, rather than entirely on the Sorbaras’ land.

Initially, the area above the CB boundary was irrigated by a series of open channels. The strip indicated on the plan running north–south to the west of the Sorbaras’ property was an open concrete channel. It was not on the Sorbaras’ land. An open concrete channel ran to the east from that channel across the Sorbaras’ land to the point marked C on the plan, and then south from the point marked C to the point marked D. This channel had been used, in earlier years, to provide water to the block constituting the southern part of the Prochilos’ land. The certificates of title for the Sorbaras’ land recorded easements in the location of these concrete channels.

There was also a channel that continued the concreted channel from the point marked C east towards the point marked B on the plan. This channel ran above the boundary on the Sorbaras’ land and was used by the Sorbaras to irrigate the area above the CB boundary. This channel was not concreted and was not noted as an easement on the certificate of title, presumably because it did not service any neighbouring blocks. It was not used to irrigate the Prochilos’ land below the CB boundary. The Prochilos used a channel across the top of their land that ran west through the point marked A.

Mr Sorbara gave evidence that, in about 1986, when he was farming the land with his parents, and out of frustration with the open channel system, he arranged for a system of ‘pipes and risers’ to be installed at the property. In this system, water was taken from the large open channel to the west of his property in underground pipes to areas where it was needed. As part of this system, a six-inch diameter pipe was buried parallel to and about ‘five to six feet’, or 1.6 metres, to the north of the CB boundary — that is, in the location where the dirt channel had previously been. The dirt channel was then filled in. At the time that this was installed, the Sorbaras had stone fruit trees in the area above the CB boundary that were planted in rows about 14 to 15 feet apart. For every row of trees, a two-inch diameter ‘riser’ was connected to the underground pipe. The riser came to the surface and had a tap at the top. This ‘pipes and risers’ system was still a form of flood irrigation, as water was run from the risers down temporary open furrows that were dug between the rows of plants.

I accept Mr Sorbara’s evidence that the pipes and risers irrigation system was installed in about 1986. His evidence was believable, and tied in with his taking over the farming operations the year before.

Mr Sorbara said that in ‘around’ 1995 or 1996 he changed to a drip system (which remains in place). Instead of water flowing from the risers down open furrows alongside the trees, it was delivered, with the assistance of a pump, but from the same points, to a drip line for each planted row. Sometime in the early 2000s, the stone fruit trees were replaced with capsicums, which were planted in bays of six or eight rows with gaps for a tractor to use between each bay. A three-quarter-inch poly pipe was used to connect a drip line for each row in a group of rows to the source that had previously serviced the one row of stone fruit trees. The irrigation points to which the drip lines connected were still, and remain, 1.6 metres from the CB boundary. Mr Sorbara said ‘the irrigation line has not changed whether it was channelled pipes and risers or drips, it was always in the same spot.’

The Prochilos did not dispute that the current irrigation system is a drip system and that the source of the water is currently located approximately 1.6 metres from the boundary fence.[5] Nor could they dispute this, because photos were tendered that showed it at that location. But they did dispute that the drip system was introduced when Mr Sorbara said it was, and they did dispute that it was necessary to turn machinery around the south side of the irrigation systems, whenever they were introduced. Mr Giuseppe Prochilo, who ran their farm prior to 2007, died on 31 March 2020, which was after this proceeding had been commenced but before it came on for trial. No application was made to lead evidence of prior representations made by him.[6] Rather, the Prochilos’ challenge to the evidence that the drip system had been installed in or around 1996 was based on the lack of any documentary records of its installation and:
[5]Mr Joey Prochilo thought it might be even closer.
[6]Cf Evidence Act 2008 (Vic) s 63.

(a) Mrs Prochilo’s evidence;

(b) Mr Joey Prochilo’s evidence as to his observations and what he said was the normal practice in the area;

(c) a plan of the Sorbaras’ farm prepared sometime after 1996, which recorded what pesticides were used on the crops and when;

(d) the suggestion that a contractor said to be used was not then in business; and

(e) the suggestion that the single row of vines was said not to have been drip-irrigated until after 2004.

B.1.2. Mrs Prochilo’s evidence

Mrs Prochilo said that the open dirt channel along the CB boundary on the Sorbaras’ land did not stop being used by the Sorbaras for irrigation until 2004. I did not find this evidence persuasive. She had previously said that she was not sure when it had ceased being used, and that there was so much vegetation along the CB boundary that she couldn’t even see if there were people in the paddock above. Mr Joey Prochilo accepted that the Sorbaras had pipes and risers since (he said) the early to mid-1990s, which was inconsistent with the open dirt channel being used after that time. Mrs Prochilo also said that the channel along the CD boundary stopped being used in 2004, whereas Mr Neyland gave evidence that this source of water to his property ceased being used by him in the early-1980s and that he believed that it ceased being used by anyone else after that time. Mrs Prochilo had no recollection of there being established plum trees on the land above the CB boundary before the apricot trees, and thought that the Racos (who farmed the land before Mr Sorbara) had had grapes there, which causes me to doubt the accuracy of her recollection of that part of the Sorbaras’ farm. Further, she said that Mr Joey Prochilo and Mr Sorbara only started to work together from 2014, whereas Mr Joey Prochilo accepted that he and Mr Sorbara started to communicate in relation to marketing their products from 2009.

I formed the view that Mrs Prochilo’s evidence was designed to further what she perceived to be her family’s interests over the Sorbaras’ interests, without any real regard to its accuracy. Mrs Prochilo had quite a visceral dislike of the Sorbaras, based, it seems, on her belief that they and their forebears had ‘bad blood’. She asserted that she ‘never’ spoke to members of the Sorbara family when she walked her farm, which I found unbelievable, in circumstances where they were neighbours, she had attended weddings and christenings and birthday parties at their invitation and, prior to 2016, the families were on outwardly friendly terms. This evidence was also directly contrary to the evidence given by Mrs Woolhouse, Mr and Mrs Sorbara’s daughter, which I accept, that when she was young Mrs Prochilo had on occasions brought her cooked capsicums, and the evidence from Mrs Sorbara that the families had exchanged gifts at Christmas. There was an unpleasant interaction between the families in 2018 when water from the Sorbaras’ land flooded the Prochilos’ land. Mrs Prochilo deposed that she and Mr Joey Prochilo became angry after this incident because Mr Sorbara and Mrs Woolhouse came out of the car smiling, but the video of this incident shows that she was furious before that time. Although that evidence was of no direct relevance, it was an example of her giving inaccurate evidence for the purpose of painting the Sorbaras in a bad light, or at least of her having an inaccurate memory. Where Mrs Prochilos’ evidence was in conflict with the evidence of Mr or Mrs Sorbara or Mrs Woolhouse, I prefer their evidence.

B.1.3. Mr Joey Prochilo’s evidence

It was put to Mr Sorbara that Mr Joey Prochilo would give evidence that the Sorbaras did not install the drip system along the CB boundary until between 2000 and 2004 and that ‘nobody in the district’ had a drip system before 2000. In fact, Mr Joey Prochilo only gave evidence to the effect that in 2004 the open channels outside the properties operated by the water authorities were converted to enclosed pipelines. He did not give evidence based on his own observations as to when the drip system was installed. There is no reason why the introduction of a drip system, following from the introduction of pipes and risers, could not have preceded the conversion of the open channels outside the properties to enclosed pipelines.

B.1.4. The plan used to record spraying

The Sorbaras discovered a handwritten plan of their land that had various features of their land identified on it and that gave a number to each area on which crops were planted. It was discovered as a plan prepared between ‘1998 and circa 2003’. Its purpose was to act as a cross-reference to a diary recording what pesticides were sprayed at what location, so there would be a record of what pesticides had been used on what crops at what times, which was a requirement for the supply of produce to supermarkets. The plan had markings on it described in the legend as ‘pipes and risers’. The Prochilos relied on this as evidence that, as at 1998 to 2003, the Sorbaras still irrigated with pipes and risers, rather than a drip system. Mrs Sorbara was identified as the author of the plan. She acknowledged that the reference to pipes and risers was inconsistent with the existence at that time of a drip system, but said that the plan was mistaken. She explained the mistake was due to her copying the plan from an earlier version, which could not now be located.

The plan was intended to record the pesticides used, rather than to be an accurate record of the farm infrastructure. I accept Mrs Sorbara’s explanation. I thought she was an impressive witness who gave honest evidence.

B.1.5. The contractor used

Mr Sorbara said that he used either Mick Kozma or Tom Burge to install the drip irrigation system. The Prochilos tendered an ABN search that showed that Mr Kozma started a business in 2000. Mr Sorbara said that Mr Kozma used to work for Mr Burge and then went out on his own. Ultimately, in my view, the fact that Mr Kozma obtained an ABN in 2000 does not suggest that he did not perform work for Mr Sorbara, in one capacity or another, earlier than that date.

B.1.6. The drip system for the single row of vines

It was put to Mr Sorbara that, sometime after 2007, Mr Sorbara asked a contractor doing work for Mr Joey Prochilo to have the single row of vines running along the CD boundary connected to a drip irrigation. Mr Sorbara denied this; he agreed that he had asked for work to be done on the irrigation for the single row of vines, but said that this work had been to improve the drip system that was already in place. However, when he gave evidence, Mr Joey Prochilo seemed to accept that this work was directed at modifying an existing drip irrigation system, rather than introducing one. So the fact that work was done on the irrigation system affecting the single row of vines in 2007 does not indicate that there was not by that time a long-standing drip system in place above the CB boundary.

B.1.7. Conclusion — the drip system was installed by 23 May 1997

Mr Sorbara was an impressive witness who gave his evidence in a straightforward manner. I broadly accept his evidence as to the nature and location of the irrigation systems in place from time to time on his property. It was something within his direct knowledge as a person involved in farming the land since 1985. His explanation that he became quickly dissatisfied with the open channel system shortly after becoming involved in the management of the farm in 1985 was believable. A tax depreciation schedule for the partnership[7] then operating the farm records an expenditure on ‘irrigation piping’ that was ‘acquired’ on 7 February 1986, and other expenditure on ‘irrigation layout’ that was acquired in 1996 and 1997. This is consistent with the installation of pipes and risers in 1986 and then a drip system across 1996 and 1997. His evidence was supported by the evidence of Mrs Sorbara and of Mr Neyland, who said that he was ‘sure’ that the drip irrigation ‘would have been done by 2000 at the latest’.
[7]Mr Sorbara and his wife were then operating the farm in partnership with his parents.

However, Mr Sorbara’s evidence was understandably imprecise as to exactly when the drip system was installed. As noted above, he initially said that it was installed ‘around’ 1995 or 1996. He also at different times said it was ‘probably’ installed in 1996 not 1995, agreed that it was there ‘since 1995’, and said that he converted to the drip system in ‘around about 1996’. No event was identified that allowed him to be precise in the choice of year, or any particular time within the year, other than that it was shortly after his mother and father-in-law retired. He had no receipts or photographs that could be used to establish the precise date. I formed the view that these years were his best estimate of when the drip system was installed, rather than firm dates fixed in his memory. In the circumstances, I consider the tax depreciation report to be the best indication of when ‘around’ 1995 or 1996 the drip system was installed. That is the only contemporaneous record relating to the installation of the drip system that was produced. That report identifies ‘acquisition’ dates in November and December 1996 for ‘irrigation layout’, a date of 17 January 1997 for ‘electrical contracting’, and a date of 23 May 1997 for ‘irrigation layout’.

Accordingly, I conclude that:

(a) a pipes and risers irrigation system was installed along the CB boundary in about 1986, replacing the dirt channel that had previously been there;

(b) the pipes and risers irrigation system was replaced by a drip system between November 1996 and 23 May 1997, and that the drip system was operational from May 1997. I am not satisfied that the drip system was completed or in use prior to May 1997; and

(c) both systems sourced water from a pipe that ran east–west, 1.6 metres to the north of the CB boundary.

B.2. Did the Sorbaras turn on the Prochilos’ land?
B.2.1. The parties’ positions

As noted above, Mr Sorbara said that when farming the block above the CB boundary, he always turned his machinery around the outside of the irrigation system and that, in doing so, he crossed the boundary and used land owned by the Prochilos. He said that this was done whenever the machinery was used to plough, plant, spray or harvest the crop. Mr Sorbara’s evidence that the machinery was always turned to the south of the irrigation source was supported by evidence given by his wife Mrs Sorbara, his daughter Mrs Woolhouse, and, for the period since 2010, by his son-in-law Mr Woolhouse. This evidence, if accepted, would have the Sorbaras turning their machinery on the Prochilos’ land since approximately 1986.

The Prochilos contended that the Sorbaras never turned their machinery on the Prochilos’ land. They challenged Mr Sorbara’s evidence by:

(a) contending that the land above the CB boundary had been planted, for at least much of the relevant time, with sufficient room for a tractor to be turned below the crops and within the Sorbaras’ land;

(b) stating that they never saw the Sorbaras use the land below the CB boundary as a headland;

(c) contending that the CB boundary was or had been effectively impassable, and that if it had been passed over they would have seen evidence of that having happened, which evidence they did not see;

(d) contending that it was inconceivable that Mr Giuseppe Prochilo would have permitted Mr Sorbara to use his land. This was in a context where Mr Sorbara said that he would stop and speak with Mr Giuseppe Prochilo in the course of working the land above the CB boundary, including by using the land below that boundary. The Prochilos contended that Mr Giuseppe Prochilo was too hard working to stop and chat, and the relationship between the families was so poisonous that Mr Giuseppe Prochilo would not have spoken to Mr Sorbara or permitted him to use the Prochilo land;

(e) disputing that a tractor or other machinery could not be driven over the irrigation equipment; and

(f) contending that the Sorbaras’ evidence of use relied largely on generalised statements of practice reaching back to a time in which their memory is likely to be vague, and that their recollection was largely unsupported by documentary evidence.

B.2.2. Did the Sorbaras have sufficient space to turn machinery on their own land?

By the time the fence was erected in 2017, the Sorbaras were farming capsicums on the land above the CB boundary. However, there were plum trees above the CB boundary from at least 1985 until sometime in the early 2000s. These trees were replaced with apricot trees for a short period, and then the stone fruit trees were removed entirely sometime in the early 2000s, after which time only capsicums were grown in that area.

Mr Sorbara insisted that he had always planted close to the irrigation line and that he did not use any space within his own property as a headland to turn tractors. He stated that the plum trees were planted about 10 feet above the irrigation line (although that space was not used as a headland), which would be about 10 feet from the location of the old irrigation channel. This would not be sufficient room to turn machinery because, he said, he needed at least four metres. That, along with the wish to avoid damaging the furrows that ran from the risers, seem to be the reasons for which he said he turned instead on the Prochilos’ land. On the other hand, Mr Joey Prochilo said that when the Sorbaras had plum trees above the CB boundary the Sorbaras had their own headland on their own property sufficient to turn their tractors. Indeed, he said that it was only in the years from 2013 that the Sorbaras started to plant their capsicums closer and closer to the irrigation source, thereby reducing their headland.

Notwithstanding Mr Sorbara’s evidence, I find that the Sorbaras did have a sufficient distance between their crops and the CB boundary to turn a tractor on their own land at least until they replaced the stone fruit trees with capsicums in the early 2000s. I have reached this conclusion for the following reasons:

(a) The existence of the remnants of a fence along the CB boundary indicates that there was, at some time, a fence along that boundary that would have prevented persons driving machinery across it. Mr Neyland, who had bought what is now the bottom part of the Prochilos’ land in about 1978, had a memory of an impassable fence being there. In the presence of such a fence, anyone farming the Sorbaras’ land would have had to turn their machinery on their own land and so would have needed sufficient space to do so.

(b) While the land above the CB boundary was being irrigated from an open channel running along that boundary, the Sorbaras (or their predecessors) would have had either to turn their machinery on their own land above the channel, or drive their machinery over and back across the channel every time they turned at the southern end. It is one thing to turn machinery across the temporary furrows alongside the rows of trees that were made to carry water down from the channel after they had dried out, but it is another thing to drive across the channel itself. Mr Luigi Fotia, who was called by the Prochilos, in answer to a question asked by their counsel, said that the channel that had been in place along the CB boundary before the pipes and risers were installed was not the sort of channel that could (read, should) be driven over and that where there was flood irrigation from a channel the headland was between the ends of the rows and the channel. That struck me as commonsense.

(c) Together, these matters suggest that when the plum trees were planted they were probably planted with a sufficient headland to turn machinery on the Sorbaras land to the north of the channel.

(d) Further, Mr Joey Prochilo produced a large aerial photograph that had been mounted on the wall of his parents’ lounge room that he called a ‘portrait’ of the farm. Although that portrait is not completely clear, it was taken at a time when the Prochilos had trees, not vines, on their land below the CB boundary, and the Sorbaras had trees on their land above the CB boundary. Certainly, no one suggested that the plants shown were capsicums. Mr Joey Prochilo estimated that the portrait was taken in around 2000, or at any rate before 2005, based on his recollection that the Prochilos had replaced their own plum trees with vines by that time. Mr Joey Prochilo also produced another, normal-sized aerial photograph that had ’02 22-01’ stamped on its back. I take this to indicate that that photograph was taken in January 2002. That photograph shows what appear still to be trees on the Sorbaras’ land above the CB boundary and vacant land on the Prochilos’ land to the south of that boundary. The Sorbaras said that they farmed plum trees to the north of the CB boundary until sometime in the early 2000s, then some apricots for a year or so, before removing them and planting only capsicums. The apricot trees were planted in the same location that the plum trees had been planted. Mrs Woolhouse thought that the portrait photograph must have been taken in the 1980s, but this was based on the size of vegetation around the Prochilos’ residence, and I am not satisfied that she would have been able to differentiate between 20 years’ growth, and 40 years’ growth. Putting these matters together, I conclude that the ‘portrait’ photograph was taken at a time when the Sorbaras’ land still had on it stone fruit trees (very possibly, apricots) and at a time when the Prochilos had removed their trees but not yet planted their vines. This would mean it was taken after 2000 but prior to the other photograph taken in January 2002, which is consistent with Mr Joey Prochilo’s evidence. Significantly, the portrait indicates, to my eyes, that there was at that time a significant distance between the southern end of the Sorbaras’ trees and the CB boundary, which supports Mr Joey Prochilos’ evidence that the Sorbaras had at that time sufficient space to turn their tractors on their own land above the CB boundary.

Also, Mrs Sorbara accepted, under cross-examination, that there was up to 15 feet of bare space with nothing planted to the south of the plum trees, although that space was taken up after the capsicums were planted.

That is not to say, of course, that the Sorbaras must have used that headland to turn their tractors. The Sorbaras’ case was that they always turned to the south of their irrigation points after they changed to pipes and risers and then to drip irrigation. I consider that question further in the paragraphs below.

B.2.3. The Sorbaras were crossing the boundary at the time the fence was erected in September 2017

The fence was erected in September 2017 following an altercation between Mr Joey Prochilo and Mr Sorbara along the CD boundary after some water entered the Prochilos’ land from the single row of vines. Photographs that were taken at that time indicate that, but for the new fence, there were no barriers or features of the land that would have prevented the Sorbaras from crossing the boundary.

I am satisfied that, at least by this time, the Sorbaras were turning their machinery on the Prochilos’ land. Mr Joey Prochilo asserted that the Sorbaras were, by this time, growing their capsicums down to the irrigation point. If this were so, then the Sorbaras would not have had room to turn their machinery on their own land, as the irrigation point was only 1.6 metres from the boundary.

Mr Joey Prochilo said that his father’s purpose in erecting the fence was to prevent further fights between the families. This may have been a purpose, but I am satisfied that it was not the only purpose. The first part of the fence erected was along the CB boundary, not the DC boundary, and it was constructed with heavy box posts rather than pine posts. The presence of such a fence would not have prevented the ingress of water, which had been the immediate source of conflict between the families, let alone water across the CD boundary. But it would have prevented the entry of machinery. Further, Mr Joey Prochilo said that he erected the fence with box posts rather than pine posts because he was aware that pine posts ‘would be broken’. This suggests that the presence of farm machinery being used by the Sorbaras in that area was in his mind at the time.

On balance, and taking into account also Mr and Mrs Sorbara’s evidence, I find that the Sorbaras were crossing the CB boundary at that time and that the fence was constructed at least in part to prevent that from continuing.

In light of this finding, the question becomes not whether or not the Sorbaras ever used the Prochilos’ land below CB as a headland, but rather when they first started doing so and in what circumstances. For the Sorbaras to succeed, they must establish, among other things, that they started using the land before 9 September 1997, that is, for more than 20 years prior to the fence being erected.

B.2.4. Would Mr Giuseppe Prochilo have refused to allow the Sorbaras to cross the boundary?

Mr Sorbara’s uncle, the brother of his father, is believed by the Prochilos to have mistreated one of Mr Giuseppe Prochilo’s sisters. Mrs Prochilo says that this behaviour had shown that the Sorbaras had ‘bad blood’ and were ‘bad people’. She believed that this problem infected the entire family and meant that the Prochilos should not have anything to do with the Sorbaras, despite their being neighbours. Mr Joey Prochilo said that his father had had the same view, and was very hard working, and that therefore his father would not have stopped to speak to Mr Sorbara or permitted him to cross the boundary to turn his tractor.

The position of the Sorbaras was very different. Mr Sorbara thought that they were good friends with the Prochilos. Mrs Woolhouse recalls Mrs Prochilo giving her food when she was young. The Sorbaras’ position is that the relationship only soured after 2016 when the Sorbaras were not invited to Mr Giuseppe Prochilo’s 80^th birthday party.

Whatever Mr Giuseppe Prochilo and Mrs Prochilo may have said in private, the evidence established that:

(a) Mr Joey Prochilo and Mr Sorbara had a functioning business relationship until 2016, in the course of which they worked together when deciding when to release produce to the market; and

(b) the Prochilos were invited to, and attended, several Sorbara family functions, including a wedding and a christening.

It is apparent that the relationship between the families is now poisonous. But I am satisfied that outward manifestations of any dislike did not emerge until after 2016. I accept the evidence given by Mr and Mrs Sorbara and Mrs Woolhouse to the effect that they believed that they had a good relationship with the Prochilos. That evidence is consistent with the fact that they invited the Prochilos to several important family functions, and it also explains the sense of hurt that they felt when they were not invited to Mr Giuseppe Prochilo’s 80^th birthday party. That belief must have arisen in part from the manner in which the Prochilos treated the Sorbaras, whatever the Prochilos might have thought of them or said to each other in private.

In the absence of evidence from Mr Giuseppe Prochilo himself, who could not be called, I am not prepared to conclude that his relationship with Mr Sorbara was such that he would not have stopped to speak to him while they were working in the same area, or that he would never have permitted Mr Sorbara to cross the CB boundary. It should be recalled that allowing the Sorbaras to cross the CB boundary better to farm their land did not cause any immediate disadvantage to the Prochilos.

B.2.5. Was the CB boundary impassable after 1995

The Prochilos contended that the CB boundary was impassable due to the presence of the irrigation channel, a fence or the remnants of a fence, the presence of large weeds, and a change in levels. They also contended that in about 2004 a series of some five or six star pickets were installed following a survey.

Mr Joey Prochilo described the fence as ‘the remains of a fence’ that was ‘bent up’ and ‘broken’. He said that the fence was a barrier in the sense that it posed a risk of a puncture or other damage to a vehicle from the pieces of barbed wire lying on the ground in the grass. Mr Joey Prochilo’s evidence was supported by Mr Luigi Fotia, who had married Mr Joey Prochilo’s sister and assisted with planting the vines on the Prochilos’ property below the CB boundary sometime between 2000 and 2003. Mr Fotia said that there was a change in level at the boundary of ‘probably a couple of feet’. He said that it would have been ‘impossible’ to cross the boundary with a tractor because there was too much wire and that ‘you’d puncture a tyre straight away’, and that even if there had not been wire the boundary could not be crossed because of the amount of grass present and the change of levels. Mr Sorbara accepted that there were ‘the remnants of a fence’ along the CB boundary, but asserted that they were not sufficient to prevent him from crossing it. He accepted that there was from time to time significant growth along the CB boundary, particularly when the family was focusing on the crops in other areas of the farm, but said that the area would be cleared up when required.

I accept Mr Sorbara’s evidence that, at least from 1995, the CB boundary was not impassable. I accept that the height difference was not a sharp drop and would not prevent a tractor from travelling across it, and neither would the weeds that grew there from time to time. I am not persuaded by Mr Joey Prochilos’ evidence that the risk of a puncture would be too great for anyone to cross it. Mr Joey Prochilo did not give any evidence that he had attempted to cross it, and it is entirely possible that there was not sufficient barbed wire to puncture a tractor tyre in the locations where the Sorbaras say they crossed the boundary. Similarly, I do not accept Mr Fotia’s evidence that the boundary was impassable. I did not consider that Mr Fotia’s evidence was reliable. No-one had suggested that there was a change in level of ‘probably a couple of feet’, and the photos of the present situation suggest the contrary. He also said that it was not possible to turn machinery in less than six metres of headland, whereas the evidence given by Mr Joey Prochilo established that it was possible to turn machinery in 4.2 metres. I consider that these pieces of evidence revealed a willingness on his part to exaggerate.

For completeness, I note that:

(a) The Sorbaras called Mr Neyland, who said that when he sold his block of land to Prochilo Vineyards Pty Ltd (in substance, to Mr Joey Prochilo) in 2007, there was an impassable fence along both the DC and CB boundaries. This was contrary to the evidence of Mr Joey Prochilo, who described it instead as ‘the remains of a fence’ that was ‘bent up’ and ‘broken’, and indeed the evidence of everyone else. I accept that when Mr Neyland’s bought his land in 1978 the fence was impassable, but I do not accept Mr Neyland’s evidence that it remained impassable until 2007.

(b) The Prochilos also called Lawrence Ewart, who worked for the Sorbaras between 2003 to about 2005. He said that he punctured his car tyre when he drove onto the boundary between the Sorbaras’ and the Prochilos’ land, but, after some confusion, it seems that this was not along the CB boundary but was up from B along the AB boundary. He said that he could not recall there being a single row of vines along the CD boundary, but did not say that there was no such row when he worked there. I found his evidence confusing, and ultimately unhelpful.

Also, I am not persuaded that the driving of a tractor across the CB boundary would necessarily have left a mark that remained apparent for an appreciable length of time. As the Prochilos emphasised, when disputing that they would have had constructive notice of any such crossing, the tractors would only have been crossing and recrossing the CB boundary for a relatively short period on a few days over a year, and it is entirely possible, in my view, that any subtle signs of their having done so had disappeared before the Prochilos had noticed them.

B.2.6. Jones v Dunkel

The Prochilos did not seek an inference from the failure of the Sorbaras to call Michael Sorbara, the son of Mr and Mrs Sorbara.[8] They did ask me to draw an inference in accordance with Jones v Dunkel[9] from the failure by the Sorbaras to call other persons who were apparently on the Sorbaras’ witness list.
[8]I was informed that his wife was having a baby.
[9](1959) 101 CLR 298.

Jones v Dunkel established that if a witness who would be expected to be called by a party is not called by that party and there is no explanation for that failure, an inference may be drawn that that witness’ evidence would not have assisted that party.[10] In their written submission, the Prochilos drew my attention to what was said to have been contained in witness statements that had been exchanged pursuant to court orders. As advised in the course of oral addresses, the statements were not in evidence and I propose to have no regard to what was said to be contained in them. There was otherwise no evidence that identified any particular persons in the Sorbaras’ camp whom they might have been expected to call but were not called. Accordingly, the criteria for the drawing of a Jones v Dunkel inference have not been satisfied.

B.2.7. The contention that the form of irrigation controlled the path of the Sorbaras’ machinery

[10]I have considered the application of Jones v Dunkel (1959) 101 CLR 298 in Cayford v Let Danny Do It Pty Ltd [2021] VSC 707.

Neither Mr Joey Prochilo nor Mrs Prochilo gave evidence that they actually observed the Sorbaras turning their machinery on their own land to the north of the CB boundary. Their evidence that the Sorbaras must have done so was based instead on their belief that the boundary was effectively impassable, and that if it had been crossed then they would have seen signs of that having been done. On the other hand, each of Mr and Mrs Sorbara and Mrs Woolhouse gave evidence of having themselves regularly crossed the CB boundary when tending their crops.

Mr Sorbara said that ever since he installed the pipes and risers in 1986 he had always turned his machinery to the south of the water source. He said that he did so to avoid damaging the furrows. As noted above, he also said that there was only 10 feet between the start of the rows and the risers and that he needed at least four metres to turn.

As noted above, the pipes and risers still provided for flood irrigation. Temporary furrows took the water from the risers down alongside the rows of crops, just as they had done when the water was sourced instead from the open channel. Again as noted above, when the water was being sourced from an open channel rather than the risers, the tractor would have had either to cross those temporary furrows or to cross the permanent open channel. When the fence was in place, the tractor would have had no choice but to cross the temporary furrows. I have expressed in paragraph 27 above my conclusion that there was, while the plum trees were still present, sufficient room on the Sorbaras’ land to turn to the north of the channel. Accordingly, I do not consider that the introduction of pipes and risers compelled a change to this practice. It might have been convenient to turn to the south of the risers, if otherwise possible, to avoid damaging the temporary furrows, but that would be all. If the temporary furrows were not in place, then there would be no benefit in driving across the CB boundary rather than immediately to the south of the row of trees. It would be important, of course, not to run over the risers, but because they were placed where the channel had been, there would have been room to turn without doing so.

The position is different with a drip irrigation system. As an accident of history, as it were, the drip irrigation system started 1.6 metres from the CB boundary, and so ran for some distance until it reached the plum trees that were initially there. Unlike the temporary furrows, the drip line would remain in place. The installation of the drip system the way it was meant that, at least for the years between 23 May 1997 and the early 2000s when the plum trees were removed, the Sorbaras had either to drive their machinery across the drip lines, or turn to the south of the water source point 1.6 metres from the CB boundary, and thus cross into the Prochilos’ land.

Mr Sorbara stated that he did not drive over the drip lines, or the piping connecting the drip lines to the water source, because doing so would damage them. The Prochilos disputed Mr Sorbara’s evidence. Although Mr Joey Prochilo contended that there was no reason why a drip line could not be driven across, he did not give evidence of that being done by him or anyone else. Strictly, what is important is whether Mr Sorbara believed that he could drive over them without damaging them.

B.2.8. Conclusion — the Sorbaras crossed the CB boundary from, but not before, 23 May 1997
B.2.8.1. After the drip system was installed

Taking all the above into account, I am satisfied that, since the installation of the drip system on 23 May 1997, the Sorbaras drove their machinery across the CB boundary into the Prochilos’ land in order to turn their machinery when they were tending their crops above that boundary. I accept Mr Sorbara’s evidence that he did not drive over the drip irrigation system because he believed that to do so would damage it. I consider it probable that by this stage the fence had reached a point of decay where it was not a barrier, and that the boundary was otherwise negotiable by a tractor and other like farm machinery.

In forming this view, I am influenced by the way that Mr and Mrs Sorbara and Mrs Woolhouse gave their evidence. Each did so in a straightforward manner, and made concessions where appropriate. Each was adamant that they had turned their farm machinery to the south of the irrigation points. Importantly, the presence of the drip line provided a rational reason for their doing so. I accept their evidence in this regard.

Similarly, I do not accept Mr Joey Prochilo’s evidence that the CB boundary was impassable, or that the Sorbaras never crossed the CB boundary. In my view, Mr Joey Prochilo tended to exaggerate. He, too, demonstrated a visceral dislike for the Sorbaras, and I consider that that influenced his evidence. He stated that the height difference between the two properties was ‘a distinct 30 to 35 centimetres’, when photographs produced by him, when read correctly, clearly indicated a difference sometimes of 19cm over a distance of some metres. He said that the Sorbaras would only work on the paddock above the BC boundary ‘a handful’ of times over a year, and sought to portray it as a largely uncared-for plot. I do not accept that this was so. He contended that the BC boundary was effectively impassable, without explaining how or when it reached the state revealed in the photos taken when the fence was built, at which point it was, clearly, able to be traversed by a tractor or other like machinery. Following an occasion when water had flooded his land below the CB boundary, and he was filmed behaving aggressively towards the Sorbaras, he said that his ‘crazy’ behaviour (which he regretted) was the result of the Sorbaras’ smirking and failing to apologise. This was, I consider, at the very least an exaggeration, because the video shows that he was angry and aggressive from the moment the Sorbaras arrived, and that his aggressive barrage in effect denied them an opportunity to apologise had they wished to do so. He said both that the Sorbaras ended up planting their capsicums right to the water source, which was only 1.6 metres from the boundary, and that they never crossed the boundary. This would not be possible if the Sorbaras were to turn at the bottom of the rows of capsicums. His explanation that the new fence was built in part to ‘stop water running in’ was unpersuasive. It would not have stopped water. He also said that it was installed to stop the ‘two families from feuding’. But a preceding altercation to which he referred had not taken place at the CB boundary, and so this would not explain why the fence would be erected there first. In my view it is more likely that the fence was installed, in part, to prevent the Sorbaras from entering onto the Prochilos’ land at that point.

B.2.8.2 Before the drip system was installed

Mr Sorbara, as I understood his evidence, had two reasons for which he said that he always turned on the Prochilos’ land, even before the drip system was introduced. The first was that he did not have sufficient room to turn on his own land, because the trees were only 10 feet from the boundary or irrigation line, and the second was the presence of the furrows used in the flood irrigation.

I have not accepted his first reason. I have concluded that, at least at the time that the land above was still planted with stone fruit trees, there was sufficient room for the Sorbaras to turn on their own land. Accordingly, Mr Sorbara’s assertion that it was ‘necessary’ to turn on the Prochilos’ land was not persuasive in relation to the period prior to the installation of the drip system, in so far as that necessity arose from any asserted lack of space. Also, the fact that Mr Sorbara thought there was only 10 feet when he needed at least four metres to turn, and thus that he had insufficient room to turn, when I have found to the contrary, casts doubt on the accuracy of his recollection of the circumstances at that time.

Further, Mr Sorbara’s assertion that since 1986 he had always turned on the Prochilos’ land because of the presence of the furrows did not, to my mind, sufficiently engage with the following:

(a) the fact that farmers must have routinely driven across temporary furrows in the days of open channel flood irrigation, so as to avoid driving across the open channels themselves. That would have had to have been the case on much of this property when the permanent open channels were in place, and also in particular on the land above the CB boundary when the old fence was first built. This causes me to doubt Mr Sorbara’s evidence that it was ‘very hard’ to drive the equipment over the furrows, which was put forward as a reason for which he instead drove into the Prochilos’ land to turn; and

(b) the fact that the furrows were only temporary. Mr Sorbara explained that they were ploughed up and re-done every watering or every second watering. They were also ploughed in different locations in relation to the rows depending on the stage of the crop. When the furrows were being used, in the sense that they had water in them, machinery was not used to tend the crops at all. But it was not said, for example, that the furrows were present, in the sense of having been recently ploughed, all year around. To the extent that furrows provided an obstacle to a tractor, or otherwise a good reason to cross into the Prochilos’ land, I am not persuaded that they did so throughout the year or otherwise on each or nearly each occasion on which a tractor was being used to prune, to spray, to slash weeds or to harvest the fruit trees.

Mrs Sorbara also gave evidence that they ‘always’ turned after the irrigation point. But when this was challenged in cross-examination, her only justification for that practice was the presence of the drip system, rather than any need to avoid driving over the temporary furrows that preceded the installation of the drip system. I consider that Mrs Woolhouse, who was born in 1984, was too young for me to place reliance on her memory of what was done prior to 1997.

Mr Sorbara’s failure to address the considerations set out above – to ground his evidence in that context - combined with what I have found to be an inaccurate belief on his part that there was insufficient room to turn on his own land, and Mrs Sorbara’s failure to identify the furrows as a reason for crossing the boundary, result in my not being affirmatively satisfied on the balance of probabilities[11] that the Sorbaras always turned their machinery on the Prochilos’ land prior to the installation of the drip system in 23 May 1997. I consider that Mr Sorbara’s recollection of how he farmed the trees prior to May 1997 has been distorted by the passage of more than 24 years, the fact that for many years after May 1997 he did travel over the CB boundary, and possibly also his desire to succeed in this case.[12] I accept that there may have been occasions prior to the installation of the drip system when the Sorbaras did turn on the Prochilos’ land, in order to avoid driving over furrows, but I am not affirmatively satisfied that prior to the installation of the drip system they always or nearly always did so.
[11]Cf Briginshaw v Briginshaw (1938) 60 CLR 336, 361 (Dixon J); Strong v Woolworths (2012) 246 CLR 182, 211 [76] (Heydon J); NOM v Director of Public Prosecutions (2012) 38 VR 618, 653 [112] (Redlich and Harper JJA and Curtain AJA).
[12]See, eg, Onassis and Calogeropoulos v Vergotis [1968] 2 Lloyd’s LR 403, 431 (Lord Pearce); Nominal Defendant v Cordin (2017) 79 MRV 210, 240–246 [165]-[166] (Davies J).

Although it is a small point, it should be remembered that the boundary did exist and was known to exist, and there was a small drop in height, the remnants of a fence, and from time to time weeds and the like. Mr Giuseppe Prochilo would also burn off cuttings after pruning along that boundary. Although the boundary was not impassable, it was, nonetheless, not as if there was clear and open pathway between the two boundaries as might be the case between two fields on the one property.

The evidence would not permit me to determine the extent to which the Sorbaras did turn their machinery on the Prochilos’ land prior to the installation of the drip system. Their case was that they always did so, and I have not accepted that factual assertion. They did not present a case, and probably for good reason, that some lesser level of occasional use could be sufficient to establish an easement.

B.3. The criteria for the establishment of an easement.

The proposed easement must meet the usual criteria of an easement, in that it must be of a type that is capable of being the subject of a grant, and that it ‘accommodate’ the dominant tenement.[13]
[13]Re Ellenborough Park [1956] Ch 131.

Logically, any proprietary right, for it to be a right rather than merely a claimed right, must have had a lawful beginning. In the case of an ordinary easement, there must have been, at some stage, an express or implied agreement to create it. If the use has been since time immemorial, or for as long as anyone alive can remember, then it may be assumed that, at some stage, there has been such an agreement, even if the details of the agreement cannot now be established. This makes sense in circumstances where the use has been since time immemorial or for as long as anyone alive could remember and the use is not otherwise able to be explained. But, in order to promote the interest of stability in the usages of land, and following the introduction of statutory limitation periods in the United Kingdom in the 19^th century, a different method of establishing an easement developed. Instead of the use having to be since time immemorial or for as long as anyone alive could remember, the law provided that 20 years was sufficient. This is the doctrine of ‘the lost modern grant’.[14] It seems that although initially it was a question of fact as to whether or not the existence of a lost grant could be inferred, eventually the inference became unassailable; if the necessary use was established, the claim could not be defeated by evidence that no grant was ever in fact made.[15] Consequently, the notion that there had been a grant that had been lost was recognised as a legal fiction.[16]
[14]See Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283, 307–8 (Griffiths CJ).
[15]Dalton v Angus (1881) 6 AC 740, 765 (Lindley J), 813–4 (Lord Blackburn); Hampshire Automotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd (2020) 60 VR 579, 590 [54], 598 [94] (Tate, Niall and Emerton JJA).
[16]Hampshire Automotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd (2020) 60 VR 579, 589 [52] (Tate, Niall and Emerton JJA).

The criteria for the emergence of an easement from 20 years’ use of a neighbour’s property are otherwise expressed in different ways. It is said that the use must have been ‘nec vi, nec clam, nec precario’ — that is, without violence, without stealth and without permission.[17] It is also said that the use must have been ‘as of right’, and have been with the knowledge of, but without the consent of, the neighbour.[18] These requirements overlap, and must be understood in the context of the underlying rationale and reasoning processes for which the law recognises the emergence of an easement in these circumstances.
[17]See, eg, Mills v The Mayor, Alderman, and Burgesses of Colchester (1867) LR 2 CP 476, 486 (Montague Smith J); Laming v Jennings [2018] VSCA 335, [83] (Kyrou, McLeish and Niall JJA).
[18]See, eg, Laming v Jennings [2018] VSCA 335, [84] (Kyrou, McLeish and Niall JJA).

As noted above, the rationale for the development of the fiction was to promote certainty of peoples’ interests in land. But the finding of an easement places a burden on the servient tenement. Accordingly, if it is to be just, there must be something in that person’s conduct that makes it appropriate to burden them with an easement that they never in fact agreed to grant and for which they received no consideration. That gives rise to the notion of ‘acquiescence’; if a person had notice of the use, and did nothing to prevent it for 20 years, then, just as if there were a statutory limitation period, they could no longer be permitted to complain if the use were to become permanent. A ‘lapse of time accompanied by inaction, where action ought to be taken, may confer a right not previously possessed’.[19] ‘The paper owner would be expected to resist the assertion of right or face the consequence of an easement by prescription arising if it fails to do so.’[20] Indeed, it is this fundamental notion of acquiescence that informs the questions as to whether a particular use has been open and without force, as of right, and whether the owner of the servient tenement had notice. This area of law ‘rests upon acquiescence of the owner’.[21] Each of the criteria are, in my view, really ways of considering whether or not there has been the necessary acquiescence. I will develop these connections further below when the individual criteria are considered.
[19]Dalton v Angus (1881) 6 AC 740, 773 (Fry J).
[20]Laming v Jennings [2018] VSCA 335, [85] (Kyrou, McLeish and Niall JJA).
[21]Dalton v Angus (1881) 6 AC 740, 773 (Fry J), discussed in Laming v Jennings [2018] VSCA 335, [85] (Kyrou, McLeish and Niall JJA). See also Sunshine Real Estate Investments Pty Ltd v Wulff [1999] VSC 415, [117] (Hedigan J).

A right may also arise in circumstances where the owner was not aware of the use of the land at all, but ‘ought’ to have been aware of that use. In those circumstances, notice will be imputed. The rationale for imposing an easement in these circumstances of ‘constructive’ notice is the expectation that land owners will with reasonable diligence inform themselves of actions taken in respect of their land. They will be held to have notice of that which, with reasonable diligence, they would have observed. Expressed in the negative, ‘the prescription cannot arise where the acts would not be known to an owner reasonably diligent in protecting its rights’.[22] Although the distinction is not always made clear, one cannot in fact acquiesce to something of which one is unaware,[23] and so this is, conceptually, an extension from the notion of acquiescence in fact to a form of ascribed acquiescence. It is difficult to see how this extension sits comfortably with the basal concept that the easement arises in circumstances where the conduct of the parties gives rise to an assumption that there must have been at some time in the past an actual grant. Nonetheless, these are the balances that have been struck between the public benefit in promoting certainty in land use and the rights of individual land owners.
[22]Laming v Jennings [2018] VSCA 335, [84] (Kyrou, McLeish and Niall JJA).
[23]Ibid [86].

Importantly, the use, and the actual or constructive notice of and associated acquiescence in that use, must both have been in place for more than 20 years. I have accepted that the Sorbaras used the Prochilos’ land below the CB boundary from 23 May 1997, but not before that date. That use commenced more than 20 years before it was brought to an end by the erection of the fence on 9 September 2017. But the Sorbaras must establish that the Prochilos acquiesced in that use for more than 20 years, which requires the Sorbaras to establish that the Prochilos had sufficient notice of that use for more than 20 years. The Sorbaras cannot succeed if the Prochilos’ awareness of the use emerged in the course of the 20 years of use. This point was made by Hedigan J in Sunshine Retail Investments Pty Ltd v Wulff.[24] In that case, the claimants were a group of residents who claimed a pedestrian right-of-way of a pathway through an apartment block to access a shopping strip. Although his Honour considered the claimants to be ‘self-evidently honourable and decent people’ who had used the path for a long period,[25] they were unsuccessful in establishing an easement-of-way. His Honour found that the owner did not have actual or constructive knowledge of ‘the slowly growing use between 1973 and 1979’,[26] being the commencement of the 20-year period. Because the owner of the claimed servient tenement lacked the requisite knowledge of the use at the commencement of the 20-year period,[27] that owner could therefore not be said to have acquiesced for the full 20-year period.[28]
[24][1999] VSC 415.
[25]Ibid [147] (Hedigan J).
[26]Ibid [102], [111].
[27]Ibid [144].
[28]Ibid [75].

Accordingly, because the Sorbaras ceased using the Prochilos’ land on 9 September 2017 when the fence was erected, on the question of notice or acquiescence, consideration must be given to the period between 23 May 1997 and 9 September 1997, being the commencement of the 20-year period. The Sorbaras must establish that their use of the Prochilos’ land had been such that it may be said that the Prochilos had ‘acquiesced’ in that use as of right by 9 September 1997. Use after that date is relevant because it must be shown that the use was ‘continuous’ and that the acquiescence continued for 20 years, but unless the period of acquiescence can be established as having started prior to 9 September 1997, the Sorbaras must fail.

B.4. Were the criteria for the establishment of an easement met?
B.4.1. ‘Open’, and the requirement of notice or knowledge
B.4.1.1. Actual knowledge

Mr Sorbara said that he regularly saw Mr Giuseppe Prochilo when he was using the Prochilos’ land, and that they would stop and converse while he was doing so. This evidence was disputed, but uncontradicted. Mr Giuseppe Prochilo died after this proceeding had commenced but prior to trial. A ‘hearsay notice’ in accordance with s 67 of the Evidence Act 2008 was filed, by which notice was given that Mr Joey Prochilo and Mrs Prochilo intended to give evidence of statements made by Mr Giuseppe Prochilo. However, those proposed statements did not dispute Mr Sorbara’s evidence in this regard. As noted above, I thought Mr Sorbara to be an honest witness and I am not persuaded that, whatever Mr Giuseppe Prochilo said in private to his family, he would have ignored or been rude to Mr Sorbara when they were working their land in each other’s vicinity. Nor am I persuaded that Mr Giuseppe Prochilo would work so hard, all the time, that he would not have stopped to chat to his neighbour. Accordingly, I accept that, on multiple occasions prior to Mr Giuseppe Prochilo’s death, Mr Giuseppe Prochilo observed Mr Sorbara using the Prochilos’ land.

However, Mr Sorbara’s evidence of his interactions with Mr Giuseppe Prochilo was, understandably, general — ‘we’d meet up there with both tractors and stop and talk’ — and he did not give any focussed evidence as to how often he spoke to Mr Prochilo while working on the CB boundary or whether any of these interactions with Mr Prochilo took place during the four-month period between 27 May 1997 and 9 September 1997. That four-month period was more than 24 years prior to trial. In those circumstances, I am not prepared to draw an inference that there was a discussion between Mr Sorbara and Mr Giuseppe Prochilo with Mr Sorbara on the Prochilos’ land during this four-month period. Accordingly, I am not prepared to conclude that the Prochilos had actual knowledge of the Sorbaras’ use of their land prior to 9 September 1997.

B.4.1.2. Constructive notice

As noted above, a party will have constructive notice of the use of its land, for the purpose of the doctrine of the lost modern grant, if the use was sufficiently apparent that a party acting reasonably in its own interests would have noticed that use.[29] The constructive notice must be, of course, constructive notice of use in circumstances where the failure to object to that use amounts to an acquiescence.
[29]Laming v Jennings [2018] VSCA 335, [91] (Kyrou, McLeish and Niall JJA).

I am not affirmatively satisfied that the Prochilos should be fixed with constructive notice of the Sorbaras’ use of the land below the CB boundary by 9 September 1997, so as to permit the conclusion that an easement arises, for the following reasons:

(a) There was, at that time when there were fruit trees, I have found, sufficient room for the Sorbaras to turn their machinery on their own land. So there was no reason for the Prochilos to assume that the Sorbaras must have been, at that time, crossing the boundary. Similarly, the fact that the Sorbaras were using machinery in the vicinity of the CB boundary was not something that would or should have alerted the Prochilos to the prospect that the Sorbaras were trespassing onto the Prochilos’ land.

(b) Mr Sorbara gave evidence that fruit trees would be pruned in June or July, and then sprayed on a two to three-week basis until November or December depending on the weather. They would then be harvested in February. Their machinery would only be located on the Prochilos’ land for the period of time that was required to turn the equipment around at the end of a row. Based on a video of that process being performed by Mr Joey Prochilo, I conclude that each turn would have taken no more than 10 seconds. The CB boundary is approximately 48 metres, or 157 feet, in length. The rows of trees were about 16 feet apart. There were therefore around nine or ten rows of trees above the CB boundary. I infer that when machinery was working the rows of trees it would drive up one gap between two rows, turn at the top and come down in the next gap, then turn at the bottom and drive up the next gap, and so on. Accordingly, each time a tractor drove up and down between each row of trees as part of the process of pruning or collecting the branches pruned or spraying, it would turn at the bottom across the CB boundary approximately five times, with each time occupying approximately 10 seconds. Thus, the machinery would be on the Prochilos’ land for less than a minute in total, spread over a much larger time. These figures are of course estimates. But they indicate that when the matter is properly considered, the actual amount of time for which the machinery would be turning below the CB boundary, and thus observably using the Prochilos’ land, was small. For the great majority of the time, the machinery would be on the Sorbaras’ land.

(c) Mr Joey Prochilo said, and I accept, that the position of the Sorbaras’ machinery on the Sorbaras’ farm was not easily seen from the Prochilos’ house or from much of their land. There would be no reason for the Prochilos to pay any particular attention to where the Sorbaras’ machinery was from time to time and it cannot be assumed simply from the fact that the Sorbaras crossed a short distance across the CB boundary that the Prochilos probably or should have noticed their doing so.

(d) The mere presence of the drip system did not put the Prochilos on notice of the fact that the Sorbaras must have been crossing the CB boundary. I accept that Mr Joey Prochilo believes that it is possible to drive across a drip system. There was no evidence that an inability to drive across a drip system was notorious, such that the laying of it should have caused the Prochilos to assume that the Sorbaras must have been turning below its source, rather than in the land between its source and the trees.

(e) I am not satisfied that the crossing of the boundary would have left obvious marks, or marks that the Prochilos should have observed. There was some forensic difficulty for the parties in this regard, as the Prochilos, when disputing that the Sorbaras crossed the boundary, contended that there was so much vegetation and the topography was such that any crossing would leave obvious signs and there were no such signs. On the other hand, the Sorbaras contended that the boundary was easily crossed and there was little vegetation that would leave marks. Ultimately, I am not satisfied that the crossing of the boundary would have left sufficiently clear markings in the vegetation, or on the ground, to put the Prochilos on notice that the boundary had been crossed. The doctrine of constructive notice does not require that the Prochilos be treated as expert trackers or require them to have been looking out for whatever subtle signs that may have been left by a tractor crossing the boundary.

In summary, on the evidence led, I am not satisfied that the extent of the use of the Prochilos’ land below the CB boundary over the relevant four-month period prior to 9 September 1997, seen in context, was such that the Prochilos must or ought to have been aware of it to the extent required to justify a conclusion that by failing to object they were acquiescing in the Sorbaras’ use of their land as of right.

B.4.1.3. Shift in onus

The Sorbaras submitted, however, that because their use of the land was ‘open’, there was a shift in onus and knowledge ought to be assumed unless the Prochilos could establish a lack of knowledge.

The concept of an evidentiary onus (or burden) is elusive. It seems to me that to say that an applicant’s evidence has created a situation where a respondent has an ‘evidential burden’ is merely to say that the applicant’s evidence, if not met by other evidence, is sufficient to discharge the onus of proof.[30] That might be because the evidence led if uncontradicted is sufficient to prove a fact in issue, or because a fact will be assumed in the absence of evidence indicating that it is in dispute.[31] But unless an applicant’s evidence, if not met by other evidence, is sufficient to establish the matters required to be established, then there will not be any ‘evidentiary onus’ placed on a respondent. Of course, the unexplained failure by a respondent to call evidence may permit a court more readily to draw an inference in the applicant’s favour,[32] but the inference still has to be properly available. If the applicant’s evidence, even if not met by other evidence, is unreliable in some way or leaves the court speculating or is otherwise insufficient to establish the matters required to be established, then no ‘evidentiary onus’ of any consequence can be imposed on the respondent.
[30]See, eg, Brady (Inspector of Taxes) v Group Lotus Car Cos Plc [1987] 2 All ER 674, 687 (Sir Nicolas Browne-Wilkinson V-C). This is a combination of the second and third senses of the phrase referred to by Heydon J in Strong v Woolworths (2012) 246 CLR 182, 201–2 [53]–[54].
[31]In that situation, the respondent must lead some evidence to challenge that assumption. One example is where an injured person establishes that their injury has led to an incapacity and there is no evidence about any pre-existing condition. In those circumstances, the ongoing connection between injury and incapacity will be assumed, unless the respondent adduces some evidence of a pre-existing condition and its potential independently of the injury to cause incapacity: see Watts v Rake (1960) 108 CLR 158; Purkess v Crittendon (1965) 114 CLR 164.
[32]Jones v Dunkel (1959) 101 CLR 298.

Because I have concluded that the evidence of ‘open use’ by the Sorbaras in the four months prior to 9 September 1997 was insufficient to justify a conclusion that the Prochilos were or should have been aware of that use and by not preventing it were acquiescing in that use, no onus fell on the Prochilos to prove their lack of knowledge.

The Court of Appeal stated in Laming v Jennings that:

it is to be presumed against an owner that open user of the land over a period of time has taken place with the owner’s knowledge, but the presumption may be displaced by evidence as to the owners’ lack of knowledge.[33]

[33]Laming v Jennings [2018] VSCA 335, [99] (Kyrou, McLeish and Niall JJA).

I do not interpret this statement as saying anything different to that which I have stated above. The inclusion of the phrase ‘over a period of time’ is significant. It immediately raises the question as to what period of time is sufficient. The answer must be a period of time that is sufficient, in the context of the type of use and other surrounding circumstances, to justify an inference in the absence of evidence to the contrary that the owner had or should have become aware of, and had acquiesced in, that use. The language used by the Court of Appeal thus emerges out of, and does not alter, the same underlying reasoning process. In this respect, I note the Court of Appeal’s observation that the presumption is often traced to Pugh v Savage,[34] in which case knowledge was presumed but in circumstances where the 20-year period finished in 1968 and the use commenced in 1932, that is, some 16 years prior to the commencement of the 20-year period.
[34][1970] 2 QB 373.

D.1. The claimed use of the Prochilos’ track as a passageway between the land above the CB boundary and the Sorbaras’ sheds

[51]Dewan v Lewis [2010] EWCA Civ 1382, [33] (Elias LJ), quoting Williams v James (1867) LR 2 CP 577, 580 (Bovill CJ), [37] (Elias LJ).

The track was but one means by which the Sorbaras could access the land above the CB boundary. There was open land immediately to the west of the single row of vines, on their own land, that was able to be used, and was used, by them as a track for machinery. Also, the dotted line marked to the west of the CD boundary on the planning map immediately below paragraph 2 above was another track for machinery that ran down through the Sorbaras’ field and led directly to their sheds. It seems that, for the most part, the Sorbaras drove their machinery between their sheds and the land above the CB boundary on their own land, and only occasionally used the Prochilos’ track for this purpose. Mr Sorbara said that ‘sometimes … between point B and C and instead of crossing right over, you would drive on the eastern side of the single row of vines and come out at point D’. He later clarified that this was ‘just a shortcut home’ and that it was only done ‘occasionally’. Mrs Sorbara also said that this was done ‘sometimes’, and later that she could not recall on whose land she herself drove.

In my view, this evidence does not establish the level of regular and consistent use of the Prochilos’ track prior to September 1997 as a right of way that would justify a conclusion that the Prochilos knew or with reasonable diligence would have known that their land was being used for that purpose as of right and that by their failure to prevent it they were acquiescing in that use.

Also, I am not satisfied that this occasional use in the circumstances would ‘accommodate’ the Sorbaras’ land in the necessary sense. An owner of land is not able to ‘create any rights not connected with the use or enjoyment of the land, and annex them to it’.[52] The creation of permanent property rights over land that bind subsequent owners involves matters of broad public interest in a way that private contractual arrangements for the use of land do not. Accordingly, an easement, being a right that will run with the land (rather than merely a contractual or other like arrangement) can only exist where the use ‘accommodates’ the dominant tenement, in the sense that it ‘must be reasonably necessary for the enjoyment of the dominant tenement and not merely confer advantage on the owner of that tenement, as would a mere contractual right’.[53] There must be a ‘natural connection between the dominant and servient tenements’.[54] The focus is on the ‘normal enjoyment’[55] of the dominant tenement, and the nexus ‘must exist in a real and intelligible sense’.[56] It must confer ‘a real and practical benefit on [the dominant tenement]’ and be reasonably necessary for its ‘better enjoyment’[57] and be ‘more than just a mere convenience’.[58]
[52]Ackroyd v Smith (1850) 10 CB 164; 138 ER 68, 77(Cresswell J).
[53]Clos Farming Estates v Easton (2002) 11 BPR 20,605, 20,610 [31] (Santow JA, Mason P agreeing at 20,606 [1] and Beazley JA agreeing at 20,606 [2]).
[54]Ibid.
[55]Re Ellenborough Park [1956] Ch 131, 170 (Evershed MR).
[56]Ibid.
[57]Huckvale v Aegean Hotels Ltd (1989) 58 P&CR 163, 168 (Nourse LJ).
[58]Clos Farming Estates v Easton (2002) 11 BPR 20,605, 20,613 [43] (Santow JA, Mason P agreeing at 20,606 [1] and Beazley JA agreeing at 20,606 [2]).

As I understand it, this requires me to take a step back and to consider the usages of the two blocks of land and the relationship between them in the understanding that an easement, if found, will remain in perpetuity encumbering the servient tenement. Here, the layout of the land and its use as farmland gives no natural connection between the Sorbaras’ land and the Prochilos’ track. The Prochilos’ track was just one of several ways by which machinery could travel between the Sorbaras’ land above the CB boundary and other parts of the Sorbaras’ land. There was no inherent advantage to those using the Sorbaras’ land in their travelling on the Prochilos’ track rather than on the tracks within the Sorbaras’ land that led to and from essentially the same locations. The Prochilos’ track did not lead to anywhere that was not otherwise easily accessible. For these reasons, I am satisfied that the use of the Prochilos’ track as a means of accessing or leaving the land above the CB boundary was use as a ‘mere convenience’, rather than a use that was ‘reasonably necessary’, or which otherwise gave any appreciable additional advantage to the owners of the Sorbaras’ land.

I am conscious that this conclusion does not sit easily with my conclusion, expressed in para 89 above, that the ability to use the Prochilos’ land as a headland does accommodate the Sorbaras’ land. At a simple level, both involve driving machinery from the Sorbaras’ land onto the Prochilos’ land and then back onto the Sorbaras’ land. But I do not consider that this precludes a finding that the use of a headland accommodates the dominant tenement, whereas the occasional use of a path doesn’t. Here, the use of the Prochilos’ land as a headland gave a real benefit to the Sorbaras because it permitted them to farm a larger area than they otherwise would have been able to farm. It also meant that they did not have to re-lay their irrigation system. But the use of the Prochilos’ land as a method of accessing their shed from the area above the CB boundary, on the evidence, was simply an alternative way of performing the same task that provided no real advantage. Having the right to do so would not in any appreciable way benefit the Sorbaras. It might have been different had there been some difficulty inherent in the Sorbaras’ land that made the alternative ways of access more problematic. But that was not the evidence.

Accordingly, the Sorbaras have not established an easement that would give them the right to drive on the Prochilos’ track to move to and from the land above the CB boundary and their sheds, or to or from any other parts of their land.

D.2. The claimed use of the Prochilos’ track as a location from which to tend the single row of vines.
D.2.1. When was the single row of vines planted?

As noted above, the Prochilos built a fence along the CB boundary on 9 September 2017, and later extended that fence down the CD boundary. The fence along the CB boundary interfered with the Sorbaras’ ability to access the Prochilos’ track, because they entered it at the point marked C. The building of the fence along the CB boundary also evinced a clear intention to deny to the Sorbaras the right to use the Prochilos’ land, including the Prochilos’ track. Accordingly, it is necessary, as was the case with the land below the CB boundary, to consider the extent and nature of any use by the Sorbaras of the Prochilos’ track prior to 9 September 1997, because that is the latest day by which it must be established that the Prochilos had notice of and acquiesced in the claimed use.

Mr Sorbara said that the single row of vines was planted in 1996. It was put to Mr Sorbara in cross-examination that Mr Joey Prochilo would say that the single row of vines was not planted until 2004. In fact, Mr Joey Prochilo’s evidence as to when the single row of vines was planted was not as precise as the cross-examination suggested it would be. Initially, his evidence was that he purchased his property in 2007, the row of vines was present at that time, but that he estimated from their young appearance that the vines had only been planted perhaps one to two years at the most before that time, later expanded to in 2004 at the earliest. But he later said that the single row of vines was planted ‘within a year’ of attempts by him and his father to plant a row of vines along the CD boundary themselves, and that this took place when he was around 15 or a little younger. Mr Joey Prochilo was born in 1980 so would have been 15 in 1995. Then, when he was asked whether his evidence was that he (with his father) had attempted to plant a row of vines between C and D in about 1995, he said ‘somewhere along those, probably a little bit later’. He also confirmed that the Sorbaras planted the single row of vines ‘a year or two’ after he and his father had attempted to plant their vines. This inconsistency in Mr Joey Prochilo’s evidence remained unexplained.

The Prochilos also called evidence from Mr Luigi Fotia, who assisted Giuseppe Prochilo with the planting of grapes below the CB boundary sometime between 2000 and 2003. In cross-examination, Mr Fotia denied that the single row of vines was present by that time. However, earlier in his examination-in-chief, it had become clear that he had little memory of what was on the Sorbaras’ land to the west of the CD boundary. He had said only that he could not recall there being a single row of vines there, in the context of his saying he could not recall any crops being grown on the Sorbaras’ land to the west of that boundary. I did not find his evidence persuasive.

In these circumstances, I conclude that the single row of vines was planted in or around 1996, rather than in 2004 or later. Mr Joey Prochilo’s evidence, based on recollection now of observations that were made in 2007 as to the apparent age of the vines at that time was not, to my mind, sufficiently persuasive to overcome his evidence, given in an apparently straightforward and clear manner, that the single row of vines was planted within a year or so of work performed by him with his father when he was about 15 years old.

That is not to say, however, that Mr Sorbara’s evidence that the single row of vines was planted in 1996, rather than at or about that time, has to be accepted. He did not identify any event by which he was able to identify the precise year upon which it was planted, save that he said that it was planted at a time when there were otherwise stone fruits in that area of his land. He did not produce any documents that indicated the year in which it was planted. The crop planning map referred to in para 16 above did not include any reference to the single row of vines. Mrs Sorbara initially said that the single row of vines was planted in ‘around 1996’, but under cross-examination accepted that she was ‘guessing’ and couldn’t recall. Ultimately, therefore, Mr Sorbara’s evidence that it was planted in 1996 was an assertion based, it would appear, simply on his unaided current memory of events that took place many years earlier.

A difficulty with Mr Sorbara’s evidence that the single row of vines was planted in 1996 rather than, say, 1997, arises, however, because he also said that the single row of vines was irrigated by the drip system. He did not say that it was initially irrigated in any other way. It would be most surprising if it were planted without an irrigation system in place for it. As noted above, Mr Sorbara also said that the drip system was installed in 1996, whereas the depreciation schedules, which were the only documentary records produced in relation to the drip system, record a final date of acquisition of 23 May 1997. I have set out above my finding that the drip system was not completed until on or after that date.

In these circumstances, despite Mr Sorbara’s evidence, I am not positively satisfied, on the balance of probabilities, that the single row of vines was planted prior to 23 May 1997. Rather, I think it more likely that it was planted at or about the time that the drip system was introduced. If it had been planted before the drip system had been introduced, I would have expected Mr Sorbara to have had some memory in relation to that, or to have been able to remember the drip system being introduced as a new method of irrigating the single row of vines the same way he could remember the drip system being introduced as a new method of irrigating the land above the CB boundary.

D.2.2. When was the Sorbaras’ access to the Prochilos’ track prevented?

As noted above, the Sorbaras accessed the Prochilos’ track at the top where it met the CB boundary. The fence erected by the Prochilos on 9 September 1997 had the practical effect of preventing the Sorbaras from accessing the Prochilos’ track from that date, despite the fact that the fence was only later extended down the CD boundary. Accordingly, as with the land below the CB boundary, the 20-year period began on 9 September 1997.

D.2.3. Did the Prochilos acquiesce, prior to 9 September 1997, in the use of their track for the purpose of tending the single row of vines?

The Sorbaras gave evidence that they pruned, sprayed and harvested the single row of vines, including from the Prochilos’, track from 1996. The Prochilos acknowledged that the Sorbaras pruned the single row of vines, but disputed that the Sorbaras ever did so from the Prochilos’ track, and disputed that the Sorbaras ever harvested the grapes. I accept the Sorbaras’ evidence that, speaking generally, prior to 2017, they did prune, spray and harvest the single row of grapes. It would not make a lot of sense to irrigate and to prune the single row of vines, but not to spray and harvest them, in circumstances where the farm had grapes elsewhere that it was spraying and harvesting and selling. As noted above, I formed the view that the Sorbaras (including Mrs Woolhouse) were honest witnesses doing their best to give accurate evidence. Where the evidence differs, I prefer the evidence of the Sorbaras to the evidence of Mr Joey Prochilo. That is not to say that Mr Joey Prochilo was giving evidence that he knew to be false. Rather, I accept that he had not himself observed the use by the Sorbaras of the Prochilos’ track in the way contended or, if he had seen them do so, he has forgotten seeing them do so. I also prefer the evidence of the Sorbaras to the evidence of Mrs Prochilo.

However, because I am not prepared to accept that the single row of vines was planted prior to around 23 May 1997, there has to be a focus on the period between then and 9 September 1997. The Sorbaras’ evidence was general and did not deal specifically with the situation that must have existed for the first four or so months after the vines had first been planted. The grape harvest started in summer, so the single row of vines would not have been harvested in the period between May and September 1997. The grapes were fertilised through the drip line so they were not fertilised from the Prochilos’ track. The two relevant tasks were pruning and spraying.

The pruning seems to have been the most time-intensive task, as that involved cutting vines by hand, then moving the cut canes from below the row of vines into the track, and then mulching the canes. This cutting took an hour and a half if two people were working one on each side. Mr Sorbara said that this was done ‘every year from 1996 to 2017’. But that statement was made without any reference to the fact that the vines had only just been planted in 1996, and I took it to be a general assertion of repeated regular pruning, rather than evidence that the grapes were pruned within months of their being planted. In the absence of some exploration of that issue or specific evidence, I am not prepared to conclude that the single row of vines was pruned, at least to the extent requiring use of the Prochilos’ track, after it was first planted in or around May 1997 and before September 1997.

There was no precise evidence as to how often the single row of grapes was sprayed, let alone as to how often it was sprayed prior to 9 September 1997. Although the Sorbaras had some records of spraying other areas of their farm, they did not have any spray records for the single row of vines. I am prepared to assume that the vines probably were sprayed in the months after they had been planted, but I am not prepared to assume, in the absence of evidence, that this would have happened on more than a few occasions. Each spray would have taken about a minute or a matter of minutes. It is entirely possible that the Prochilos would not have observed that use, and in my view it cannot be said that they ought to have been aware of that use.

In these circumstances, even if the Sorbaras’ evidence as to their use of the Prochilos’ track over the years prior to 2017 for the purpose of tending the single row of vines were to be accepted, as before, I am not satisfied that the use prior to 9 September 1997 was such that the Prochilos must or ought to have been aware of it by that time to the extent required to justify a conclusion that by failing to object they were acquiescing in the Sorbaras’ use as of right of their track for that purpose.

I should add that I would have reached the same conclusion even if I were to aggregate the use of the Prochilos’ track as a means of accessing the land above the CB boundary with its use to tend the single row of vines.

D.2.4. The other criteria for the establishment of an easement

In light of my finding expressed above, it is not necessary for me further to consider the question of the claimed easement over the Prochilos’ track. But because the matters were explored in the evidence and argued, it is convenient briefly to set out my findings and views.

D.2.4.1. Use and notice of use

In my view, the mere planting of the single row of vines, almost a metre back from the boundary, did not carry with it an assertion of a right to use the Prochilos’ track to tend those vines. It was not necessarily the case that the vines were to be treated as a productive crop, rather than, for example, as a hedge or boundary marker. But in any event, to the extent that the vines were to be treated as a productive crop, the distance between the vines and the boundary would have permitted them to be tended, albeit imperfectly, from within the Sorbaras’ land. Accordingly, any constructive notice on the part of the Prochilos of an asserted right by the Sorbaras to use the Prochilos’ track to tend the vines to could only have arisen once the track had started to be used for that purpose. As noted above, I have not accepted that there was sufficient use of the track prior to 9 September 1997 to put the Prochilos on notice.

My general findings as to the use of the Prochilos’ track in the years prior to 2017 are as follows:

(a) The Sorbaras, or their employees, drove up or down the Prochilos’ track to access the area above the CB boundary occasionally, but not with any regularity. On each occasion, they would have been on the Prochilos’ land for about a minute.

(b) The Sorbaras did tend, and harvest, the single row of vines. They not only pruned and irrigated the row of vines, but also sprayed it when needed in the ordinary course, and harvested it. They used the Prochilos’ track for this purpose.

(c) When the Sorbaras were pruning the single row of vines, which they would do once each year, someone would prune from the Prochilos’ side of the row of vines. But the Sorbaras’ machinery including the compressor powering the pruning shears would remain on their land, and the single row of vines was two to three feet inside the boundary. Accordingly, the fact that someone was pruning the vines from the Prochilos’ side, with the machinery on the Sorbaras’ side, would not have put someone on notice that the person pruning was asserting the right to do so from the Prochilos’ land. And of course, this aspect of the pruning process could not establish a right to use the Prochilos’ track, but at best any additional distance required beyond the boundary for the person working effectively to prune. This distance was not established.

(d) As part of the pruning process, the Sorbaras would drive their machinery once down the Prochilos’ track in order to sweep the cut canes onto the track, and then again to mulch them. There was no evidence specifically as to how long these trips would have taken. The CD boundary is about 130 metres long, and I am prepared to infer that they took about the same time as it would take to drive down the track spraying the vines, which was about one minute each time.

(e) The Sorbaras sprayed the single row of vines when required. They did not give evidence as to how often this took place. Most of the evidence in relation to spraying was focused on capsicums. But the Sorbaras did produce spray diaries that recorded at least some of the occasions upon which certain crops were sprayed for some periods. These records were incomplete. That said, a farm map cross-referenced in the spray diaries indicated that, at least for a period of time between 1998 and 2004, a grape known as ‘redgold’ was grown immediately to the west of the single row of grapes and this was given the number 18. The spray diaries indicate that over the six-year period between 4 November 1998 and 21 November 2004 this crop was sprayed on 14 occasions. A later farm map cross-referenced to the spray diaries indicates that, over the two-and-a-half-year-period between 26 October 2011 and 15 February 2013, capsicums being grown on the land immediately to the west of the single row of vines were sprayed eleven times. In the absence of any better evidence, I am prepared to infer that the single row of grapes was probably sprayed about as often as the redgold grapes were sprayed. I consider that a better indication than the number of times that capsicums were sprayed. I accept that this is likely to be an underestimate, as some spraying may have been undertaken and not recorded. But, in the absence of direct evidence from the Sorbaras, I am not prepared to infer that the single row of vines was sprayed on more than approximately two or three times each year. On each occasion, the Sorbaras would drive beside the single row of vines on the Prochilos’ track. Each trip would, again, take approximately one minute.

(f) As noted above, I accept that the Sorbaras harvested the single row of grapes. The persons picking the fruit did so from both sides of the vine. But, as with the pruning, the fact that someone was picking fruit would not put an observer on notice that they were asserting a right to do so from the Prochilos’ track, because the single row of vines was a few feet from the boundary. The evidence did not establish the extent to which the person picking fruit would be required to stand on the Prochilos’ track.

(g) The harvesting process would include a tractor or like piece of equipment being driven down the Prochilos’ track to collect the bins of grapes that had been picked. There was no evidence that established the duration of time that this would take. I assume that it would take a small number of minutes.

Contrary to the position with the headland below the CB boundary, there was no evidence that Mr Sorbara met and spoke to Mr Giuseppe Prochilo while Mr Sorbara was using the Prochilos’ track. It would not have been obvious to anyone observing from any distance that a tractor or other piece of machinery was being driven down the Prochilos’ track, rather than down the Sorbaras’ own track immediately to the west of the single row of vines. I accept that Mr Joey Prochilo had not, himself, seen the Sorbaras using the Prochilos’ track to spray, prune and harvest the single row of vines. But I would have concluded that, once the vines were established and had been tended and harvested for a few years, the Prochilos, acting reasonably, ought to have been aware that their track was being used for those purposes in the manner set out above.

D.2.3.2. Is the claimed easement known to the law?

The Sorbaras submitted that they were seeking to establish a carriageway easement, which is a well-known category of easement. The Prochilos submitted that the Sorbaras were instead seeking to establish an easement to tend crops, which is an easement unknown to the law. It is not necessary for me to decide this dispute. However, it seems to me that, insofar as the Sorbaras’ claim arises out of the use by them of the Prochilos’ track to tend the single row of vines, it is better characterised as a claim for an easement to tend crops than as a carriageway. The purpose and nature of the use was not to get from one point to another. The scope of the easement granted cannot be greater than the long use that has given rise to it. If the Sorbaras were to be granted a carriageway easement, it would permit a qualitatively different type of use to that in fact enjoyed over the relevant period.

The Sorbaras did not identify any other case in which an easement to tend crops has been recognised. The Prochilos submitted that in Clos Farming Estates v Easton[59] ‘an easement to cultivate a vineyard was refused as being a novel easement’. I disagree. In Clos Farming Estates v Easton, the claimed easement was in substance a right to cultivate a vineyard on another’s land. The claim did not fail because it was a ‘novel’ right; rather, it failed because the rights claimed were too extensive. The rights claimed effectively precluded the owners of the servient tenement from farming their own land and effectively deprived them of their right to exclusive possession.[60] That is not this case.
[59](2002) 11 BPR 20,605.
[60]Ibid 20,612 [38], 20,613 [40], 20,614 [46] (Santow JA, Mason P agreeing at 20,606 [1] and Beazley JA agreeing at 20,606 [2]). Cf Moncrieff v Jamieson [2007] 1 WLR 2620; Copeland v Greenhalf [1952] Ch 488, 498 (Upjohn J).

The categories of easements are not closed.[61] The issue, ultimately, is whether the claimed easement could have been the subject matter of a grant. I consider that it could have been. There can be an easement to enter onto a neighbour’s property to maintain a building at or close to the boundary.[62] I see no reason why a landowner in a farming area could not grant a neighbour the right to enter onto the landowner’s land for the purpose of pruning, spraying and harvesting a crop planted at or close to the boundary.

D.2.4.3. The survey as an interruption of use

[61]Re Ellenborough Park [1956] Ch 131, 140 (Dankwerts J).

[62]See, eg, Ward v Kirkland [1967] Ch 194.

The Prochilos submitted that a survey of the boundary between the Prochilos’ land and the Sorbaras’ land that was undertaken in 2004 had the effect of interrupting the 20-year period of use by the Sorbaras. They relied on Clement v Jones.[63] But that case was concerned with the assertion of title for the purposes of preventing time from running in a claim of adverse possession where the claimants had to establish that they had dispossessed the title-holder. I do not consider that it is authority for the proposition that the obtaining of a survey prevents time running in a claim for an easement from long use. The ongoing enjoyment of an asserted right in relation to another’s property is not inconsistent with that other person otherwise retaining the right to exclusive possession or with there being a clearly established boundary. Indeed, the whole purpose of an easement is that it gives one landowner rights over land otherwise owned by another.

D.2.4.4. The scope of any easement

[63](1909) 8 CLR 133.

An easement obtained by long use is limited by the nature of the use from which it has arisen.[64] Here, the Sorbaras were tending a grape vine. The evidence established that this was less intensive than growing an annual crop, such as capsicums. In the event that the Sorbaras did establish an easement by long use, the easement would not have been in the broad form sought, but would have had to be limited in scope so as to prevent it purporting to expand the burden that the Sorbaras could place on the Prochilos’ land.

E. Disposition.

[64]Mills v Silver [1991] Ch 271, 287 (Dillon LJ); Dewan v Lewis [2010] EWCA Civ 1382, [24] (Carnwath LJ).

For the above reasons, I am not satisfied that the criteria for the establishment of the easements the Sorbaras seek have been proved.

Accordingly, the proceeding will be dismissed. I will hear the parties on the question of costs.

[2022] VSC 146

25 March 2022