President & c. of the Shire of Narracan v Leviston
(1906) 3 CLR 846[1906]12ALR294
[1906] VLR 553
[1906] HCA 34
(Decision by: Griffith CJ)
Between: President
&
c. of the Shire of Narracan - Defendants, Appellants
And: Leviston - Plaintiff, Respondent
Judges:
Griffith CJBarton J
O'Connor J
Judgment date: 5 June 1906
Decision by:
Griffith CJ
This was an action for trespass to the plaintiff's farm by breaking down part of the fence and a gate, and for consequential damages caused by the loss of the plaintiff's cattle which escaped. The defendants are the local authority of the district in which the plaintiff's farm is situated, and they allege that there was at all times material upon and over the plaintiff's land a public highway, street and road within the meaning of the Local Government Acts; that the plaintiff had erected a fence and other obstructions across and upon such highway, street and road; and that thereupon the defendants, under their power and duty under the Statutes, and doing no unnecessary damage, caused such fence and obstructions to be removed so as to allow free passage over and along such highway, street or road. The substantial question in the case is whether there was a highway as alleged over the plaintiff's land. The land is a block of 320 acres, its boundaries running north and south, and east and west, the east and west boundaries being each one mile long, and the north and south boundaries each a half a mile long. The alleged road enters the northern boundary of the land and traverses it in an irregular winding line until it reaches a point on the eastern boundary about three-quarters of a mile from the northeast corner of the land, its length being about a mile. The result of the existence of such a road would be practically to sever the land into two portions, and the enjoyment of the whole would be materially interfered with, whether the road was fenced or not. The defendants say that this road was dedicated to the public by the successive owners of the land, or by some of them. It appears in evidence that the road has been in use more or less, and under circumstances to which I will refer later, since the year 1879.
Before referring to the facts and to the title of the successive owners of the land, which is material in determining whether there has been dedication, I will refer briefly to the authorities as to the onus the party undertakes on whom is cast the burden of proving that a highway has been dedicated to the public.
The case of Mann v. Brodie [F1] was an appeal from Scotland, and Lord Blackburn in moving the judgment of the House of Lords said:
The case is to be governed by the law of Scotland. Any reference to English law is apt to mislead, unless the difference of the law of the two countries is borne in mind. In both countries a right of public way may be acquired by prescription. In England the common law period of prescription was time immemorial, and any claim by prescription was defeated by proof that the right claimed had originated within the time of legal memory, that is, since a.d. 1189. This was, no doubt, an unreasonably long period. And sometimes, by legal fictions of presumed grants, and in part, by legislation, the period required for prescription as to private rights has, in many cases, been practically cut down to a much shorter definite period (see Angus v. Dalton). [F2] But this has never been done in the case of a public right of way. And it has not been required, though in the way in which the evil of the period of prescription being too long has been avoided, an opposite evil of establishing public rights of way on a very short usurpation has sometimes been incurred.
In Poole v. Huskinson, [F3] Parke B. said:
"In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate-there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight upon a question of intention, than many acts of enjoyment."
But it has also been held that where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.
I refer next to the speeches of the law Lords in Macpherson v. Scottish Rights of Way and Recreation Society Ltd. [F4] Lord Halsbury L.C., said:
"My Lords, the question in the mind of an English lawyer is not only whether he can, on proper judicial evidence, determine that there has been an exercise of such a right of way as is here in question, but whether he can reasonably infer from that that the owner had a real intention of dedicating that way to the use of the public."
Bearing in mind the passage which I have quoted from the judgment of Lord Blackburn in Mann v. Brodie [F5] pointing out the differences between the law of England and that of Scotland, and also that they both depend in a certain sense on prescription, I will read some passages from the speech of Lord Selborne in Macpherson's Case. He says: [F6]
"Now, when you have the fact of user of a road of this description in the manner and to the extent which would be the natural consequence of its being a matter of public right, and that fact proved by a sufficient amount of evidence, how is that to be met? According to the well known text of the civil law a claim of right of this kind will be repelled if it is shown to have been enjoyed vi (which is out of the question here, for certainly there has been no force), or clam (which I think is equally out of the question, for whatever use there was was so public that it must have been known), or precario; and that is the real question here."
Then after referring to the evidence in the case he continued:
"My Lords, I then ask the question, whether there has been any leave or licence or tolerance or sufferance, regarded as a question of fact. Is there any evidence whatever given in support of the affirmative of that opinion? Absolutely none."
Lord Watson said: [F7]
"My Lords, having regard to the character of the track in dispute, and to the thin population of the district in which it is situated, I think the amount of actual user, for upwards of forty years past, has been just such as might have been expected if it had been admittedly a public way. That being so, the case is narrowed to the issue-was such use had in the exercise and assertion of a public right, or must it be ascribed to the tolerance of successive proprietors?"
Those doctrines I conceive to be equally applicable to the law of England, which is also the law of Victoria, as to dedication. Now, there is no doubt that though continuous user of land without interruption may be sufficient evidence of dedication, as Parke B. said, it is only evidence. It may be so strong that a finding against it cannot be supported. But there is another element to be taken into consideration which is well illustrated in the case of Barraclough v. Johnson. [F8] It was alleged in that case that a road had been used for nineteen years, but it appeared that it had been laid out by the owner of the land under an agreement with a company and with the inhabitants of a hamlet that the road should be left open if the inhabitants would make and maintain it, and if the company would pay the owner five shillings a year and would find the materials for maintaining the road. Eighteen years afterwards there were disputes, and the road was obstructed by the owner of the land. The question to be considered there was whether, under those circumstances, dedication ought to be presumed. Lord Denman C.J. said: [F9]
"As to the other point, the agreement between the land-owner and the township, if it could be considered a conditional dedication, was as public as it can be expected that such a dedication should be: and it was for the convenience of both parties. Then, can there be a conditional dedication of the kind here supposed? Perhaps not. A dedication must be made with intention to dedicate. The mere acting so as to lead persons into the supposition that the way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction: and, referring to the agreement here, it is plain that there was only a licence to use. There was a permissive enjoyment from 1814; but it was put an end to in 1832. If such an enjoyment may be permitted by means of the way being left open to everyone, the leaving it so is not in itself evidence of a dedication. In Wood v. Veal25 B. & Ald., 454., the public had used a way over the locus in quo as long as could be remembered; but the land had been under a ninety-nine years' lease during the whole time, and Abbott C.J., left it as a question for the jury whether there had been a dedication to the public before the term commenced, saying that, if not, there could be no dedication except by the owner of the fee, and the lease explained the user as not being referable to a dedication by him."
Littledale J. said: [F11]
"The supposed dedication was, I think, a mere permission. When the circumstances under which it arose are stated, the idea of a dedication is rebutted. It is said that an intention to dedicate must be inferred from the acts of a proprietor; and it is true that the question is not decided by what he says. A man may say that he does not mean to dedicate a way to the public, and yet, if he had allowed them to pass every day for a length of time, his declaration alone would not be regarded, but it would be for a jury to say whether he had intended to dedicate it or not."
Patteson J. said: [F12]
"I think that the intention to dedicate or not must be left to the jury. The very term dedication shows that the intent is material. There cannot be such a thing as turning land into a road without intention on the owner's part."
Coleridge J. said: [F13]
"A party is presumed cognizant of the consequences following his own acts; and, if he permits user of a way over his land, a jury may presume that he intended to dedicate such way to the public. But you cannot exclude evidence of the circumstances under which the user commenced. And it appears here that an agreement took place between the land-owner, the surveyors of the hamlet, and the proprietors of the iron-works, that these last were to pay 5s. a year and to find cinders, which the inhabitants of the hamlet were to lead and spread: these are circumstances which, if not to be excluded, throw a strong light upon the commencement of the user, and show that no dedication was intended, provisional or absolute. And again, after nineteen years, we find an alleged breach of contract by the parties using the way, and a consequent interruption of the user. Suppose that, after nineteen days, the Thorncliffe Company had refused to fulfil their engagement; could not the land-owner have resumed the right of way? And, if so, why might not he after nineteen years?"
I have read the final passage because it is material to this case from another point of view.
The doctrine, therefore, that dedication may be presumed from continuous user must be qualified by adding the words "if unexplained," and it is always permissible, as pointed out by Patteson J., to inquire under what circumstances the piece of land came to be used as a road. Was it under such circumstances as showed an intention to dedicate? Or was it under such circumstances as to negative such an intention? Or was it under such circumstances as not to point in one direction rather than the other? A passage cited in argument from the judgment of Bowen L.J., in Blount v. Layard, [F14] is, I think, fairly applicable to Australia. If, every time a landowner allows anyone to ride over his land, that act is to be regarded as evidence of a user that will establish dedication of a road to the public, I think the inconvenience the public would suffer would be much greater than any benefit they would receive. Bowen L.J. said: [F15]
"Nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood. I can conceive nothing more unfortunate than that the owners of the right of fishing on large streams should be driven to prevent the successors and followers of Isaac Walton from dropping their lines for trout, for fear that their doing so should crystallize into a right. It would be a most unfortunate thing for the public if that should ever happen, and I think that, however continuous, however lengthy, the indulgence may have been, a jury ought to be warned against extracting out of it an inference unfavourable to the person who has granted the indulgence."
Bearing in mind these principles, upon which this case is to be determined, I will refer to the facts which were established in evidence. The land was first acquired under the Land Act 1869 by conditional purchase, under which system the selector obtained first a licence for three or six years, during the currency of which he had to perform certain conditions. At the end of that period, and having performed the conditions, the selector obtained a lease for the remainder of a period of 20 years, and at any time during the currency of the lease the selector might, by paying up the balance of the rent, obtain the freehold.
That was the mode in which the title was obtained in this case. The licence began in 1877, and continued until 1884, when a lease was issued, which in 1889 was converted into a freehold. The defendant Shire came into existence in 1878. The country where the plaintiff's land was situated was then rough and unfrequented. There was, as was usual, a surveyed road, marked off on the Government plans and maps, passing along the northern and eastern boundaries of the land, but which it is said was impracticable, and it was therefore desired to make a short cut through the plaintiff's land from north to south. One of the conditions of the licence was that during its currency the Government might resume any portion of the land for a public road upon returning to the licensee a proportionate part of the rent paid, and it was stipulated by the licence that there should be a similar condition in the lease when it was issued. As a matter of fact no such condition was inserted in the lease.
Another condition of the licence was that the land should be fenced, and in 1879 the plaintiff's land was fenced, at any rate along the northern boundary. In that year one Farley blazed a track over the plaintiff's land and on to Mirboo, and that track afterwards became the road now in question. Farley's work was paid for by subscriptions received from the neighbours. In August 1879, the ratepayers presented a petition to the Shire Council asking that the road blazed by Farley might be cleared and proclaimed a main road. In the same month the Shire Council wrote asking the Lands Department to have the roads in the Shire surveyed, and on 13th September 1879, the Department wrote that one Lardner had been instructed to survey the roads in the Shire. As a matter of fact Lardner surveyed this particular road following more or less closely the track blazed by Farley. In the same month tenders were called by the Council for clearing part of the track to Mirboo, including the portion through the plaintiff's land, and portion of it, including that through the plaintiff's land, was cleared at the Council's expense. During this time Turner, the licensee, was residing on the land, as was required by the licence, and he offered no objection to this work being done.
It is said that that is evidence of dedication of this highway by Turner to the public. We must bear in mind that dedication means that the owner of the land intends to divest himself of any beneficial ownership of the soil, and to give the land to the public for the purposes of a highway. It may be that as to England that statement is a little too wide, for there the owner retains the right of grazing on the land, but in Victoria under the Local Government Act 1874 then in force, if land was dedicated to the public as a highway, the owner ceased to have even the right of grazing on the land dedicated. Ought we then to infer that Turner intended to dedicate this road to the public? It was contended that the nature of his title was such that he could not dedicate even if he desired to do so, because during the continuance of his licence he was incapable of making any alienation of any portion of land. I will assume for the present purpose that, if a licensee of land under the Land Act 1869 deliberately and by unequivocal acts indicated his intention to make a present of part of his land to the public for a road, and remained there and allowed that road to be used until the expiration of his licence, during the continuance of his lease, and after he obtained the freehold, there would be a complete dedication of the road either by reason of the original laying out of the road, or, as argued by the Attorney-General, on the ground of estoppel.
But it is not necessary to have recourse to the principle of estoppel, because in such a case very little user of the road by the public would be evidence of dedication, the intention to make a present of the road to the public being regarded as a continuing dedication which would become operative as soon as the licensee obtained the freehold. I will assume also that Turner did allow the public to use the road, and that the same result would follow, no matter through how many hands the title to the land passed before the freehold was acquired. What then ought we to infer as to the state of Turner's mind at the time he was licensee? He would assume that his allowing the public to use the road was a matter entirely unimportant. The Government could take the land back from him on paying him the few shillings he had paid in respect of it by way of rent, and the local authority could take it from him, either with or without the assistance of the Government, in which case also Turner would be compensated.
Under those circumstances it appears to me that the only proper inference is that Turner believed that the proper authorities intended to take the land for the road in the manner provided by Statute, and that he acquiesced in that being done, and made no objection to the public using the road in the meanwhile, knowing that in due time he would receive proper compensation for the land so taken; in other words, that there was a tacit agreement between Turner and the local authority that, pending the necessary steps being taken for completing the title of that authority to the road, he would allow the public to use the road. In that respect I think the case falls exactly within Barraclough v. Johnson. [F16] I should add that this road was not a mere track through the block of land, but was a definite strip of land, one chain wide from one end to the other of that block, the angles of the turns in it being marked by posts in the ordinary way, so that its boundaries were visible to persons passing along it.
That being the history of the inception of the road, how long might the owner continue to allow the public to use it without losing his rights? What necessary consequences would follow from his continuing to allow the public to use it? The natural thing that would happen would be that the local authority would treat the road as any other road in the Shire, and would go on spending money upon it, and the public would go on using it. The road was public enough. A sign-post stood at the turn-off from the road along the northern boundary of the block, and on it was written "Mirboo Road," but that boundary was kept fenced. In 1884, the licence was superseded by a lease, which was issued to Turner on 2nd June. In July, the local authority requested the Government to declare certain roads in the Shire public highways, including, no doubt, the road now under consideration. On 23rd August the Government informed the Shire Council that they considered the proclaiming of the roads should be delayed until all were surveyed. That was the state of things in 1884. There was still the tacit agreement that Turner would allow the public to use the road pending the completion of the arrangements for the dedication of the road by the local authority. The land owner did not interfere with the user, but the dedication contemplated at that time was by the Shire and not by the land owner.
It is contended that the user by the public is quite inconsistent with any such notion-apart from the authority of Barraclough v. Johnson. [F17] The analogy of the occupation of land without any title, but accompanied by payment of rent, from which a tenancy may be inferred, is very close. I will refer to some observations made in In re Northumberland Avenue Hotel Co. [F18] That was a case in which a company, under the erroneous belief that an agreement entered into before it came into existence was binding upon it, took possession of certain land, expended money in building, and acted upon the agreement. It was sought to establish that the company was bound by the agreement, but it was held that the agreement was incapable of confirmation by the company, and that the acts of the company were not evidence of a fresh agreement. Cotton L.J. said: [F19]
"The case is entirely different from those cases which have been referred to where the Court, finding a person in possession of land of a corporation, and paying rent, has held that there was a contract of tenancy. There was no mode of explaining why the occupier was there, except a tenancy, unless he was to be treated as a trespasser. The receipt of rent by the corporation negatived his being a trespasser, and it was therefore held that there was a tenancy. Here we can account, and in my opinion we ought to account, for the possession by the company, and for what it has done, by reference to the agreement of the 24th of July, which the directors erroneously and wrongly assumed to be binding upon them. We are not therefore authorized to infer a contract as it was inferred in those cases where there was no other explanation of the conduct of the parties."
In some of the highway cases it has been said that one reason for presuming dedication is that, if there had not been dedication, the public passing over the land would be trespassers. That argument has no application in this case, because all the acts done in this case are referable to an intended dedication either by the Crown or by the local authority. I am therefore of opinion that up to the time of the issue of the lease there was no dedication by Turner.
In 1886 Turner mortgaged his lease. I may say at once that, in my opinion, a mortgagor cannot without the consent of his mortgagee dedicate a road over the mortgaged property. There is no more reason why he should be able to do so than there is reason why a lessee should be able to dedicate without the consent of his lessor. From that time onward until 1901 the land continued to be under mortgage, with the exception of a short period in 1889 when Turner ceased to be the lessee on the transfer of the land by the mortgagees to one Dibdin. In that same year the Crown grant was issued to Dibdin, who, nine days afterwards, executed two mortgages of the land. So long as Turner was on the land he was a party to the agreement with the Shire, and I think there was no dedication of the land by him. I think that under the circumstances there is no more evidence of dedication by Dibdin, while lessee, than by Turner. From the time Dibdin acquired the fee it was always under mortgage until 1901. I will assume that the succeeding owners of the land were bound to take notice of its actual condition.
That being so, of what had they notice? They had notice that there was a track through the land which was used by the public, and that the track was marked on the maps of the locality which were prepared sooner or later. They would also have notice that the track was such as to indicate that some person in authority had laid it out. I will also assume that the mortgagees are equally bound, and are to be taken to have known all that was going on. On these assumptions the proper inference to be drawn is, in my opinion, that the mortgagees thought that the road had been proclaimed, or that it had been surveyed by the proper authorities with the intention that it should be proclaimed, and that in either case they could not successfully resist the resumption of the land. There was nothing then to call for the exercise of their volition as to dedication. The Attorney-General put it to us that the mortgagees must be taken either to have known or not to have known the exact facts. I agree.
Suppose they did know the exact facts, then they knew that this piece of land was being used by the public under something in the nature of an executory agreement by which the local authority undertook by proper legal means to acquire the land and dedicate it to the public. That agreement being executory would continue, without the imputation to the land owner of an intention to dedicate, until it came to an end by the proclamation of the road, or by repudiation, but as soon as the local authority repudiated the agreement, the whole transaction came to an end, and one must look for a fresh dedication subsequently. If, on the other hand, the mortgagees did not know the exact facts, if they knew no more than they could see by going upon the land, bearing in mind the period of ten years which had elapsed since the road was surveyed, that the land was practically waste land, and that the fences had been destroyed in one of the fires which swept over the country, they would find indications that a road had been cleared and marked out by some statutory authority and was used by the public.
The inference they would draw would be, either that the road had been proclaimed, or that proceedings for having the road proclaimed were in progress. The case is like that where a man builds a house upon the land of another by the mutual mistake of himself and that other. In such a case the owner of the land would not be estopped from asserting his title to the land. So, whichever way you take it, whether the mortgagees knew or did not know all that had taken place, the notion of dedication is absolutely excluded by the facts of this case. I am of opinion therefore, for these reasons, that, so far from there being conclusive evidence of dedication by the successive owners or mortgagees of this land, the facts almost conclusively negative any such presumption.
In the view I take of the case it is not necessary to deal with the view put forward that possibly a qualified dedication might be inferred, since we know the actual facts, viz., a tacit agreement to allow that particular piece of land to be taken by the local authority and used by the public as a road until the road was proclaimed. But I think that you can hardly imagine a road being dedicated under the laws of this State subject to the owner being allowed to keep a gate at the end of it.
The only other question in the case is one of damages. The learned Judge who heard the case thought that, under the circumstances, the damages claimed, £300, were the natural and reasonable consequences of the acts of the Shire. The land was used as a paddock in which cattle were kept. The local authority called upon the plaintiff to remove the fence across the road and threatened that unless he did they would enforce the statutory penalties against him. The plaintiff did not remove the fence and the Shire Council then proceeded to take down the whole one chain length of fence and to remove the posts. It is suggested that it would have been reasonable for the plaintiff to put up another fence in order to keep in his cattle. But, after the intimation he had received from the Council, he might reasonably have believed that they would pull it down again. The learned Judge, after considering all the facts, believed the evidence for the plaintiff that he had really suffered the damages which were awarded. For my part I see no reason for questioning his decision. I think these damages might reasonably have followed upon the unlawful acts of the defendants. I am therefore of opinion that the appeal should be dismissed.