President & c. of the Shire of Narracan v Leviston

(1906) 3 CLR 846
[1906]12ALR294
[1906] VLR 553
[1906] HCA 34

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(Judgment by: Barton J)

Between: President & c. of the Shire of Narracan - Defendants, Appellants
And: Leviston - Plaintiff, Respondent

Court:

Judges: Griffith CJ

Barton JO'Connor J

Judgment date: 5 June 1906

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Judgment by:
Barton J

The learned Chief Justice has gone fully into the facts, and therefore it is not necessary for me to state them with particularity. I have very carefully considered the judgment of Beckett J., and I am of opinion that it leaves nothing to be complained of either as to the law or as to the facts. In the case of Lawson v. Weston, ^[F20] Sir Alfred Stephen C.J. of N.S.W., stated the law to the jury as follows:

"1st.

To constitute the dedication of a roadway to the public, there must have existed, in the mind of the owner of the soil, an intention to dedicate it. Mere sufferance of an user, therefore, by negligence, or as a matter of temporary favour, will not amount to dedication.

2nd.

But, frequent and long continued user of the roadway, by the public, is ordinarily evidence of a dedication; for negligence on the part of the owner, or ignorance of his rights, or indifference to them, will not be presumed. This evidence will be more or less conclusive, according to circumstances; but particularly, according to the length of the time, and the number of instances of user.

3rd.

Nevertheless, however long that time or numerous those instances, any open or distinct circumstances, done or caused by the owner, indicating and notifying an intention not to dedicate, will be strong evidence against the dedication. But it is essential to observe, that if, at any time, by any owner, a dedication (that is, a designed and intentional dedication) took place, that dedication could not afterwards be recalled, either by him or any subsequent owner.

4th.

The act or circumstances must be, in fact, for the purpose of exercising the right of dissent, and notifying that right to the public. The putting up of a fence across the road, so as to prevent access to it, would be one of the strongest instances of such an act; and, if there were a gateway left in it, but the gate was generally or often kept locked, the inference from the act would remain the same.

The erection of such a fence, however, with a slip rail in it at the point of intersection with the road, or a gate secured by a hasp only, may have been for no purpose of dissent and obstruction. It may have been, possibly, for the very purpose of saving the right of the public, while at the same time protecting the owner, by preventing cattle from trespassing over the land on either side. In the absence of any such act or circumstance for the purpose of expressing and notifying dissent, the user by the public is evidence that the owner intended a dedication.

5th.

As the purpose must be to notify dissent or non-dedication, the means used should be such as to answer that purpose, in order that the public, being aware of the denial of their right to use the road, may assert that right by forcibly removing the obstruction, or otherwise opposing the act done in disparagement of the right. If, therefore, from the nature of the interruption (and from the fact of similar instances of obstruction being common, in known and recognized public roads), the public would have been likely to misunderstand its purpose and object, the fact of the obstruction itself will be of much less value obviously than an interruption, decided and unequivocal in its character."

That statement of the law seems to be in accordance with the authorities as we have had them cited to us, and as they are compared and dissected in the notes to Dovaston v. Payne, ^[F21] and with the statement quoted by the Chief Justice from the judgment of Parke B. in Poole v. Huskinson, ^[F22] viz.:

"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."

Now, the defendant had to make out that there was a right of way over the plaintiff's land. Beckett J. heard the facts on both sides, and we have those facts before us, and one may say that there was evidence both ways.

The learned Judge below came to a conclusion upon that evidence, the reasonableness of which it is not possible to doubt. His statement of the law does not differ materially from that which I have read. Ordinarily speaking the dedication of a highway is to be evidenced by open and unexplained user by the public as of right, from which user, with the knowledge of the owner, his intention to dedicate to the public may be inferred by a jury. I do not think it necessary to determine the question whether the reversioner (in this case the Crown) can be bound by the acquiescence of the tenant. In this connection I will merely mention some remarks of Le Blanc J. in Daniel v. North. ^[F23] That was a case in which lights had been "put out," as it is called, and enjoyed without interruption for above twenty years, during the occupation of the opposite premises by a tenant, and it was held that that would not conclude the landlord of such opposite premises, without evidence of his knowledge of the fact, which would be the foundation of presuming a grant against him; and consequently would not conclude a succeeding tenant who was in possession under such landlord from building up against such encroaching lights. Le Blanc J. said:

"It is true, that presumptions are sometimes made against the owners of land, during the possession and by the acquiescence of their tenants, as in the instances alluded to, of rights of way and of common; but that happens, because the tenant suffers an immediate and palpable injury to his own possession, and therefore is presumed to be upon the alert to guard the rights of his landlord as well as his own, and to make common cause with him; but the same cannot be said of lights put out by neighbours of the tenant, in which he may probably take no concern, as he may have no immediate interest at stake."

I mention that passage because the question of the effect of the tenant's acquiescence as against the reversioner, where it is established as a fact, is one which may become very proper for decision, but it is not necessarily involved in this case, because I am of the opinion, with Beckett J., that there was not such an acquiescence by Turner as would raise the question which under such circumstances would arise. The learned Chief Justice has referred with sufficient fulness to the Statute laws existing in Victoria and affecting this case. It seems to me the matter is in this position: There are a number of acts proved in evidence which are susceptible of one or other of two interpretations. One of them is that there was an intention on the part of the successive owners of this land to dedicate this track as a highway. But the same body of evidence is open to another interpretation, viz., that the holder of the land might reasonably look forward, under the circumstances of the acts being performed by the Shire and other persons, to such a statutory dealing with the question of a public road as would entitle him to compensation together with a fence on each side of the road. It was open to aBeckett J., dealing with these two interpretations of the facts, to come to the conclusion either that there was an animus dedicandi according to the common law, or that the right complexion to be put upon those acts was that the user was by the owner's indulgence, and attributable to the intended statutory acquisition of a road by the Shire. I am inclined to think that the facts are stronger in favour of the latter interpretation than of the former. The learned Judge thought so too, and, as his decision is, at least prima facie, right, we should not disturb it. He said in the course of his judgment: ^[F24]

"The cases in which the intention has been presumed from long-continued user differ widely from the present. Dedication is a question for a jury, in whose place I stood. If I had had a jury before me at the trial, it would not have been proper for me on the evidence there given to have directed them to find dedication; I should have left it to them to say aye or no upon the question. Standing in their place, I find that there has been no dedication.

In considering whether there was dedication in fact intended or to be imputed by inference of law, I have had regard to the circumstances under which the track was first formed and continued to be used, and to the powers possessed by the Shire under Local Government Acts and by the Crown under Land Acts. The first owner of the land had distinct notice in his licence of the right of the Governor in Council to resume land for a highway, and found persons employed by the Shire, the road-making authority, forming a track across his land. He and those who succeeded him would naturally have assumed that these acts were done, as in fact they were done, with a view to the creation of a highway by the exercise of statutory authority which would entitle the owner in varying circumstances to varying compensation. Should he lose these rights because he did not treat the servants of the Shire as trespassers and forbid the public to use the road until it was actually proclaimed? Is he to be considered as giving because he did not resist those who had the power to take?

A decision that absence of opposition by a landowner, in a case like the present, amounts to dedication, would, in my view, be not merely bad in law, but mischievous in its consequences, by forcing landowners to preserve their rights by obstructing every attempt to form or use a road until a road had been legally created by the exercise of statutory authority. Such an attitude on the part of landowners would impede the progress of settlement."

Mutatis mutandis there is in that passage a very strong reflex of the remarks of Bowen L.J., in Blount v. Layard, ^[F25] as cited by Buckley J. in Behrens v. Richards: ^[F26]

"that 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."

So that by placing too liberal a construction in favour of the public and against the landowner upon acts of passage which are tolerated by him, there is a danger lest, in the sparsely settled districts of a country like this, where roads are few and unmade, and mutual concessions on the part of the landowners and the public are necessary, landowners should be put upon the defensive, and be forced to set obstructions in the way of every act which, in a long course of time, might be construed as the assertion of a right of public highway. Taking the whole case together, and concurring generally with the learned Chief Justice, I am of opinion that Beckett J., has stated the law with accuracy and come to an unassailable conclusion on the facts. I therefore agree that this appeal should be dismissed.