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

Judges: Griffith CJ
Barton J

O'Connor J

Judgment date: 5 June 1906

Decision by:
O'Connor J

I also am of opinion that the judgment of Beckett J. must be affirmed.

The law laid down by him I entirely adopt, and I think there can be no question that he rightly applied that law to the facts. The learned Chief Justice has gone so fully into the whole matter that it is not necessary for me to say more than a few words with regard to the law or the inferences to be drawn from the facts as placed before us. The keynote of the law in regard to dedication of a highway by user is to be found in the few words of Patteson J. in Barraclough v. Johnson: ^[F27]

"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."

There cannot, therefore, be such a thing as turning this land into a highway without some intention on Turner's part. How is that intention to be gathered? It may be from the uninterrupted user by the public without objection, if that user is not otherwise explained.

There can be no question that the user in this case is sufficient, if unexplained, to raise the inference of dedication. It is of no moment that only a few persons used the road, or that the road offered access to only a few places. The evidence is that the user was by the public as they wished, and for any purpose they thought necessary. Under the circumstances there was, in the absence of other explanation of the use of the road by the public, sufficient evidence for the Judge, if he thought fit, to draw the conclusion that there had been a dedication by user. But there was another explanation of the user, and in reference to that a most important question is how the user was initiated. That was the inquiry to which the Judges in Barraclough v. Johnson ^[F28] directed themselves in the first instance, and although there was in that case an uninterrupted user for about nineteen years, they found that it had originated in an agreement, and had continued under it by a licence which the landowner might revoke at any time.

So it is most important to consider whether, in this case, the user did not originate and continue under a licence which could be withdrawn at any time by the owner of the land for the time being if he thought fit to assert his right.

The Shire was constituted in 1878. So that in that year, when, according to the evidence, the user first took place, the Shire was newly charged with the administration of the district, then apparently rather badly off for roads. In 1879 Turner got his second licence, having got his first one in 1877. It must be presumed that he complied with the conditions of his licence as to fencing and residence. What then was the position of the Shire on the one hand, and of Turner on the other hand, in 1879?

Turner held the land under a title which gave him no right to dedicate to the public any road over his land. If any dedication of such a road could be inferred, it must have been a dedication in which Turner and the Crown concurred. I may say here that I see no reason why in Victoria there could not be dedication of a road by the Crown in any of the ways in which a road may be dedicated by the Crown in England. It is laid down in many cases, and was regarded as settled law in Turner v. Walsh ^[F29] that the Crown in Australia, apart from local Statutes, may dedicate a road by allowing user by the public of Crown lands in exactly the same way as an individual may dedicate. It was urged by Mr. Mitchell that sec. 4 of the Land Act 1869 altered the law in Victoria in that respect. I am unable to come to that conclusion. It appears to me, although it is not necessary to decide the question in this case, that there is nothing in that Act to prevent the Crown, if there is proper evidence of dedication, from dedicating by user in the same way as an individual may dedicate. Whether that would be so in New South Wales, where the provisions of the corresponding Act are quite different, it is not necessary to say. So far as Victoria is concerned, there is no reason why the same rights of dedication as exist against the Crown in England should not exist here.

That being the position of the owner of the land and the Crown, let us look at that of the Shire. It had the right to take possession of the land and itself to dedicate the road. It also had power to request the Government to proclaim the road, and there was in the licence under which Turner held an express power reserved to the Government to proclaim a road through the land.

Such being the situation of the parties, it is apparent that in 1879 Turner's neighbours on the Mirboo side desired to get a road out from their selections, and the evidence shows that the only practicable route was through his property. So we find that in 1879 a track was blazed along the course of the present road by Farley, who was paid for his work by Rolls, the President of the Shire, not out of the Shire funds, but by subscriptions received from the settlers in the neighbourhood. Immediately afterwards, the ratepayers petitioned the Council that this road as it was blazed should be cleared and proclaimed a main road, and the Council thereupon made a request to the Government to have all the new and projected roads in the Shire marked off and surveyed. Shortly afterwards the Government sent an officer to survey this road among others. In the meantime the Council had called for tenders for clearing the road, and under their direction, it was cleared along the track blazed by Farley. So that, while waiting for Government action, the Shire Council, in so far as they could, carried out the request of the ratepayers, took over the land, formed the road and treated it in exactly the same way as any other road in the Shire, and apparently they have so treated it ever since. From time to time they have spent the Shire's money on it in side-cutting, laying corduroy, and scrub cutting.

Such being the circumstances in which the user of portion of this land as a road was initiated, the first question to be determined is what is to be inferred as to Turner's intention to dedicate from the taking over of the road, the clearing it, and the user of it by the public during that time? It appears to me those facts under the circumstances furnish no ground of inference that Turner intended to dedicate a road at that time. On the contrary, the most natural inference is that Turner would not assume that the Council was doing what would be an utterly illegal act, unless it was intended to be followed up by a proclamation of the road by the Government or by the Shire, in either of which cases Turner had a right to be compensated under the Local Government Act 1874. As far as the initiation of the road is concerned, it appears to me the only reasonable inference to be drawn is that Turner regarded it as practically taken over by the Shire Council, and that, pending the completion of arrangements, he permitted the public to use the road, and the public did use it as I assume they would use any other public road.

That condition of things continued until 1884, when Turner got his lease. As far as the Crown is concerned all the evidence is against the Crown having made any dedication. In the first place, the Government in 1879 were requested by the Shire to have this road surveyed as a public road. In 1884 another request was made asking them to have all lands taken and used by the Shire as roads proclaimed as public roads under sec. 363 of the Local Government Act 1874, and, in reply to that request, in August 1884 the Shire got a letter from the Lands Department referring to this Mirboo Road, and stating that the proclamation of that road would be delayed until all the roads in the Shire had been surveyed. How is it possible, under those circumstances, to infer that the Crown intended to dedicate this road when it had been asked to proclaim it as a road taken by the Shire in the ordinary way?

Up to 1884, therefore, it appears to me quite impossible reasonably to come to the conclusion that there was an intention, either on the part of Turner, or on the part of the Crown, to dedicate this road, or that the user of the road can be referred in any way to any such intention.

Turner held the land until 1886, and then new interests came into existence. I do not intend to deal with that part of the case in any detail. It is only necessary to say that, where land is under mortgage, the mortgagor can no more assent to the dedication of a road by user than he can give an interest in the land of any other kind to a third person without the mortgagee's consent express or implied. Therefore, if it is desired to prove dedication by user while the land was subject to mortgage, it must be shown that there was knowledge of the user on the part of the mortgagees, just as it would be necessary to show knowledge on the part of a lessor of land under similar circumstances. It appears to me that there was evidence from which, under certain circumstances, it might be inferred that during the existence of the lease the mortgagees had knowledge that the land was being used by the public as a road. But knowledge alone is insufficient unless the inference of dedication can, under the circumstances, be drawn from the fact of user with the knowledge of the mortgagees. On that part of the case I entirely concur in the view taken by the learned Chief Justice. What would the mortgagees see, assuming that they had the opportunity of observing what was going on on the land? They would see that this road appeared to be properly surveyed and properly maintained for a road in such a locality, and that in all respects it was used by the public in the same way as any other public road in the Shire. Assuming them to have no other knowledge, they would come to the conclusion that the road was a public road, and as such had a lawful origin. They would not necessarily assume that there had been a dedication by the owner, nor is there evidence in fact which compelled such an assumption.

But I do not think it necessary to consider that question because it appears to me the origin of the road was merely a licence on the part of the first owner Turner to the public to use the road pending the completion of arrangements for proclaiming the road. Any man who succeeded Turner was entitled to take up Turner's position, and at any period in the chain of title when the owner of the land for the time being thought fit to put an end to the licence, he was entitled to do so. Therefore, so far as all the mortgagees and the owners are concerned, even if there was any evidence of their knowledge of user, it does not affect the question as the licence might be withdrawn at any time.

That carries on the history of the title until 1901, when the Trustees Executors and Agency Co. transferred to Davies. It is clear that the company then knew that there was no title in the Shire to the road, and they intimated to Davies that they intended to take steps to block it. From that time on there was a continuing assertion of title by the parties who occupied the land, and a denial of the right of the Shire to have a road except upon payment. So that it is unnecessary to carry the matter beyond that time. Therefore, looking at the matter from the point of user, I think that Beckett J. came to a right conclusion.

There is one other view of the matter with which I should like to deal, that is the view put by the Attorney-General, that the later owners of the land were estopped from taking up the position that the land was not dedicated. In supporting that contention he relied on the principle laid down in Ramsden v. Dyson: ^[F30]

"If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner."

The essential elements to create an estoppel in a case of that kind are wanting here. In the first place, I am satisfied that the Shire knew what the position of this road was, because it must be taken that they knew its history. It is clear from that history that there was no dedication to the public, but that the Shire was only allowed to take possession of the road for the purpose of having it proclaimed in the ordinary way. On the other hand, the owners and mortgagees believed it to be a public road proclaimed or intended to be proclaimed in the ordinary way. Under these circumstances, I think it is impossible to apply the doctrine in Ramsden v. Dyson, ^[F31] and therefore that there was no estoppel. For these reasons I have come to the conclusion that the judgment of Beckett J. is right.

Appeal dismissed with costs.