Delohery v Permanent Trustee Company of NSW [1904] HCA 10; (1904) 1 CLR 283 (30 May 1904)

HIGH COURT OF AUSTRALIA

Delohery Plaintiff, Appellant; and Permanent Trustee Co. of New South Wales Defendants. Respondents.

H C of A

On appeal from the Supreme court of New South Wales.

30 May 1904

Griffith, C.J., Barton and O'Connor, JJ.

Knox, Delohery and Hope Johnston for appellant.

Gordon K.C., and Rich, for respondents.

Gordon K.C.,

Knox, for the appellant.

Gordon, K.C., for the respondents.

Rich followed.

Knox in reply.

The judgment of the Court was delivered by

30th May

Griffith, C.J.

This case, which is an appeal from a decree of the Chief Judge in Equity, allowing the defendants' demurrer, and dismissing the plaintiff's suit with costs, raises the important question whether the law of England as to ancient lights is part of the law introduced into New South Wales, either upon the settlement of that colony, or by the Statute, 9 Geo. IV. c. 83 (passed in 1828), which provides (sec. 24), that all laws and Statutes in force within the realm of England at the time of the passing of the Act "shall be applied in the administration of justice in the Courts of New South Wales and Van Dieman's Land respectively, so far as the same can be applied in the said colonies." The question is, therefore, one of interest, not only to the State of New South Wales, but also to the States of Victoria and Queensland, which in 1828 formed part of New South Wales, and to the State of Tasmania, to which the Act also applies.

The plaintiff by his statement of claim alleged that he was entitled in fee to a parcel of land on which was erected a building, having in it windows for which he had enjoyed the free and uninterrupted access of light for more than 45 years over adjoining land now belonging to the defendants, and upon which the defendants had begun to erect buildings, which would have the effect of substantially interfering with the access of light to the plaintiff's windows.

Paragraph 4 is as follows:—

The plaintiff further says he has a prescriptive right to the said free and uninterrupted access of light and air to the said windows and openings over the defendant company's land, and that such right was granted to the plaintiff or his predecessors in title by a grant from or agreement with the defendant company or their predecessors in title, but the said agreement has been lost, and save as aforesaid the plaintiff is unable to state the particulars of the said grant or agreement.

It was admitted that this last allegation was not an allegation of fact but of law, i.e., that the Court ought, after the lapse of 20 years, to presume the former existence of a lost grant. On a motion for injunction the defendants demurred ore tenus, and it was agreed that the motion should be turned into a motion for decree. The learned Judge, in his judgment, after stating the facts, goes on to say—"This raises the question whether the doctrine of lost grant applies in this State, that is, whether the Court ought to hold that after 20 years' use a man has a right to the passage of light to his house over the land of his neighbours;" and, after quoting sec. 24 of the Act 9 Geo. IV. c. 83, proceeds:—"As there is no local law dealing with the matter, the question is whether the doctrine of lost grant is applicable to this State. It is purely a legal fiction, for, in almost every case, I suppose, when a jury is asked to find, or the Judge finds, a lost grant, it is perfectly wellknown that no such grant ever existed. The employment of such a fiction may be beneficial or otherwise, according to the circumstances of time and place ... This particular fiction really amounts to making a law that after 20 years' enjoyment of access of light over adjoining land the landholder shall have a right to such access. In England it must be taken that the employment of the legal fiction was beneficial, for the legislature has removed the necessity for having recourse to it by making the law as above indicated. See 2 & 3 Wm. IV. c. 71, sec. 3. ... But in this State no such Act has been adopted. It is left, therefore, to the Court to say whether the use of the fiction in this country would be beneficial or not; and, on the whole, I think that it would not." The learned Judge then referred to the case of Sheehy v. Edwards, Dunlop & Co., 13 W.N. (N.S.W.), 166, before C. J. Manning, J., in which that learned Judge decided against the plaintiff's claim to an ancient light, and the case of Robinson v. Hoskins (heard at nisi prius before Innes, J., in 1883), in which the plaintiff recovered damages for interruption to light, and to the fact that the doctrine had been rejected in a large number of the American States, and added, "In my opinion it ought not to be adopted here."

If the question for our determination were only whether the legal doctrine or fiction of a lost grant in such cases is part of the substantive law introduced into New South Wales, either on settlement, or by the Act of 9 Geo. IV. c. 83, we might have some difficulty in coming to a different conclusion from that arrived at by the learned Chief Judge.

There is indeed ground for saying that the doctrine of a lost grant never formed part of the substantive law of England, but was, at best, and for a short time only, adopted as an artificial rule of pleading, as will appear from the history of the law on the subject of ancient lights to which we shall presently refer. And the doctrine has of late years been much discredited in England, even if it is not now definitely discarded. In Angus v. Dalton (L.R., 3 Q.B.D., 85, a case of an easement of lateral support) Lush, J., spoke of it as a "revolting fiction." In Earl de la Warr v. Miles (17 Ch. D., 535) Brett, L.J., said (p. 590-1):—"The doctrine with regard to the presumption of lost grants is at the present moment the subject of much controversy. For my part, I have always been of opinion, and until corrected I must hold to that opinion, that if a Judge is asked to find the fact of a grant, and to say that it has been lost, he must have ground for believing that it was so." In Wheaton v. Maple & Co. (1893, 3 Ch., 48) Lopes, L.J., said (p. 67):—"For convenience sake the fiction of a lost grant is very often pressed into the service; but to presume a grant made by the Crown since 1852 and lost, would be overtaxing the credulity of the most credulous, and would be making a demand too extravagant even for the elasticity of this patient and accommodating fiction."

But the rejection of the fiction of a lost grant does not conclude the question whether the law of ancient lights is part of the law of New South Wales. The law as to the acquisition of the right to light is a branch of the law of prescription, and the real question for our decision is whether this branch of the English law of real property became part of the law of New South Wales, either on settlement, or by the Statute of Geo. IV. If it was part of the substantive law of England in 1828, there is, primâ facie, no reason why it should form an exception from the general rule, which has never been in controversy, that the English law relating to real property, as regards its acquisition, disposition, and devolution, became part of the law of New South Wales. It has never, for instance, been doubted that in New South Wales incorporeal hereditaments can be created, or that they lie, as it is said, in grant, or that a highway may be effectually dedicated without a written instrument (see Turner v. Walsh, L.R. 6 A.C., 636). And very different considerations must weigh with the Court in determining whether a particular branch of the substantive law of real property was introduced on settlement, or by the Act of 9 Geo. IV., from those which would affect its judgment on a question whether a particular fiction of law was so introduced.

Now, title by prescription is a very ancient branch of the real property law of England (see Blackstone's Commentaries, Book ii., c. 17): as it was a well-known branch of the Roman law from which the English law on the subject was, undoubtedly, to a great extent, derived. In the Roman law it was called "Usucapio," which is defined in the Digest (Lib. 41, tit. 3, De usurpationibus et usucapionibus, Art. 3) to be "adjectio dominii per continuationem possessionis temporis lege definiti," i.e., the acquisition of a right of property by the continuance of possession for a time prescribed by law. In Art. 1 of the same book and title the reason is given: "Bono publico usucapio introducta est, ne scilicet quarundam rerum diu et fere semper incerta dominia essent, quum sufficeret dominis ad inquirendas res suas statuti temporis spatium," i.e., title by prescription is introduced (into the law) for the public benefit, that is to say, in order that the rights of property with respect to certain things may not remain uncertain for a long time and practically for ever, when the space of a definite and prescribed time would be "sufficient to enable the true owners to ascertain their rights."

The English common law is thus stated by Sir Edward Coke:—"Both to customs and prescriptions, these two things are incidents inseparable, viz., possession or usage, and time." Possession must have three qualities, it must be long, continual, and peaceable; for it is said, "transferuntur dominia, sine titulo et traditione, per usucapionem, scilicet per longam, continuam, et pacificam possessionem. Longa, i.e., per spatium temporis per legem definitum. Continuam, dico, ita quod non sit legitime interrupta. Pacificam, dico quia si contentiosa fuerit, idem erit quod prius, si contentio fuerit justa. Longus usus, nee per vim, nec clam, nec precario" (1 Co. Lit., 113b, 114a). The Latin, which is a quotation from Bracton, may be thus translated:—"Rights of property may be transferred, without instrument of title and without actual delivery of possession, by means of prescription—that is, by long, continual, and peaceful possession. Long, that is, for a space of time prescribed by law. By continual I mean in such a manner that it is not lawfully interrupted. I say peaceful, for, if it was contentious, things will be as before, if the contention was justifiable. Long use, neither by force, nor secretly, nor casually." And, commenting on Littleton's words, "Time out of mind, &c., and of title by prescription which is all one in law," he says:—"So as the time prescribed or defined by law is time whereof there is no memory of man to the contrary" (114b.)

There has never been any controversy as to the accuracy of this statement of the law. But there have been considerable changes in the interpretation put by the Courts upon the word "long." At first, as Coke says, "long" possession meant possession from the time of legal memory. This was for some time held to be the same as that limited by the Statute of Westminster (A.D. 1275) for bringing a writ of right, namely, the accession of Richard I., a.d. 1189. As early as the time of Edward IV. this, it is said, was found to be an inconvenient rule. In a.d. 1606 it was held, in the case of Bedle v. Beard (12 Co. Rep., 5), (a case of advowson), that possession for 303 years was sufficient ground for presuming a grant of the advowson from the Crown. In 1587 (31 Eliz.) the possibility of acquiring a right to light by prescription had been recognized, (Bury v. Pope, Cro., Eliz. 118, S.C., 1 Leon., 168), in which case, however, a window made in the reign of Queen Mary, i.e., not less than 30 years before, was held not to have acquired the status of an ancient window. In the same year, in the case of Bland v. Mosely (cited in William Aldred's Case, 9 Rep., 57a) the right of an owner of an ancient house to prevent obstruction to his light was declared. These cases were decided before the Statute of Limitations, 21 Jac. I., c. 16 (A.D. 1623). Easements were not within that Statute; but soon after it was passed the Courts appear to have thought that the period of limitation prescribed in cases of ejectment might properly be adopted as a guide to what would be a reasonable period to be considered "long" possession under the doctrine of prescription. The later history of the development of this branch of the subject, so far as regards the easement of light, is to be found in the notes to Yard v. Ford in 2 Wms. Saund., p. 175a, which I will read. "In Lewis v. Price, Worcester Spring Assizes 1761, which was an action on the case for stopping and obstructing the plaintiff's lights, Wilmot, J., said that where a house has been built 40 years and has had lights at the end of it, if the owner of the adjoining ground builds against them so as to obstruct them, an action lies; and this is founded on the same reason as when they have been immemorial, for this is long enough to induce a presumption that there was originally some agreement between the parties; and he said that 20 years is sufficient to give a man a title in ejectment, on which he may recover the house itself; and he saw no reason why it should not be sufficient to entitle him to any easement belonging to the house. So, in an action on the case for stopping up ancient lights, the defendant attempted to show that the lights did not exist more than sixty years. Wilmot, C.J., said that if a man has been in possession of a house with lights belonging to it for fifty or sixty years, no man can stop up those lights, possession for such a length of time amounts to a grant of the liberty of making them; it is evidence of an agreement to make them. If I am in possession of an estate for so long a period as sixty years, I could not be disturbed even by a writ of right, the highest writ in the law. If my possession of the house cannot be disturbed shall I be disturbed in my lights? It would be absurd. But the action can only be maintained for damages as far as the lights originally extended, and not for an increase of light by enlarging the windows recently; and I should think a much shorter time than sixty years might be sufficient; but here there has been a possession of that time; Dougal v. Wilson, Sittings, C.B. Trin., 9 G., 3 (1769)."

"So in an action on the case for obstructing the plaintiff's lights, who proved an uninterrupted possession of them for twenty-five years past, Gould, J., who tried the cause, then called upon the defendant to show cause if he could answer this, because, if unanswered, he thought it sufficient to establish the plaintiff's case. The defendant upon this offered a grant from the former owner of the defendant's premises to the plaintiff's predecessor, dated June, 1750, by which he granted him liberty to put out a particular window, and argued that, having this grant and no other, it must be presumed that plaintiff never had any other, and this would be an answer to the presumption arising from length of possession. The Judge thought the grant would not alter the case, as it related to a particular window, which was not included in the present action, and no exception of any other or reference was mentioned in the grant. The defendant then relied on the possession previous to these twenty-five years; but the Judge said that would not avail him; he thought that twenty years' possession unanswered was sufficient, and if the defendant had any evidence to explain the possession within 20 years, to show it was limited or modified, or bad in its commencement, that would be material; the defendant offered none such, and there was a verdict for the plaintiff; the Judge, however, reserved the point of law if the defendant thought fit to move the Court. Afterwards a rule to show cause why there should not be a new trial was obtained on the ground of a misdirection, because the Judge told the jury that so long an enjoyment was sufficient to give the plaintiff a right to them, although the defendant offered to prove that there were no lights there previous to that time; but that this evidence was not received, and the counsel for the rule insisted that the Judge had called the 25 years' possession an absolute bar, incapable of being overturned by any contrary proof, where it was only a presumptive proof which might be explained away; that it was a matter of fact for the jury, but the Judge left nothing to the jury, treating it as a matter of law. Lord Mansfield said:—I think there must be some mistake in the statement of what passed at the trial. The enjoyment of lights, with the defendants acquiescence for 20 years, is such decisive presumption of a right by grant or otherwise, that unless contradicted or explained, the jury ought to believe it; but it is impossible that length of time can be said to be an absolute bar, like a Statute of Limitations; it is certainly a presumptive bar which ought to go to a jury. Thus in the case of a bond there is no Statute of Limitations that bars an action upon it, but there is a time when the jury may presume the debt to be discharged, as if no interest appears to have been paid for 16 or 20 years. The same rule prevails in the case of a highway. Time immemorial itself is only presumptive evidence, for so it was held in the case of the Mayor of Kingston-upon-Hull v. Horner, [1774] EngR 84; 1 Cowp., 102. In a case before me at Maidstone, I held length of time, when unanswered and unexplained, to be a bar. Willes, J.—There was a case before me at York where I held uninterrupted possession of a pew for 20 years to be presumptive evidence merely, and that opinion was confirmed afterwards in the Court of Common Pleas. Ashurst, J.—I should have thought that it was the duty of the counsel for the defendant to have told the Judge that this evidence was only a presumptive, not an absolute bar (to which it was answered by Coke, of counsel for the defendant, that it was so, and a case was cited where 40 years were held not to be an absolute bar). Buller, J.—I incline very much to think that the Judge was misunderstood, for he never could call it an absolute bar. In the Wells Harbour Case this Court went fully into the doctrine, and the rule of law is clear, that length of time is presumptive evidence only. The Judge said:—I think 20 years' uninterrupted possession of these windows is a sufficient right for the plaintiff's enjoyment of them. Now that expression is open to a double construction. If the Judge meant it was an absolute bar he was certainly wrong; if only a presumptive bar, he was right. The Court seemed much inclined to discharge the rule, but the counsel for the defendant pressing it much, it was made absolute. However, the next day, Buller, J., said that Ashurst, J., had waited on Mr. J. Gould, who said he never had an idea but it was a question for a jury, and would have left it to the jury, if the counsel for the defendant had asked it; that he compared it to the case of trover, where a demand and refusal are evidence of, but not an actual conversion. Rule discharged. Darwin v. Upton, Mich., 26 Geo. III., K.B. (1786)."

In Read v. Brookman (1789, 3 T.R., 151) the question was whether a plea setting up a release which had been lost, and could not therefore be produced and put upon the record (as was required under the then existing rules of pleading), was good. Buller, J., said (p. 159)—"It would be a strange contradiction to say that the law allows a right, and yet precludes the party from taking the benefit of it. Pleading is the formal mode of alleging that on the record which would be the support or defence of the party on evidence. Now the law has said that a grant may be presumed from length of usage; then if a party were permitted to give evidence on the general issue in support of that presumption, and were refused the liberty to plead it, where pleading is necessary, it would be the grossest contradiction. Whether the evidence in each particular case is a sufficient foundation for such a presumption is a question that does not arise upon pleading, but upon the trial of the issue afterwards. And in some cases a rule has been laid down respecting the length of time which shall be sufficient to raise a presumption: As in the case of Darwin v. Upton, where 20 years' quiet and uninterrupted possession of ancient lights was deemed a sufficient ground from which the jury might presume a grant."

In Cross v. Lewis [1824] EngR 54; (1824, 2 B. & C., 686), which was an action for disturbance of lights which had been enjoyed for 38 years, Bayley, J., said: "I do not say that 20 years' possession confers a legal right, but uninterrupted possession for 20 years raises a presumption of right; and ever since the decision of Darwin v. Upton, it has been held that in the absence of any evidence to rebut that presumption, a jury should be directed to act upon it. It has been argued that in order to found such a presumption it must be shown that the first act was illegal. If so, the doctrine of presumption can never apply to windows; for a person building a house, even at the extremity of his own land, may lawfully open windows looking towards the adjoining property. If his neighbour objects to them he may put up an obstruction, but that is his only remedy; and, if he allows them to remain unobstructed for 20 years, that is a sufficient foundation for the presumption of an agreement not to obstruct them."

In Moore v. Rawson, [1824] EngR 118; 3 B. & C., 332, also an action for obstructing lights, and decided in the same year, Littledale, J. said (p. 339): "There is a material difference between the mode of acquiring such rights" (i.e., rights of common or of way) "and a right to light and air. The latter is acquired by mere occupancy; the former can only be acquired by user, accompanied with the consent of the owner of the land; for a way over the lands of another can only be lawfully used, in the first instance, with the consent, express or implied, of the owner. A party using the way without such consent would be a wrong-doer; but when such a user, without interruption, has continued for twenty years, the consent of the owner is not only implied during that period, but a grant of the easement is presumed to have taken place before the user commenced. The consent of the owner of the land was necessary, however, to make the user of the way (from which the presumption of the grant is to arise) lawful in the first instance. But it is otherwise as to light and air. Every man on his own land has a right to all the light and air which will come to him, and he may erect, even on the extremity of his own land, buildings with as many windows as he pleases. ... After he has erected his building the owner of the adjoining land may afterwards, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies, from the non-obstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy the light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant, for although a right of common (except as a common appendant) or a right-of-way, being a privilege of something positive to be done or used in the soil of another man's land, may be subject of legal grant, yet light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the non-obstruction and non-interruption of them more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air."

With reference to this last observation it may be remarked that, although the easement of light is often spoken of as a negative easement, there would not seem to be much difficulty in framing a grant of a positive easement of light over the land of the grantor. The importance of the passage lies, however, in this, that it is apparent that that very learned Judge regarded the consent of the owner of the servient tenement as the substance of the matter, and the means by which it is to be presumed to have been given as a mere question of form.

This is the last of the reported cases on the subject of ancient lights before 1828, when the Act of 9 Geo. IV., c. 83, was passed, and, as the Prescription Act, 2 & 3 Wm. IV., c. 71, was passed in 1832, the question has not since come up directly for discussion in England. In the case of Dalton v. Angus, (1879) L.R., 6 A.C., 740, however, in which all the law on the subject of the acquisition of easements by prescription is reviewed, the rule as laid down in Cross v. Lewis is recognized as a correct statement of the law of England before the Prescription Act.

Reviewing, then, this line of decisions, it appears to have been settled in England long ago that the right to the uninterrupted access of light over the land of another may be acquired by a "long" and continual possession, without any formal instrument, and that the interpretation of the word "long" has by degrees been altered by judicial decisions, and had come by the year 1786 to mean unexplained enjoyment for a period of 20 years or upwards. It was said by Lord Chief Justice Cockburn, that thus to shorten the period of prescription without the authority of the legislature was a judicial usurpation. As to this Lord Blackburn, in his speech in Dalton v. Angus (L.R., 6 A.C., at p. 812), remarked: "Perhaps it was. The same thing may be said of all legal fictions, and was often said (with, I think, more reason) of recoveries. But I take it that when a long series of cases have settled the law, it would produce intolerable confusion if it were to be reversed because the mode in which it was introduced was not approved of; even where it was originally a blunder and inconvenient, communis error facit jus. But to refuse to administer a long established law because it was based on a fiction of law, admitted to be for a purpose, and producing a result, very beneficial, is, as it seems to me, at least as great a usurpation of what is properly the function of the legislature as it was at first to introduce that fiction." The fiction referred to is that of a lost grant, which, however, as already shown, was not regarded by Littledale, J., as the substantial basis of the adopted rule.

No doubt, in some cases, where the matter came before a jury, the jury were directed to presume that a grant of the right had once existed and had been lost. But, if the distinction between the substance of the law and its temporary formal expression is borne in mind, the difficulty was never very formidable. The law of prescription says that a right of property in certain things may be acquired by long, continual, and peaceable possession. The reason of the law is given in the passage above quoted from the Digest. It was adopted on grounds of public policy, in order that the right of property in these things might not be for ever uncertain. But it was assumed that the origin of the title thus recognized by the law was itself lawful and not unlawful. And, since an easement over the land of another could only be lawfully created by his consent, the law, as pointed out by Littledale, J., implied that that consent had been given. This was the substance of the law. The mode of giving the consent was an accident. But, as the usual mode of creating an easement was by grant, it was not a great step to take to say, when the conditions which conferred the right were proved to exist, "Here is an incorporeal hereditament in lawful existence and of lawful origin. There must therefore at one time have been a grant." In the case of Bedle v Beard, the assumption, after a lapse of 303 years, of the existence of a grant which had been lost was not in itself absurd. But in the later cases no one pretended to believe in the actual existence of such a grant. It appears, however (see per Lord Blackburn in Dalton v. Angus, at p. 813), that as a matter of pleading it was the practice, if it was not absolutely necessary, to allege a lost grant (as was done in the present case). The issue of the existence of such a grant having been formally raised, it was necessary to leave it to the jury, but with a direction to the effect that if the facts proved showed 20 years' continuous possession, unexplained, the law inferred a lawful origin for the possession, and that, as the formal way of alleging that origin was by alleging a grant, they should accept the allegation in that sense, and, having regard to the substance of the law and not to its mere form, should find that the plea was proved. It is quite plain, when all the cases are considered, that the doctrine of lost grant was never regarded as anything more than an artificial and subsidiary rule designed for the purpose of giving effect to a substantial right.

With regard, however, to the suggestion that the shortening of the period of legal prescription was a judicial usurpation, it may be remarked that at the time when we first find the law of prescription formulated in England it was thought by lawyers that the period of prescription was what was called "time immemorial." The first statutory limitation of actions had been made by the Statute of Merton (28 Hen. III., c. 8), which prescribed various limits for bringing writs in real actions; that for a writ of right being the time of Henry II., and the limits for others being fixed at later dates. By the Statute of Westminster the First (3 Ed. I., c. 39), the limitation for a writ of right was reduced and fixed at the accession of Richard I. (a.d. 1189), and the limitations for others again at later dates. When Littleton wrote, the Courts appear to have thought themselves bound to act upon this expression of the will of the legislature, and to hold that the longest period allowed by law in cases governed by Statute law should be regarded as "time immemorial" in cases in which the Statute did not apply, but which were analogous in principle. And, although this rule was perhaps departed from in Bedle v. Beard, it would not have been surprising if, when the statutory limit was again altered by the Statute of Limitations of 1623, the Courts had felt themselves bound to substitute for "time immemorial" as the test of "long" enjoyment, the new periods of limitation fixed by that Statute, or, to put the same idea in other words, had thought that the latter periods should themselves be considered to be "time immemorial" for the purposes for which that term was used in the law of prescription. Regarding the matter from this point of view, the Courts, so far from usurping the legislative function, would only have been reverting to the principle which had been the foundation of their original decisions, i.e., to follow with regard to easements, which may be considered as accessories to land, the positive rule laid down by the legislature with regard to the land itself. This idea, though not distinctly expressed, may be collected from the opinion of Wilmot, C.J., in Dougal v. Wilson, [1845] EngR 311; 2 Wms. Saund., 175a. But, however the law came to be settled, whether by judicial usurpation or by renewed adherence to a principle for a time lost sight of, it is clear that before 1828 the law of England was clearly settled so far as judicial decision could settle it.

Was then this law part of the common law introduced into New South Wales on settlement? Or, if not, was it, in the words of the Act of 9 Geo. IV., a law "which can be applied" in the administration of justice in New South Wales?

In Attorney-General v. Stewart (2 Mer., 143), a case in which the question was whether the English Statute of Mortmain had been introduced into the colony of Granada, Sir W. Grant, M.R., said: "Whether the Statute be in force in the Island of Granada will, as it seems to me, depend on this consideration, whether it be a law of local policy adapted solely to the country in which it was made, or a general regulation of property equally applicable to any country in which it is by the rules of English law that property is governed." Applying this test, which has been generally accepted, we think that the law of prescription, which is, in various forms, part of the law of most civilized countries, cannot be regarded as a law of local policy adapted solely to the locality in which it was made, but must be regarded as a general regulation of property. In this regard we are unable to draw any distinction in principle between prescription at common law and prescription by Statute. It has never been doubted that the Statute of Limitations of 1623 (21 Jac. I., c. 16) applied to New South Wales (Devine v. Holloway, [1861] EngR 284; 14 Moo. P.C., 290), and it was expressly decided in Attorney-General v. Love, (1898) A.C., 679), that the Nullum Tempus Act (9 Geo. III., c. 16) is in force there. The learned Chief Judge appears to have thought that, in determining whether any particular part of the law of England was introduced into New South Wales by the Statute of 1828, the test to be applied is to consider whether the law is beneficial, by which we understand him to mean suitable to the existing conditions of Australia. But whether a law is suitable or beneficial to a country or not is a question for the legislature, and not for a Court of law. Moreover, the test prescribed by the Statute is not whether the law is suitable or beneficial, but whether it can be applied. It is plain that a law may be applicable in the sense that it can be administered, although it may, as a matter of opinion, be considered not "applicable," in the sense of being suitable or beneficial. The Statute does not, indeed, itself use the term "applicable," from the use of which in a double sense confusion has arisen.

In America it has been held by the Courts of most of the States that the law of prescription as to ancient lights, as now declared, was not part of the common law of England at the time of settlement, or at the later dates at which the existing English common law was adopted in the several States. For the reasons already stated we are of opinion that it was part of the common law of England in 1828. American Judges have also thought that the law was not in force as a law based upon sound principles and natural justice. This, however, is not a matter on which we are called upon to express any opinion.

We cannot see that there would be any difficulty in administering the law of prescription, so far as it regards ancient lights, in a new country, so soon as occupation had proceeded to such an extent as to allow of a continued enjoyment for 20 years. Possibly in determining whether the enjoyment was unexplained, some different, and, indeed novel considerations might arise, but this would not render impracticable the administration or application of the law itself.

So far as regards Australian authority on the subject, it is noteworthy that by the "Act to Facilitate the Granting of Leases" passed in 1847 by the Legislative Council of New South Wales, which then included some eminent lawyers among its members, it is enacted (sec. 2) that leases made in the form given in the schedule should be construed to include inter alia "all ancient and other lights" to the lands and tenements therein comprised belonging or in any wise appertaining. This is a legislative recognition of the possibility, at least, of the existence in New South Wales of ancient lights, and, as they could only come into existence by virtue of the law of prescription, of the existence of that law.

The old Registration Act of New South Wales, 7 Vict. No. 16, conferred priority upon deeds and other instruments (wills excepted) affecting lands or hereditaments executed bonâ fide or for valuable consideration according to the priority of registration, and not according to the dates of the instruments (sec. 11); and by sec. 22 the term "instrument" was defined as including all instruments in writing whereby real or leasehold estates should be affected or intended to be affected. There might be some difficulty in reconciling the law of prescription with this provision, if the doctrine of lost grant were to be taken literally as assuming the actual existence of an unregistered instrument. But, for the reasons already given, this does not seem to be necessary. The Real Property Acts of all the States, however, under which the register is the only evidence of title to interests in land, so that an unregistered instrument is ineffectual to create any estate or interest, expressly mention easements, and provide that as to them the register is not conclusive evidence of title. This is a plain recognition of the existence of a law under which interests can be created otherwise than by written instruments, since there could have been no difficulty in providing for the registration of grants or agreements for the creation of easements if it had been desired to do so.

In Thwaites v. Brahe, (1895) 21 V.L.R., 192, the Supreme Court of Victoria held that the presumption of a lost grant of an easement to light and air arises after uninterrupted enjoyment of the easement for twenty years, but may be rebutted by showing that the presumed grantor was under a legal incapacity to make the grant. The first proposition does not seem to have been disputed at the bar. In Green v. Walkley, (1901) 27 V.L.R., 503, in which the question was when the Statute of Limitations began to run in respect of a right of action for obstructing lights, the acquisition of an easement of light by 20 years' enjoyment was not disputed.

In White v. McLean, (1890) 24 S.A.L.R., 97, Boucaut, J., following a decision of Way, C.J., in Acraman v. King (17th June, 1880, a case of support), held that the English Prescription Act, 2 & 3 Wm IV. c. 71, as to light, was in force in the Province of South Australia, which was founded after the passing of the Act. In New Zealand Loan and Mercantile Co. v. Wellington, (1890) 9 N.Z.L.R., 10, the Court of Appeal in New Zealand held that the same Act was in force in that colony. Williams, J., delivering the judgment of the Court, said: "If these substantive enactments (Prescription Acts) are applicable to the circumstances of the colony, then they are in force in the colony, both by the general law and under the English Laws Act, 1858. These enactments, at the time New Zealand became a separate colony, formed part of the general English law of real property. As we undoubtedly took over the general branch of law, there is nothing to justify the exclusion of this part of it. It seems to me as fully applicable to the circumstances of the colony as the Statute of Limitations, the Statute 3 & 4 Wm. IV., c. 106, amending the law of inheritance, or the Wills Act."

The English Laws Act, 1858, referred to by the learned Judge, declared and enacted that the laws of England existing on 14th January, 1840, should, so far as applicable to the circumstances of the Colony of New Zealand, be deemed and taken to have been in force therein on and after that day, and should continue to be therein applied in the administration of justice accordingly.

In New Brunswick it has been held by the Supreme Court that the law of prescription as regards ancient lights is part of the common law introduced into that province on settlement; Ring v. Pugsley, (1878) 18 New. Br., 303. It is common knowledge that the early conditions of New South Wales did not differ materially from those of New Zealand or New Brunswick.

On full consideration we are of opinion that the law of prescription as to ancient lights was a law which could be applied in New South Wales within the meaning of the Statute 9 Geo. IV. c. 83, and therefore became part of the law of the colony at that time, even if it had not been brought with them by the first colonists.

We think, therefore, that the defendant's demurrer ore tenus should have been over-ruled. The foundation, however, of the plaintiff's right being a grant or agreement on the part of the owner of the adjoining land, using those terms in the sense, not of an actual document which has been lost, but in the sense of a contractual obligation which is implied by law from proved or admitted facts, it is, of course, still open to the defendants to show such a state of facts as will exclude the implication.

For these reasons we think that the appeal should be allowed, and the demurrer over-ruled, with such costs as would have been payable if it had been over-ruled with costs in the first instance. The cause must be remitted to the Supreme Court to do what is right in execution of this judgment. The respondents must pay the costs of the appeal.

Appeal allowed. Demurrer over-ruled, with such costs as would have been payable if it had been over-ruled with costs in the first instance. Cause remitted to the Supreme Court to do what is right in execution of this judgment. Respondents to pay the costs of the appeal.

Attorney for appellant, A. H. Delohery.

Attorneys for respondents, Perkins & Fosbery.