Milne v James [1910] HCA 56; (1910) 13 CLR 165 (25 October 1910)

The appellant having given notice of appeal to this Court from a judgment of the Supreme Court of Western Australia dismissing his action, the respondent applied to Burnside J. under Rule 9 of Section IV. of Part II. of the Appeal Rules to set aside the notice as being given in a case in which an appeal could not be brought as of right. The action was for a declaration of right to a strip of land about three feet in width having a wall upon it, over which the defendant claimed an easement of support for the beams supporting the upper floor of his adjoining building. The plaintiff also claimed a mandatory injunction and damages, which would include a reasonable sum by way of compensation in the nature of rent for the use by the defendant of his wall. The application to Burnside J. was based on the contention that the value of the matter in issue was less than £300. Upon the affidavits it may be taken that the value of the strip of land was about £130, and the value of the wall about £160, and that the plaintiff had sustained actual direct loss by reason of the presence of the defendant's beams to the extent of £15, irrespective of any right to compensation in the nature of rent.

Burnside J., and the Full Court on appeal, thought that under these circumstances the value of the matter in issue was less than £300.

The question must be determined upon the assumption that the plaintiff was entitled to all that he claimed. The relevant provision of the Judiciary Act 1903 is sec. 35 (1) (a) (2), which provides that an appeal shall lie from any judgment which "involves directly or indirectly any claim, demand, or question, to or respecting any property or any civil right amounting to or of the value of £300." The learned Judges appear to have accepted the view put forward by the respondent that the test is the amount by which the plaintiff would be damnified if the right asserted by the defendant were allowed, and that this would necessarily be much less than the total value of the property in respect of which it is asserted. It is, of course, manifest that the extent to which the owner of a tenement would be damnified by the existence of an easement over it is by no means commensurate with the value of the easement to the person entitled to the easement. But in our opinion neither of these values is the test prescribed by the Act. The property in respect of which the plaintiff's claim is asserted (including damages) is of a value exceeding £300. He claims to be entitled to deal with that property as his own, while the defendant sets up a claim which, in effect, would prevent the plaintiff from dealing with it at all except for certain limited purposes, which may not be those for which it is suitable or to which he desires to put it. This is a denial to the plaintiff of his dominion over his own property. In our opinion a claim for an injunction to restrain such an interference with property of the value of £300 is a claim respecting property of that value within the meaning of sec. 35. The test suggested by the respondent, on the other hand, is that the amount of the plaintiff's claim is the price at which he could buy out the defendant. A plaintiff whose property is trespassed upon is not under any obligation to buy out the trespasser. The cases of Amos v. Fraser[1] and Macfarlane v. Leclair[2] are entirely in accord with this opinion.

We do not think it necessary to express any opinion on the other questions sought to be raised by the appellant, but which were not argued.

[1] [1906] HCA 57; 4 C.L.R., 78.

[2] [1862] EngR 406; 15 Moo. P.C.C., 181.

High Court of Australia

Milne v James [1910] HCA 56; (1910) 13 CLR 165 (25 October 1910)

HIGH COURT OF AUSTRALIA