Maguire v Browne [1913] HCA 57; (1913) 17 CLR 365 (3 November 1913)

HIGH COURT OF AUSTRALIA

Maguire Defendant, Appellant; and Browne and Another Plaintiffs, Respondents.

H C of A

On appeal from the Supreme Court of Western Australia.

3 November 1913

Barton A.C.J.Gavan Duffy and Rich JJ.

Haynes K.C. and A. G. Haynes, for the appellant.

Keenan K.C. and Ackland, for the respondent.

The judgment of the Court was read by

Nov. 3

Gavan Duffy J.

This is an appeal from the judgment of Rooth J. dated 25th September 1913, by which it was ordered that the plaintiffs, the respondents to this appeal, should recover possession of the whole of the land comprised in Certificate of Title registered Volume 407 Folio 82. The action was brought by the plaintiffs against the defendant to recover possession of this land. The statement of claim alleges:—

1.

On the 1st day of January 1912 the plaintiff Lilian Harriet Browne was seized in fee and in possession of all those portions of Wellington Location 1 known as Ironpot Farm containing 2,978 acres situated near Brunswick in Western Australia and being the whole of the land comprised in Certificate of Title under the Transfer of Land Act 1893 registered Volume 407 Folio 82.

2.

By an agreement in writing dated the 1st day of January 1912 the plaintiff Lilian Harriet Browne agreed to sell the said land to the plaintiff Charles Algernon Sweeting and thereby agreed to give to him undisturbed possession of the said land.

3.

The plaintiff Lilian Harriet Browne is the registered proprietor of the said land and is entitled to the possession thereof and the plaintiff Charles Algernon Sweeting is entitled to possession of the said land by virtue of the said agreement.

4.

The defendant has wrongfully taken possession of the said land.

The defendant limited his defence to part of the land—lots 51 and 52, comprising about 200 acres. He did not deny the allegations contained in the statement of claim, but said that the plaintiffs' right of action was barred by the Real Property Limitation Act 1878, and their right and title to this part of the land were extinguished by virtue of that Act and the Imperial Act 3 & 4 Will. IV. c. 27, sec. 34, adopted in Western Australia by 6 Will. IV. No. 4. It is not easy to understand how the defendant could succeed on these pleadings, but at the trial his case is said in the judgment of Rooth J. to have been based on the ground that since the year 1898 the defendant had had such possession as is contemplated by the Statute of Limitations, and that therefore the right of the plaintiffs to recover in the action was barred. In the year 1890 he had gone to the land with a Mr. Mitchell who then occupied the whole of the land contained in the plaintiff Browne's certificate of title, and on information received from Mitchell had blazed trees along the lines of lots 51 and 52, and put in pegs which were intended to mark the boundaries of those and other lots. We have no information as to what conversation with respect to the land took place between the defendant and Mitchell; so that all that was then done may have been done in pursuance of a licence from or of an agreement for tenancy with the then owner of the land. About 1898 the defendant again visited the land, and according to his evidence in cross-examination he then "started to get the right of possession." The question which the learned judge set himself to determine was this: Had the defendant proved a discontinuance of possession by the plaintiffs and their predecessors in title for a period of twelve years between this second visit and the bringing of the action? He held that the evidence showed repeated acts of ownership by the plaintiff Browne and her predecessors in title which were quite inconsistent with such a discontinuance, and we agree with him. This is enough to justify a judgment for the plaintiff, but it does not follow that a contrary finding would justify a judgment for the defendant. The proper test as to the plaintiffs' right to recover is supplied by sec. 3 of 3 & 4 Will. IV. c. 27, which enacts that the right to bring an action shall be deemed to have first accrued when the owner of the paper title shall have been dispossessed or have discontinued his possession. Now, the dispossession and discontinuance contemplated by this section have been held to connote the existence of a person to be protected by the Statute who has dispossessed such owner and kept him dispossessed for a period of twelve years, or the abandonment of possession for such a period by the owner and the possession by some other person during the same period: M'Donnell v. M'Kinty[1]; Trustees Executors and Agency Co. v. Short[2]. We think on the evidence that the defendant has not established this possession by himself as apart from the alleged want of possession by the plaintiffs and their predecessors in title, and on this ground also we think he has failed to establish his right to protection under the Statutes of Limitation.

The appeal, in our opinion, should be dismissed with costs.

Appeal dismissed with costs.

Solicitors, for appellant, R. S. Haynes & Co..

Solicitor, for respondents, A. S. Canning.

[1] 10 Ir. L.R., 514.

[2] 13 App. Cas., 793.