Hindmarsh v Quinn [1914] HCA 27; (1914) 17 CLR 622 (17 April 1914)

This is an action of ejectment, defended by the appellant on the ground that an agreement under seal between him and Lawrence Quinn, deceased intestate, conferred on the appellant a right sufficient to defeat such an action.

The agreement bears date 27th March 1911, and its main provisions will be stated presently. Lawrence Quinn died intestate on 7th January 1912. He was then owner in fee and entitled to the immediate possession, as the appellant admits, subject to the terms of the agreement mentioned. The respondent, who is the plaintiff, is the widow of the intestate, and administration of his estate and effects was granted to her before action. She therefore has the legal estate in the lands of which she claims possession.

On 28th March 1911 the appellant entered on the lands under the agreement, and has resided upon them until the present time. He carried out its terms until the death of the intestate. Since that event he has made payment to the respondent of several quarterly instalments of the £70 per annum made payable to her by the agreement. Two of such payments were made after the issue of the writ. He has also since Quinn's death continued to work and manage the dairy farm upon the lands claimed and to find the stock and plant in connection with these operations. He appears to retain the whole of the profits of the farming operations, and has spent about £180 in labour and material upon the lands, increasing their value by about £240. Their value is about £1,040.

The agreement of 27th March 1911 provided that the appellant should enter upon, and work as a dairy farm, the land "owned by the said Lawrence Quinn," of which the possession is claimed, should pay all working expenses, supply all dairy cows, and all farming implements, horses, and vehicles necessary for the proper conduct of the said dairy farm, erect at his own cost a new dairy, cowyard and bails, and keep them and all fences in repair. The net profits were to belong to the parties in equal shares as long as Quinn should reside on the farm. If he went to reside elsewhere the appellant was to pay him £70 a year, and if he died leaving his wife surviving him the same annual sum should be paid to her annually. The payments were to be quarterly. If the appellant continued the agreement and faithfully carried it out during Quinn's life, the executors or administrators of the latter were, at the appellant's cost, to transfer and convey the land to him in fee "subject only to an estate for life in" the widow. There was a provision that Quinn or his representatives should "during the continuance of this agreement" pay the Government all interest and instalments due from time to time and perform all unexpired conditions of residence and improvement under the Land Acts. The property consisted of three conditional purchases. In case of default by Quinn the appellant was to pay interest and instalments, "and deduct the amount so paid from any money that" might "be due or become due to the said Lawrence Quinn or his said wife under this agreement." If the appellant terminated the agreement, Quinn was to be at liberty to buy any crops or the products thereof on the farm at market value. It was provided that the appellant should "not assign or sublet this contract or his interest therein without the consent of the said Lawrence Quinn." The 11th clause is in the following words:—"The said Thomas Hindmarsh may reside upon the said dairy farm but on such part thereof only as the said Lawrence Quinn directs during the continuance of this agreement, and no licence or right of occupation hereby given to the said Thomas Hindmarsh in respect of the said dairy farm shall be construed to create a tenancy in the said Thomas Hindmarsh, and the said Lawrence Quinn shall not be liable to any action for trespass or damage to the said crops or the product thereof by the stock of the said Lawrence Quinn or for damage by fire."

The rights of the parties in the present action do not depend, as their Honors of the Supreme Court seem to have thought, upon the 6th clause of the agreement. Until the assurances mentioned in that clause are executed the rights with which it deals are not cognizable in this action.

The action is possessory only; that is, it is based on the right of actual possession in the admitted owner (clause 1) which has passed to the respondent as his administratrix. The defence disputes this right of possession. It is plain that the respondent and the appellant cannot both have possession at the same time, not being joint tenants, or tenants in common, or co-parceners. The possession is primâ facie in the respondent as admininistratrix of Quinn, and she is entitled as plaintiff to a verdict unless some defence be established. It is contended that a defence is afforded by the agreement under seal. The appellant, therefore, must be taken to assert a right to exclude the respondent. To have this effect, the agreement must operate as a grant of some right which either carries per se a right to possession, or has such a right as a necessary incident to its exercise. It was contended for the respondent that the agreement operated as a grant, and that the thing granted was a profit à prendre. Assuming these two contentions, for present purposes, to be correct, primâ facie a grant of a profit à prendre does not per se give a possession exclusive of the owner. In Duke of Sutherland v. Heathcote[1] Lindley L.J., delivering the judgment of the Court of Appeal (Lindley, Bowen and Fry L.JJ.) said[2]:—"A profit à prendre is a right to take something off another person's land; such a right does not prevent the owner from taking the same sort of thing from off his own land; the first right may limit but does not exclude, the second. An exclusive right to all the profit of a particular kind can, no doubt, be granted; but such a right cannot be inferred from language which is not clear and explicit." His Lordship then reviewed the authorities, fully describing Lord Mountjoy's Case[3], and taking the same view of that case as of the case then in question—a view taken in the subsequent cases of Chetham v. Williamson[4] and Doe v. Wood[5]. "Lord Mountjoy's Case," his Lordship said[6], "has always been regarded as a leading authority for the proposition that a grant in fee of liberty to dig ores does not confer on the grantee an exclusive right to dig them, even if the grant is in terms without any interruption by the grantor." The same principle applies to a grant of a profit à prendre in pasturage or crops, and therefore, as I take it, to a grant of a right to use land for dairying on half profits, the only difference being that in the cases cited the right granted applied to minerals below the surface, while in the present case it applies to the surface only, and does not affect the subjacent lands. No doubt, in either case there is a grant of an interest in land within the Statute of Frauds: See Webber v. Lee[7]. That was a case of a profit à prendre, a right to shoot over land and to take away part of the game killed, but in such a case the right in question, although had it been properly conferred it would necessarily have carried with it a right to go on the land to shoot and take away the game, was of course compatible with the exclusive possession of the grantor at law. And it seems to me that rights of the kind, being incorporeal, although there may be incident to them a liberty to enter the land for the purpose of enjoying the right, are nevertheless not exclusive of the right of the owner of the soil to possession. It would be monstrous to say that they empower the grantee to exclude the owner, and I do not think the appellant here can succeed unless he goes to that length.

The grant, then, does not in my mind connote such a possession on the most favourable interpretation. Such a possession is not involved in the right conferred, and it is not a necessary incident thereto.

I have dealt with the matter hitherto on the basis of a grant, if there is a grant, of a bare profit à prendre. But it is still to be considered whether[8] a profit à prendre has been conferred with an express right to exclusive possession and[9] whether the agreement confers a right greater than a profit à prendre, and of such a nature as to exclude the possession of the freeholder.

To determine these matters we must look closely at the agreement. Having examined it, I cannot find an express right to exclusive possession in the grantee, but, on the contrary, I find that the owner's possession is expressly reserved, for it is difficult to see that any other interpretation can be placed upon the concluding passage of clause 11, which expressly confers on the owner an immunity from actions for trespass or damage to the crops or their product by his stock. Does the agreement, then, confer a right, greater than a profit à prendre, of such a nature as to exclude the respondent's possession? I am not speaking of any right enforceable in equity, but purely of common law rights and interests such as are cognisable in New South Wales in an action of ejectment. That there is no tenancy is made clear by clause 11, in the stipulation that no licence or right of occupation given to the appellant should be construed to create a tenancy in him. Even apart from this there are no words in this deed apt to create a tenancy. In Ex parte Foster[10] the owner, by a sharefarming agreement, demised land to the applicant, who agreed to work the land and to pay the owner a half of all profits of the produce grown on the land. Here a tenancy was held to have been created, I think by the operation of the word "demise." In Ex parte Duggan[11], which was the case of an information by an owner under the Landlord and Tenant Act for the recovery of land held by the applicant on the shares system, the applicant agreed "to cultivate all those portions ... granted to him by" the respondent for that purpose, for a year; and the respondent agreed to allow the applicant 23 acres "for growing corn and other crops, reserving the right of depasturing cattle as soon as the crops are off." The Supreme Court held that a tenancy was not created by the agreement. And Stephen A.C.J., said, "I cannot see that there was a divesting of the respondent's possession and exclusive possession given to the applicant." In Bellinger v. Hughes[12], which was another case of a "halves" agreement, it was held that the terms of the document constituted it a licence coupled with such an interest as rendered it irrevocable; but the Court did not suggest that there was a tenancy, and a mere irrevocable licence not conferring exclusive possession would not be a defence to an action of ejectment by the grantor of the licence.

If, then, the agreement confers a right greater than a profit à prendre or other incorporeal hereditament, but short of a tenancy, I think the appellant is in no better plight, because such a right is not an interest known to the common law so far as it is neither the one nor the other; and to defeat this action it seems to me that the presumptive possession of the respondent can only be met and defeated by a better possessory right in the appellant. A profit à prendre may be a greater right than an easement, but they are both incorporeal hereditaments, and neither of them can of itself defeat the owner's right of possession, nor can such a right to go on the land as is necessary to the enjoyment of either of them so alter the quality of the incorporeal right as to exclude the respondent's possession. Unless the incorporeal interest carries with it the right of actual possession exclusive of the grantor, it is no defence against evidence of seisin in possession. If it does carry such a right the owner is, of course, out of possession altogether in fact and in law, and that is a conclusion which I cannot come to in view of the terms of the agreement, especially of clause 11.

On the contention that the action must fail because there was in this case a licence coupled with an interest and therefore irrevocable, Wood v. Leadbitter[13] and other cases on that subject were fully considered. It is enough to say that a licence is not, merely because it is irrevocable, a bar to the freeholder's possession, because its irrevocability does not turn an incorporeal interest into a corporeal one.

Two further remarks are applicable to the arguments advanced for the appellant. If the appellant has an interest which can defeat the respondent's possession, it must as against that possession be a right upon which he could bring ejectment against the respondent. Now, his interest is an incorporeal hereditament if it is more than a contractual right, and ejectment cannot be brought in respect of an incorporeal hereditament except as appendant or appurtenant to something corporeal. Here the incorporeal right is clearly in gross, and could not be the foundation of an ejectment. The next remark is that it is no objection to the recovery of land under a writ of habere facias that there is an incorporeal right over it, for the sheriff may deliver possession of the land, subject and without prejudice thereto. (See Cole on Ejectment, 1st ed., p. 347.) The judgment does not authorize the respondent to infringe the appellant's true rights under the agreement.

It is necessary to make it clear that in dealing with this appeal the Court is not adjudicating upon the respective rights of the appellant and of the estate represented by the respondent, further than is necessary for determining the question of possession at common law. Apart from this I do not discuss either the common law or the equitable rights or remedies of either party. The question whether the interest of the appellant amounts even to a profit à prendre, or whether it is greater, is, unless it gives him a better possessory right than the respondent, beside the present controversy. There is evidently a conflict between these parties which would require the intervention of equity before their rights could be finally adjusted. The law of this State prevents the determination of equitable rights in an action for recovery of possession. As the property is of no great value I venture to repeat the suggestion made from the Bench, that the parties should settle their differences before the amount of costs becomes ominous either to the appellant or to the estate.

Unless the agreement which is under seal passes an interest in the land, the defendant, of course, is out of Court in any case.

It is clear that a licence, coupled with a grant of a profit à prendre, creates an incorporeal hereditament, and therefore an interest in the land (Wood v. Leadbitter[14]).

Further, "it is undoubted law," says Lord Wensleydale in Rowbotham v. Wilson[15], "that no particular words are necessary to a grant; and any words which clearly show an intention to give an easement, which is by law grantable, are sufficient to effect that purpose." So per Lord Kenyon C.J. in Shove v. Pincke[16]. And see Webber v. Lee[17]; James Jones & Sons Ltd. v. Earl of Tankerville[18]; and Bellinger v. Hughes[19].

If, however, upon the true construction of the deed in question here, a profit à prendre was created as an incorporeal hereditament, and if the operation of the agreement as a whole still continues—the latter a matter now left wholly undecided—the question still arises whether the licence, coupled with that grant, would afford an answer to the plaintiff's claim as owner of the land to exclusive possession of the land itself, and whether the rights of the grantee of the profit à prendre can in New South Wales be tested in an action of ejectment brought by the legal owner of the land itself.

There are two reasons why, I think, the defendant must fail in this action. The first is, because I would answer the question I have just formulated in the negative. Blackstone (Commentaries, book II., p. 20) says:—"Corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them."

Now it is evident when the respective natures of these two classes of hereditaments are borne in mind, the right to the idealistic and abstract hereditaments cannot affect the right of the owner of the corporeal subject to its full and exclusive possession, as a corporeal thing. What use and occupancy he while in possession may be bound to allow the grantee of the incorporeal hereditament to enjoy is another question. The latter has undoubtedly a possessory action if disturbed, but that means an action for disturbance of his possession of his property, namely, the incorporeal hereditament and its products, and whatever of his other property he uses in connection with the incorporeal hereditament. As to this, see per Lindley L.J. in Hindson v. Ashby[20], and the authorities cited by him.

In Smith v. Kemp[21] Holt C.J. referred to the second class of fishing rights as follows:—"Where the right of fishing is granted to the grantee, and such a grantee hath a property in the fish, and may bring a possessory action for them without making any title"—that is, to the land.

See for instance per Parke B. in Northam v. Bowden[22]. There is no case which says that the grantee of an incorporeal hereditament may bring ejectment. Even if we were to suppose the grant exclusive (see Sutherland v. Heathcote[23]), that would not enable the grantee to sue in ejectment. In Cole on Ejectment (1857), at p. 91, there is this passage:—"Ejectment does not lie for any incorporeal hereditaments, 2 Arch. N. P., 303; except as appendant or appurtenant to something corporeal, and together with it."

In other words, an interest in the land, even a legal interest, is not equivalent to a legal title to possession of the land. The second answer is that paragraph 11, especially when read with paragraph 9, is in itself fatal to the defendant's case. It stipulates that "no licence or right of occupation hereby given to the said Thomas Hindmarsh in respect of the said dairy farm shall be construed to create a tenancy in the said Thomas Hindmarsh," &c.

Now, it is manifest that if the parties agreed that nothing so high as a tenancy should be created, it was their intention not to create any interest in the land itself, but to leave the bargain to operate as an agreement only. Incorporeal hereditaments in themselves are not the subject of tenure. Paragraph 9 treats the bargain as an agreement only, and though that paragraph speaks of the purchase of crops—which means the purchase of Hindmarsh's crops—yet that is consistent with the crops being his by virtue of the agreement while it lasts.

Whichever way the matter is looked at, the defendant has no legal estate of any kind in the land. Since Doe v. Staple[24] it has been, except where altered by the Judicature Acts, firmly established law that the "jurisdiction" of the common law Courts was "confined to legal titles taking care that they do not intrude on the rules of law, nor discuss equitable titles." See per Lord Kenyon C.J.[25]. To the same effect per Alderson B., in Doe d. Hughes v. Jones[26]. In other States of this Commonwealth, as in England, the jurisdiction of a Court is now not so restricted, and the rights of the parties may in proper circumstances be adjusted in the one action, and at the one expense, but the inviolability of ejectment actions from the intrusion of all equitable considerations, established in England in 1788, is retained in its full vigour and rigidity in New South Wales to-day. The action cannot be moulded or transformed to meet the circumstances; and so the defendant entirely fails because the plaintiff has a legal title, and he has not, and because nothing but legal title to possession of the land itself can be considered in this action. The rights of the parties can, of course, if they can afford it, be ultimately determined by a separate formal suit in equity with its normal consequences.

During the course of the argument in this case, the meaning of the agreement made between Lawrence Quinn and the defendant on 27th March 1911, and the rights of the parties to the agreement and of the plaintiff under it, were much discussed, but in the end the question was narrowed down to this—Had the defendant any legal title to or in respect of the land the subject matter of the action, which could displace the right to possession claimed by the plaintiff as administratrix of the estate of Lawrence Quinn? We say "legal title," because, according to the law of New South Wales, merely equitable rights cannot be recognized in this action. It was not contended that any tenancy had been created, but it was suggested that the agreement operated as a grant of a profit à prendre, and gave the defendant an irrevocable right to resist the plaintiff's claim for possession to the land. We do not think that it has any such operation, and we agree with the other members of the Court in thinking that the existence of a profit à prendre does not entitle the grantee to resist the right of the owner of the land to enforce possession in an action of ejectment. Under these circumstances it is unnecessary and undesirable to offer any opinion as to the meaning of the agreement or as to the rights conferred by it, which must be determined elsewhere, if at all.

Solicitor, for the appellant, Arthur B. Shaw, Singleton, byA. B. Shaw & McDonald.

[1] (1892) 1 Ch., 475.

[2] (1892) 1 Ch., 475, at p. 484.

[3] 1 And., 307; [1687] EngR 789; 4 Leon., 147.

[4] 4 East, 469.

[5] 2 Barn. & Ald., 724.

[6] (1892) 1 Ch., 475, at p. 485.

[7] 9 Q.B.D., 315.

[8] 3 S.R. (N.S.W.), 645.

[9] 19 W.N. (N.S.W.), 260.

[10] 3 S.R. (N.S.W.), 645.

[11] 19 W.N. (N.S.W.), 260.

[12] 11 S.R. (N.S.W.), 419.

[13] [1845] EngR 528; 13 M. & W., 838.

[14] [1845] EngR 528; 13 M. & W., 838.

[15] [1860] EngR 892; 8 H.L.C., 348, at p. 362.

[16] 5 T.R., 124, at p. 129.

[17] 9 Q.B.D., 315, at p. 319.

[18] (1909) 2 Ch., 440, at pp. 444, 445.

[19] 11 S.R. (N.S.W.), 419, 424.

[20] (1896) 2 Ch., 1, at p. 10.

[21] 2 Salk., 637.

[22] [1855] EngR 410; 11 Ex., 70, at p. 72.

[23] (1892) 1 Ch., 475, at p. 484.

[24] 2 T.R., 684.

[25] 2 T.R., 684, at p. 696.

[26] [1842] EngR 144; 9 M. & W., 372, at p. 377.

High Court of Australia

Hindmarsh v Quinn [1914] HCA 27; (1914) 17 CLR 622 (17 April 1914)

HIGH COURT OF AUSTRALIA