Commonwealth v Registrar of Titles (Vic) [1918] HCA 17; (1918) 24 CLR 348 (21 March 1918)

The Commonwealth Appellant; and The Registrar of Titles for Victoria Respondent.

The Commonwealth, by a notification in the Government Gazette published under the Lands Acquisition Act 1906, acquired a parcel of land (parcel A) and also a right of way over an adjoining strip of land (parcel B), together with rights of drainage over parcel B and also a right expressed in the words: "together with full and free right to and for the Commonwealth of Australia and to and for the registered proprietor or proprietors for the time being of the land firstly above described, or any part thereof, and its, his and their tenants, servants, agents, workmen, and visitors to the uninterrupted access and enjoyment of light and air to the doors and windows of the building or buildings erected or to be erected on the land firstly above described over and across all that strip of land 10 feet wide adjoining the eastern boundary of the said land firstly above described, which strip is shown cross hachured on plan hereunder." The Registrar of Titles refuses to register this right on the ground that it is not an existing easement. Whatever it is, it is a right in respect of land, and it has been acquired by the Commonwealth under its power to acquire "land," which term includes "any estate or interest in land (legal or equitable), and any easement, right, power, or privilege over, in, or in connection with land" (sec. 5). It is also clear that the complete and exclusive dominion which the proprietor of parcel B had in that parcel has been diminished to the extent of the right which had been so acquired and added to the property of the Commonwealth.

The present application relates to the registration of the right in respect of the title to parcel A, which, if it is registrable at all, is required by sec. 68 of the Transfer of Land Act. No application to register in respect of the title to parcel B, which registration is obviously more important to persons desiring to deal with that parcel, and which is provided for by sec. 73, is made. I think that in such cases the Registrar of Titles should, as far as he can, endeavour to ensure registration in respect of the servient as well as the dominant tenement. This, however, appears to be not imperative.

It is contended that the right is not an easement because it is not enjoyed in respect of any existing building. This argument seems to me to confuse the existence of a legal right with the present physical enjoyment or exercise of it, and also to treat the easement as appurtenant not to the land but to the building. Again, it is said that the easement of light can only exist in respect of existing defined apertures. Here, again, there is a confusion—between a right and the mode of its acquisition. It has always been held that an easement, which is an incorporeal hereditament, lies in grant. An easement of light has generally been rested on prescription, that is, on long and uninterrupted enjoyment, from which, it is said, a grant should be presumed. The presumption, of course, assumes the possibility of a valid grant. But, since the enjoyment could only have been of definite apertures, no such prescription could arise except in the case of their existence. The foundation of every implied or presumed agreement or grant is that it must have been intended by the parties, and in the case of vacant land adjoining other vacant land no one could suppose that the owners must have intended that neither should ever interfere with the other's light. But these difficulties do not arise in the case of an express grant, which may in general be formulated in any way the parties please.

It is said that there is no reported decision in which a grant of a general easement of light has been supported, and that it must be taken that the list of possible easements is closed. Lord St. Leonards did not think so. As long ago as 1852 he said (Dyce v. Hay[1]): "The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind."

A recent instance of a novel easement is to be found in the case of Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd[2].

In the course of argument I referred to several possible easements novel in kind. For instance, an easement or servitude for the passage of aeroplanes through the superjacent air of the servient tenement to a landing place, for the passage of an electric current through suspended wires passing through that air, for the free passage of the flash from a heliograph station. Why not also of the sun's rays? All these would be servitudes of a right of passage over the servient tenement, not indeed on the surface of the soil, but through that which, usque ad coelum, is, in the eye of the law, a part of the land. In the olden days air was not thought of as a subject of property any more than as a substance capable of being liquified or solidified. In the light of modern knowledge, however, there is no difference in principle between a right to the free passage of moving air to my windmill and the free passage of running water to my watermill.

I have no difficulty, therefore, in saying that on principle such a right as is claimed is an easement at common law. And I know of no authority binding the Court to hold otherwise. This aspect of the case was not presented to Cussen J.

But if there were any room for doubt on the point, the doubt is, in my opinion, set at rest by the Lands Acquisition Act. It is not disputed that the number of existing kinds of easements may be increased by Statute. I have already pointed out that under the Act any part of the dominion of the owner of land may be taken from him separately from the soil and vested in the Commonwealth. The right now in question is a right of dominion of the same kind as those which fall within the category called easements. If no more were said, it would follow that a formal transfer of it would be effectuated by the form of conveyance appropriate to property of that kind. The Act expressly provides that the notification itself shall operate as a transfer of what is taken, and sec. 20 requires the Registrar of Titles to deal with it by registration in the manner in which dealings with land are registered, and to give effect to it as if it were an instrument of transfer of the land (which. of course, means so much of it as is taken) to the Commonwealth, duly executed under the laws of the State. That is to say, he is to treat it in the same way as he would treat a transfer, namely, by entering it upon the title. There is no ambiguity in the language. It is to be treated as a transfer, whether under the domestic law it would be so treated or not. The law of the Commonwealth is part of the law of the State, and the Act which allows such a right in respect of land to be created and transferred to the Commonwealth, whether it does or does not add to the list of interests in land already transferable under the State law, at any rate puts this right in respect of land, when acquired by the Commonwealth and transferred by notification, on the same footing as land transferred.

For this reason, also, I am of opinion that there is no valid answer to the motion.

We agree with the Chief Justice in thinking that the right which the Commonwealth has assumed to take in this case is an easement such as might be created at common law by a proprietor of land for the benefit of adjacent land, and should therefore be registered under the provisions of sec. 20 of the Lands Acquisition Act 1906. The owner of a parcel of land is primâ facie entitled to all the light and air which would naturally pass to it across his neighbour's land, but that right is subject to the neighbour's right of building on his own land as and when he chooses, although the effect of his building may be to diminish the quantity of light or air so passing or even to entirely obstruct its passage. It was conceded by counsel for both parties before Cussen J. and before us that an abandonment of this right could not constitute an easement at common law if it did more than assure to the dominant tenement the passage of light and air to and through defined apertures in existing buildings, and that the claim here was both too large and too uncertain to constitute such an easement. We can find no reason either in principle or authority for this view of the law. An easement is appurtenant to and for the benefit of the dominant tenement as a whole, and not to or for the benefit of any particular building. The abandonment by the owner of the servient tenement of what is really his right to build as and when he chooses on his own land, but what for convenience we may call his right to obstruct the passage of light and air across his land, may be either total or partial. The part abandoned here is so much of the whole as is inconsistent with a right in the owner of the dominant tenement to the uninterrupted access and enjoyment of light and air to the doors and windows of any buildings already erected or thereafter to be erected on such tenement. The exact nature of the easement is ascertained and described, the only uncertainty is as to the probable extent of its user by the owner of the dominant tenement.

In the circumstances it is unnecessary to express any opinion as to the construction of sec. 20 of the Lands Acquisition Act 1906.

Appeal allowed. Order appealed from discharged. Order for mandamus absolute with costs. Respondent to pay costs of appeal.

Solicitor for the appellant, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] 1 Maeq., at p. 312.

[2] (1915) A.C., at p. 617.

High Court of Australia

Commonwealth v Registrar of Titles (Vic) [1918] HCA 17; (1918) 24 CLR 348 (21 March 1918)

HIGH COURT OF AUSTRALIA