Parties Dispute Entitlement Over Farming Land

Matusik v Maher Farms Pty Ltd & Ors [2022] VCC 393 (11 April 2022)

The plaintiff and her predecessors in title assert entitlement over adverse possession of a parcel of farming land.  The defendants contend the plaintiff cannot prove the requisite 15 years of exclusive and continuous possession of the disputed land.  The Court, in resolving this dispute, assessed whether time ceases to run against a freehold owner whilst the tenant is in possession.

Facts:

The defendants contend the plaintiff cannot prove the requisite 15 years of exclusive and continuous possession of the disputed land.  They further contend that two leases granted by previous owners of the disputed land severed the plaintiff’s claim for continuous adverse possession because time stopped running as against the freehold owner whilst the tenants were in possession.   

The first defendant is the current registered proprietor of Lots 1-3, 5-6, 8 and 10-14 on Title Plan 567616G being part of the land described in Certificate of Title Volume 8939 Folio 624 (“the Maher land”).  The disputed land is located within the Maher land, along its eastern-most boundary.  From 13 May 2014, Mr Suckling was the registered proprietor of the land on lots 4, 5 and 6 on Title Plan 885314Y situated at 255 Dean-Mollongghip Road, Mollongghip in the state of Victoria, and being land described in Certificates of Title Volume 11495 Folios 725, 726 and 727 (“the plaintiff’s land”).  The western boundary of the plaintiff’s land is directly adjacent to the disputed land.

An iron shed constructed in the early 1960s sits partially on the southern portion of the plaintiff’s land and partially on the disputed land (“the shed”).  A large dam was constructed sometime in the late 1970s or early 1980s and sits between the southern and northern portion of the disputed land (“the dam”).  An iron hut was built in the early 2000s and is situated to the east of the dam (“the hut”).  Along the fence in the north-western corner of the disputed land, there is a gate (“the northern gate”) which provides access between the disputed land and the Maher land.  

On 18 September 1961, Ada Kirkland May (“Ada”) became the registered proprietor of a parcel of farmland in Dean, consisting of Lots 2, 3, 4, 5 and 6 on Title Plan 885314Y, being land described in Certificate of Title Volume 8326 Folio 508.  On 1 October 1971, Ada became the registered proprietor of the Maher land and remained so until 4 April 1996.  From the mid-1970s, Ada’s son and grandson, Lawrence and Murray May respectively, farmed and grew potatoes on both the Maher land and the plaintiff’s land under a partnership known as “LG May & Son”.  Ada died in July 1992.  The titles and possessors of the Maher land and the plaintiff’s land have changed multiple times since Ada’s death.

On 8 February 1996, Murray May (“Murray”) became the registered proprietor of the plaintiff’s land.  On 24 May 2013, Murray entered into a contract of sale with Mr Suckling to sell the plaintiff’s land.  Settlement occurred on 22 August 2013.  Mr Suckling commenced farming activities on the land from late May 2013 pursuant to special condition 2 of the contract of sale.  On 24 May 2014, Mr Suckling became the registered proprietor of the plaintiff’s land.  He carried on a farming business on the plaintiff’s land until his death on 29 October 2019.

The plaintiff was appointed executrix of Mr Suckling's estate under his will dated 22 August 2002.  Following a grant of probate dated 24 March 2020, the plaintiff was registered on title as owner of the plaintiff’s land.  Mr Suckling’s family has continued to farm the plaintiff’s land since October 2019.  Upon Ada’s death in 1992, the Maher Land passed to her daughter, Ms Katrine Anderson Kelly, but remained registered under Ada’s name.  

On 4 April 1996, Ms Katrine Kelly gifted the Maher land to her four children, Raymond John Kelly, Bernard Kelly, Elizabeth Kelly, and Nicole Schroeter (née Kelly) (“the Kelly siblings”), who were registered as joint proprietors. In 1998, the Kelly siblings entered a partnership agreement with each other for the use and maintenance of the Maher Land.  On 29 January 2018, Elizabeth Kelly sold the Maher land (which included the disputed land) to the first defendant.

Issues:

I. Whether or not the plaintiff and her predecessors in title have adversely possessed a small parcel of farming land owned by the first defendant (“the disputed land”). 

II. Whether or not acts of repossession occurred.

III. Whether or not time ceases to run against a freehold owner whilst the tenant is in possession.

Applicable law:

Limitation of Actions Act 1958 - refers to adverse possession as possession by a person in whose favour time can run and not to the nature of the possession. 

Transfer of Land Act 1958 - provides that the title of a registered proprietor is subject to any rights subsisting under any adverse possession of the land.

Butler v Dickson [2018] VCC 610 - provides that the payment of rates by an owner raises only a slight inference on the question of actual possession and is not in itself determinative.

Cobham v Joseph Frett (British Virgin Islands) [2000] UKPC 49 - provides that intermittent fishing will not amount to a clear and unequivocal act of prescription. 

Ghilarducci v Ghilarducci [1992] WASC 385 - held that mere use of a bore on a disputed boundary, as is the case here, was held to not establish possession in the whole or a defined portion of another’s land.

KY Enterprises Pty Ltd v Darby [2013] VSC 484 - provides that occasional use of the land itself will be insufficient to amount to retaking of possession.

Laming v Jennings [2017] VCC 1223 - provides that enclosure is strong evidence of adverse possession.

Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 - relied upon in contending that if what is granted by an instrument is not of its nature the right to possession or exclusive possession but rather the right to use the land for a particular purpose, there will prima facie be no lease. 

Robertson v Butler [1914] ArgusLawRp 133; [1915] VLR 31 - provides that the legal effect of acts relied upon as disturbances of possession must in every case depend upon the character of the possession which they are said to disturb. 

Tecbild Limited v Chamberlain [1969] EWCA Civ J 0212.6 - established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner.

Whittlesea City Council v Abbatangelo [2009] VSCA 188 - provides that in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession.

Analysis:

The defendants accept there has been use of the disputed land by Murray, the extent of which is challenged.  Whereas the defendants do not challenge the evidence of the Suckling family regarding use, they submit that Murray and Mr Suckling’s use does not amount to exclusive use for 15 years.  If the plaintiff cannot demonstrate 15 years of continuous and exclusive possession of the disputed land by Murray and/or Mr Suckling, the plaintiff’s claim must be dismissed.  The defendants conceded that from 1996 to 2013 Murray enjoyed exclusive use of the southern portion of the disputed land.

Murray maintained exclusive possession of the southern portion, both through acts of possession such as farming on the land and through an evident intention to exclusively possess the land including by enclosing the land with fencing.  Murray used the northern portion of the disputed land for farming and grazing.  While much of the land is not capable of being cropped due to its steep slopes, Murray’s use of the northern portion for grazing (including contracting with Sinclair Meats for agisting) manifests an act of factual possession that made evident to the world at large that he was not merely a trespasser, but rather someone seeking to take possession of the land from the registered proprietor.  Murray used water from the dam to irrigate crops and water stock on both the disputed land and the plaintiff’s land; clear acts of possession considering the nature of the dam in a farming context. 

The accounts of the defendants’ witnesses who fished on the dam, were on acts which alone did not affect Murray’s exclusive possession of the dam.  The fishing activities were intermittent and did not inhibit the main commercial purpose of the dam in an agricultural setting.  The fact that Murray applied for and obtained a water licence relating to the dam, is further evidence of his intention to possess the disputed land.

Conclusion:

The Court found that the plaintiff has established her claim to adverse possession of the disputed land.  The evidence demonstrated both sufficient acts of factual possession, together with the requisite intention to exclusively possess the disputed land by the plaintiff’s predecessors in title for the necessary period.   The Court is not satisfied that the defendants or their predecessors committed acts amounting to dispossession during the relevant periods.  The Court is also not persuaded that the leases relied upon by the defendants did have the effect of stopping the time running.  The first defendant’s registered title to the disputed land is extinguished pursuant to s18 of the Limitation of Actions Act 1958 and the plaintiff is entitled to be registered as proprietor of the disputed land.