Long v Michie [2003] NSWSC 233

Long v Michie [2003] NSWSC 233

The right of way was not abandoned; there was extensive non-user but no unequivocal intention to abandon, and the obstructions placed were not substantial or permanent enough to infer abandonment. The right of way was not obsolete and continued to provide practical benefit for access and egress, including contemporary fire safety and waste removal requirements. The assertion that the right was limited to nightsoil removal was rejected; the language and historical purpose were broader. The right of way is still enforceable and is not extinguished under s 89(1)(a), s 89(1)(b), or at common law.

Jurisdiction
Australia
Judgment Date
07 April 2003
Procedural Posture
Equity Proceedings / Final Judgment
Outcome
Declarations granted affirming plaintiffs’ entitlement to the right of way. Orders for removal of obstructions, reinstatement of the right of way, and injunctions granted. Defendants' cross-claim dismissed. Issues of damages, final orders, and costs stood over for further submissions.
Legal Topics
['easements' 'rights of Way' 'extinguishment of Easements' 'abandonment of Easements']
['property Law' 'equity'] ['easements' 'rights of Way' 'extinguishment of Easements' 'abandonment of Easements']

Case Brief

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Procedural Posture

Equity Proceedings / Final Judgment

Legal Issues

  1. 1 ['Whether the right of way created in 1856 has been extinguished by abandonment at common law or should be extinguished under s 89(1)(a) or s 89(1)(b) of the Conveyancing Act 1919 (NSW)' 'Construction and purpose of the right of way – whether limited to carting nightsoil or of general application' 'Whether section 88 of the Conveyancing Act 1919 (NSW) affects enforceability']

Ratio Decidendi

The right of way was not abandoned; there was extensive non-user but no unequivocal intention to abandon, and the obstructions placed were not substantial or permanent enough to infer abandonment. The right of way was not obsolete and continued to provide practical benefit for access and egress, including contemporary fire safety and waste removal requirements. The assertion that the right was limited to nightsoil removal was rejected; the language and historical purpose were broader. The right of way is still enforceable and is not extinguished under s 89(1)(a), s 89(1)(b), or at common law.

Court Disposition

Declarations granted affirming plaintiffs’ entitlement to the right of way. Orders for removal of obstructions, reinstatement of the right of way, and injunctions granted. Defendants' cross-claim dismissed. Issues of damages, final orders, and costs stood over for further submissions.

Orders

  • ['Declaration affirming plaintiffs’ entitlement under the right of way' 'Order for removal of obstructions and reinstatement of the right of way' 'Injunction restraining defendants from interfering with the right of way' 'Defendants’ cross-claim dismissed' 'Further submissions to be made on damages, final orders,...