MACKECHNIE V. BELL

Otago Daily Times, Issue 14465, 6 March 1909, Page 14

MACKECHNIE V. BELL

CLAIM FOR AX INJUNCTION. I On February, al the Supreme. Court at I Dunrdin, Isabella Macii'chnic sought to ohlain an injunction lo restrain Norman Harper Jiell from interfering with the plaintiff's right to light and air over an area of land in Princes street South, Dunedin, and £50 damages for trespass. Mr Solomon. K.C., with him Mr W. L. .Moore, appeared for plaintiff, ami Mr A. S. Adaim, with him Mr W. Downie Stewart, for defendant. llis Honor Mr Jindire Williams gave judgment, yoslordty as follows:-" In the present, case the weight of evidence is certainly in favour of ike contention of the defendant that the alleged trespass was the, result of an agreement with Mrs .Mackechnio that he, as landlord, should be allowed to make certain liberations in her premises which, if carried out, would be of benefit lo her. The defendant and Mr Annand holh testify to such an arrangement, and (hero was no interference with the- defendant's operations until it appeared that ihe defendant, in putting up his building on his own land, would interfere with the light or ouo of the plaintiff's windows. I think, therefore, that on tho question of trespass the. defendant is entitled lo succeed. It was not suggeMed, however, that there was any agreement that the defendant should be allowed to darken f.hi s window. The defendant claims to do this as of right, and the question is whether he is entitled by law to do so. The Corporation of Dunedin is the owner in fee under a certificate of title under the Land Transfer Act of, inlcr alia, two parcels < % f land, being lots 6 ami 7, of block XLII. in the City of Dunedin on a plan deposited at the Land Registry "llicc. The lois. adjoin each other, fronting on Princes street, lot 6 lying to the north of lot 7. Bv memorandum of lease, dated ,ttino 14, 1899, lot 6 was leased liv ;]ie corporation to a Mrs Sullivan for 21 years from May 12. 1899. By memorandum of transfer, dated November 22, 1902, .Mrs Sullivan transferred the above lease lo a Mrs China. Bv memorandum of lease, dated May 9, ~1906, lot 7 was leaded by the coruoralioii to Mrs Clyma for 21 years from April 1, 1906. At the time of the execution of this lease there were no buildings on lot 6. but on lot 7 there was .standintr the building now occupied by Mi's Mackechnio, with the window in question and other windows on the north side overlooking lot. 6. No right to the:- access of light or. air had lieen then acquired by prescription or otherwise in respect of these windows. Bv memorandum of lease, da'cd February "25, 1907, Mrs C'lynta sub-leased "lot 7 to Mrs Mackechnio (the plaint iff) for four years from February 15. 1907. In May, 1907, Mis Clyma, by"memorandum of tiansfer, transferred her interest in the two memoranda of lease a.bovo mentioned (o Mr Bell (the defendant). All the above instruments have been duly registered'under the Land Transfer Act. The question is whether the plainlilf, as sub-lesseo of lot 7, has as against the defendant, the lessee of lot 6, a right to the access of light and air to the windows on the north side of the premises. When Mrs Clyma executed the sub-lease to the plaintiff of lot 7 there was no such casement in existence. It is contended, how-over, that the memorandum of sub-lease created tho easement. There is no reference to any such easement in the memorandum of sub-lease, but it is contended that there i s an implied grant of sucli an easement. The seventy-sixth section of 'The Land Tiansfer Act," 1885' (t.hirty-eighth section, 1903), provides that where any estate or interest in land under the act is intended to he transferred, or any easement is interded to lie created, • the memorandum is to contain a precise statement of the estate or interest intended to be 'transferred or created. The thirty-sixth (thirty-eighth, 1908) section provides that no instrument is effectual to pass any estate or interest in any hind until registered in the manner prescribed by the act, but that upon such registration the estate or interest specified in such instrument is to pass. By section 61 (65. 1903) whenever an easement is created the registrar is lo enter a memorial of the instrument creating it on the certificate of title of the land with which it is to be enjoyed. Under tho Land Transfer Act, therefore, m order to create an easement the instrument must expressly purport- lo create one, and a memorial of tho instrument must be entered on the title of the servient tenement before any right to the easement passes. Section 61 165, 19CS) provides also that a memorial of it is to be entered in the title of tho dominant tenement. None of these tilings were done. The defendant's registered "title to Lot 6 does not show that it is subject to any easement, nor does the plaintiffs title to Lot 7 .show a right to any eavemcht. The defendant has, therefore, an unencumbered Land Transfer Act title to the lease of Lot 6, widely was granted by the corporation to Mrs Sullivan. Ths case of Mcckenzic v. the Waimnmu Queen Hold Dredging Company (21 N.Z., 231) has already decided that in order to create an easement under the Land Transfer Act. a transfer of the easement must be executed and registered. It was contended, liowever, that the memorandum of sublease from Mrs (Jlyma to Mrs Mackenzie was a conveyance within the meaning of section 55 of"'The Property L:uv Act, 1903,' and ,that as the access of light and air over Lot 6 was used and enjoyed with Lot 7 when tlie memorandum was executed, the memorandum operated as a grant of an easement over Lot 6. By subsection 4of section 1 of ' The Property Law Act, 1908,' it is, liowever, enaoted that the act is to be read and construed as as not to conflict with the provisions of the Land Transfer Act as regards land under that act. The essential principle of the Land Transfer Act is that whenever land under that act is to be made subject to any encumbrance, or to any casement, a. memorial of the encumbrance or casement must be registered against the title, of tho land. To do that it is necessary that the instrument tendered for registration must state specifically the interest to be created and the land to be affected. The principle is that the register of title to land is to show on its face wdiat the title is, a.nd that, everyone is entitled lo rely on tho titlo as it appears on the register without further investigation. If the al>ove. contention wore correct it would, follow that one easement could be created over land under llio Land Transfer Act. although uono of the. slops required by that act for the creation of a.n casement had been taken, and although there ws* no reference whatever lo the easement or to tho land lo be affected by it. either on the register or in the instrument by which the easement is said to have l>een created. This' would be in direct conflict with the whole principle and spirit of the Land Transfer Act. Further than this "The Light, and Air Act, 1894," enacted that after 'its passing no tei»ment should become servient to any other in respect of the access of light and air, and no person should acquire by prescription, grant, or otherwise any claim or right to the access of light or air from or over the land of any other person. To this, however, there is a proviso that a grant of the right of access of light or air made at any time after the passing of the act may be enforced if the grant be made by deed duly executed, and that the grant shall provide I hat the benefit thereof shall enure for a term not exceeding 21 years. The instrument in question does not fulfil these conditions. Apart from registration it is a mere contract, for a sublease It says nothing about an easement. It seems to me that since the act. of 1894 a. contract by a landowner to sell a house which has access of light .and air over his other land would not imply a contract, that his other land shall become servient, to the land sold in resoect of the access of light and air, and tliat the second section of tha act prevents such an implication. The words 'by prescription, jrant, or otherwise' certainty cover rights that might be acquired by presumed or implied grant. There must, I think, in such a case bs an express agreement to grant an easement on the terms allowed by the act. To put the case, however, in the way most favourable to the plaintiff, the utmost that, on possibly be contended is that as between Mrs Clyma and herself the execution of the memorandum of sublease taken in conjunc tion with tho then existing circumstances would amount to an implied contract by -Mrs Clyma to grant her an easement over Lot; 6. Any right, liowever, the plaintiff might have" would be against Mrs Clyma only. It would be only in case of fraud that the registered transferee of Lot 6 would be bound by any agreement, express or implied, between Mrs Clyma and Mrs Mackechnio that an easement should he granted over .it. There was no allegation or evidence of fraud on the part of the defendant. Th: plaintiff's counsel did not contend that there was fraud, and in fact admitted that there was none. The plaintiff has failed lo establish her right to the easement claimed. Judgment for defendant. Costs on lowest scale, second counsel, £5 ss: disbursements and witnesses' expenses to be fixed by Resistrar,