Aboriginal Land Rights Essay Research Paper 10

2. A requisite intention to possess, animus possidendi; adverse to another party (Buckinghamshire County Council v Moran [1989] 2 ALL ER 225).

[2.2.2] Application

David expended time and money on repairing the homestead, and started a domestic vegetable garden. He also borrowed money to buy two fibre-glass water storage tanks to use in his vegetable garden. It would appear from these facts that David demonstrated exclusive physical control and the animus possidendi

[2.2.3] Continuous Possession for 12 Years

For adverse possession, Charlie must have been dispossessed for a continuous period of 12 years (Limitation Act 1935). David dispossessed Charlie of the land in June 1988 and will therefore need to dispossess Charlie until June 2000 to successfully claim adverse possession.

[2.3] Abandonment

When an adverse possessor abandons possession before the limitation period runs out, his or her possessory interest ceases to be effectual for any purpose. (Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 (CA). Abandonment requires:

1. factual abandonment

2. a manifest intention to abandon

[2.3.1] Application

It would be dubious to suggest that David ‘abandoned’ the land in October 1998 when he left to be with his ill mother in Perth. Charlie did not express a manifest intention to abandon the property and in fact it is stated that he hopes to develop the freehold into a tourist retreat.

[2.4] Time stopped from running

Before the limitation period expires it may be stopped from running by the true owner asserting ownership by effective resumption of possession rights. (Symes v Pitt [1952] VLR 412)

[2.4.1] Application

Charlie’s discussion with David’s mother is insufficient to amount to resumption of possession.

[3.0] FIXTURES

The general maxim, is what is annexed to the land becomes part of the land. (Holland v Hodgson (1872) LR 7 CP 328)

[3.1] Degree of Annexation

The water storage tanks rest on the ground at the back of the homestead. They are not affixed in anyway however water is piped from the tanks to the homestead most likely through underground piping.

[3.2] Object of Annexation

The water tanks are clearly intended to be permanent fixtures because they are used for domestic purposes and may in future be utilised for David’s vegetable garden. The tanks are also an improvement to the realty and removing the tanks would impair the functioning of the principal object. (Holland v Hodgson (1872) LR 7 CP 328)

[3.3] Consequence

Despite the lack of physical annexation I believe the object of annexation is sufficient to warrant the tanks being classified as fixtures.

[3.4] Rights of Water Tanks Australia Ltd (WTA)

At the present stage, Charlie still has title over the freehold therefore WTA will not be able to remove the tanks if the contract is dishonoured because Charlie’s interest was taken for value without notice of WTA’s interest and in such circumstances Charlie’s interest will prevail over WTA’s. (Hobson v Gorringe [1897] 1 Ch 182 (CA).

WTA will have a contractual right to enter and sever the tanks in order to repossess them if David acquires title to the freehold and fails to honour the contract. The right to ‘enter and sever’ will also give WTA an equitable interest in the land however the physical extent of this equitable interest in unclear. (Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd) [1962] VR 429)

[4.0] POSSESSION OF CHATTELS FOUND ON OR IN LAND

The finder of a chattel on someone else’s land acquires possessory rights over the chattel against all save:

1. The actual owner

2. The employee of the finder where the finder is acting in the capacity of an employee

3. The occupier of land where the occupiers control over the chattel in question is manifest

An occupier’s control will be manifest where the chattel is either attached to or buried in the land (South Staffordshire Water Co v Sharman [1896] 2 QB 44)

[4.1] Application

The space junk is embedded in the surface therefore the Marla people as occupiers of the land will acquire a possessory right to keep the space junk against all but the true owner. The Marla people have an obligation to take reasonable measures to inform the true owner of the finding and to care for it meanwhile.

[5.0] RIGHTS TO WATER

Water flowing in a defined channel on the surface of land is regulated by the common law riparian doctrine. Therefore the owner of the bed or the banks of the watercourse flowing over the surface of the land has a right to interfere with the flow of the water as long as do not diminish the quality or damage the quality of the water (Acton v Blundell (1843) 12 M & W 324 [152 ER 1223] ).

[5.1] Application

Charlie is therefore entitled to use the water from the stream flowing through the freehold as long as he meets the above requirements

CONCLUSION

Native title is extinguished by the freehold grant and the 21-hectare lease but not by the reserve grant. The pastoral lease may extinguish some but not all incidents of native title. Charlie’s title to the freehold will not be terminated until the expiration of the limitation period. The Marla people will acquire possessory rights over the space junk.