Ali v Dillingham [1977] FJSC 126; Civil Action 247 of 1975 (9 September 1977)

IN THE SUPREME COURT OF FIJI
CIVIL JURISDICTION

ACTION No. 247 of 1975

BETWEEN

JAFFAR ALI f/n Abdul
Plaintiff

AND

DILLINGHAM, WILKINS, GREEN a limited liability company
having its registered office at Suva.
Defendant

AND

THE ATTORNEY GENERAL
Third Party

JUDGMENT

This is a claim by the plaintiff, who carries on business (inter alia) as a supplier of gravel at Navua, against the defendants, a firm engaged in the construction of the Suva/Nadi Highway, for damages. The Attorney General has been joined as a third party as the defendants allege they are entitled to be indemnified by Government if they are held to be liable to the plaintiff.

The plaintiff is the registered proprietor of the lands described in certificates of Title Nos. 3894 and 3895. Both areas of land have a boundary on the Navua River but in the instant action the Court is only concerned with CT. 3894.

Towards the end of 1974 the Fiji Government negotiated with the plaintiff to permit the defendants undisturbed access across his land for the purpose of extracting gravel from the Navua River. For this right of access the plaintiff was to be paid ten cents per cubic yard of gravel extracted from the river. The terms of the agreement were recorded in a later dated the 5th November, 1974 addressed to the plaintiff by the Permanent Secretary, Lands and Mineral Resources (exhibit C).

Since this letter is relevant I set out the body of the letter in full.

"Dear Sir,

re: Access through Cst 3894 & 3895 Navua

I write to confirm our verbal agreement wherein it has been agreed that you will give unobstructed access to me, the Suva/Nadi Highway Contractors - Messrs Dillingham Wilkins and Green and to Consultants, Engineers and personnel engaged on the above project for the extraction of gravel from the Navua River and for inspection of the operations from time to time.

A payment of ten cents per cubic yard of river gravel extracted is payable for this right of access and is to be paid in arrears at the end of the month following extractions. Such payment is to be made by the Secretary for Works - Public Works Department on receipt of a certificate of quantities from Messrs Rendall Palmer and Tritton the Consultants for the Suva/Nadi Highway project.

The agreed price of ten cents per cubic yard has only been agreed because of the possible interference with your own operations and is not to be construed as a precedent for the future.

Yours faithfully,

(SGD) J.S. Singh

(J.S.Singh)

for Permanent Secretary,

Lands & Mineral Resources."

The plaintiff claims damages from the defendants for loss of business due to alleged unlawful action by the defendants in depleting the plaintiff's gravel sources and supply of gravel, for loss of contracts and for trespass and creating waste.

It is convenient to deal with the minor issues of trespass and alleged loss of contracts before dealing with the major issue but before doing so I would comment on the state of the Copy Pleadings filed by Mr. Rasheed.

Copies of the Pleadings dated 21st February, 1977 were duly filed. These included copies of some 13 documents. The index indicates 90 pages but the pages were not numbered. When the trial commenced the Court pointed out to Mr. Rasheed that the Pleadings were not in order and included documents which should not have been included. Without specifying all such documents the Pleadings included copies of affidavits, notices and interlocutory summonses. The Defences was not included.

On the 11th May, 1974 Mr. Rasheed filed further copies of the Pleadings which were still not in order and again included many documents that should not have been included. The Defence was not included although the Defence of the Third Party was included.

It should not be necessary for a Court to have to point out to counsel what should and what should not be included in the Pleadings. Mr. Rasheed's attention is drawn to Order 34(3) Rules of the Supreme Court as amended by the Supreme Court (Amendment) (No. 3) Rules 1971 which appear as Legal Notice No. 152 of 1971.

It was not disputed that the plaintiff is registered as proprietor of the freehold lands contained in CTs. Nos. 3894 and 3895.

A photocopy of CT. 3894 was put in evidence by the plaintiff. The photocopy was not certified as a true copy by the Registrar of Titles but no objections was taken by counsel for the Defence to the photocopy being admitted as evidence as ownership of the land was not denied.

However, it is apparent that the photocopy is an incomplete copy. There is attached to the front sheet which purports to be a photocopy of CT. 3894 a half sheet showing the plan and description of the land on which there is one decipherable memorial and one which is only partially decipherable showing the name Balram. There is no memorial showing transfer of the land to the plaintiff. It is obvious that only half the second page of CT.3894 has been photocopied. There is however in exhibit "F" another photocopy of the half page on which there is a memorial showing transfer of the land to the plaintiff.

If a photocopy of a document is put in as evidence counsel should ensure that the photocopy is a complete and legible copy.

It is of importance in this case as a photocopy of DP. 3842 exhibit 'B' which is a plan of CTs. 3894 and 3895 indicates 3 lots on CT. 3894 and has endorsed on it "Lot 3 to be dedicated first before any further dealings are accepted on this plan" DP. 3842 was registered on 26th July, 1972.

The plaintiff testified he purchased CT. 3894 in January, 1973. This cannot be verified from the partially decipherable memorial on exhibit 'F' to which I have referred, but I accept that date.

If Lot 3 was dedicated prior to transfer of the balance of CT. 3894 to the plaintiff in January 1973 I would have expected CT. 3894 to be cancelled and a new title issued. With only half the second page of the title showing on the alleged photocopy on which page the memorials would normally appear there is no evidence before me as to whether Lot 3 was in fact dedicated before the transfer to the plaintiff. Of greater importance is whether there was any application by Balram, the plaintiff's immediate predecessor in title to rectify the area of his title to include Lot 2 on DP. 3894 which is land alleged to be accretion to the plaintiff's title. It is from Lot 2 that the plaintiff alleges the defendant unlawfully extracted gravel.

No basis was laid in the Statement of Claim as it should have been claiming that Lot 2 which fell outside the area described in the title was land belonging to the plaintiff due to accretion and that the defendants took gravel from Lot 2.

In Frost v. Palmerston North - Kairanga River Board (1916) 35 N.Z.L.R. 643 a case concerned with a claim to accretion to land with a river boundary the Statement of Claim alleged the plaintiff was the owner of a parcel of land together with an accretion thereto caused by the gradual deposit of silt and shingle from the adjoining river.

In my view the plaintiff should have pleaded that Lot 2 DP. 3842 was part of CT. 3894 as being accretion to the title. When alleging that the plaintiff held the land comprised in CT. 3894 the DP. Reference to this title was 3689 which was not correct.

The plaintiff did, however, produce a copy of DP. 3842 which is a plan of CTs' 3894 and 3895. Since the defendants denied they had extracted gravel from the plaintiff's land and conducted their defence on the basis of this denial no great harm has been done by the plaintiff's failure to properly plead his case. The Court however may have had more information as regards Lot 2 on DP. 3842 to which I will refer later in this judgment. At the hearing the question whether Lot 2 was accretion to the title became the major issue of which the pleadings gave no hint.

The plaintiff alleged that there were rich deposits of gravel both on his land (CT. 3894) and in the river and the basis of his claim is that the defendants took gravel not only from the river but also unlawfully from his land.

I was not impressed with the plaintiff and do not consider him truthful. He alleged that he used to get $80,000 to $90,000 gross income from his gravel business - presumably this was annually although he did not say so nor did he produce any documentary evidence to substantiate these figures. He alleged that because of the defendants' illegal actions in taking gravel from his land his clients threatened to sue him for breaking his contracts to supply gravel. No contracts were produced by him. Under cross-examination the plaintiff admitted there were no written contracts but only verbal contracts. It is apparent from his evidence that what he complains about is that if and when he received orders to supply gravel he could not do so because of the defendants' operation on his land. He alleged his business came to a standstill.

The plaintiff had to admit figures produced by Mr. Flower (counsel for third party) which indicated that after the defendants commenced operations he was still supplying gravel to his customers in quantities which were comparable to quantities he supplied in the months before the operations began. For example the plaintiff supplied 150 cubic yards in August 1974 and 100 cubic yards the following month. The defendants commenced operations on 4th November 1974. In that month the plaintiff supplied 150 cubic yards, in January 1975 160 cubic yards, and in March of that year 200 cubic yards. It cannot be said his business came to a standstill.

I have referred to some only of the discrepancies. There are many others. Suffice it is to say that the plaintiff is a man on whose veracity I can put very little reliance.

Dealing with the allegations of trespass the plaintiff's case is that the defendants used his land during the operations, which extended from 4th November 1974 to some date in April 1975, for parking of vehicles and equipment on his land. He alleged 2 or 3 acres of his land were affected by the defendants' operations and that he had not agreed to this and had in fact protested to the defendants' officials on several occasions.

Exhibit 'C' clearly indicates that the only right negotiated by Government with the plaintiff was for unobstructed access across the plaintiff's land to the Navua River.

Mr. Kenneth J. Crall, a civil engineer, employed by the defendants, whose evidence I accept, told of a meeting he and a Mr. Shwartz had with the plaintiff just before operations began. The purpose of the meeting was to discuss how the defendants were to carry out their operations on the plaintiff's land. The plaintiff's road across his land to the river required upgrading. It was agreed that the defendants would upgrade this road and there were discussions about the defendants using the plaintiff's land to park equipment. The plaintiff asked if he could draw on the defendants' stockpile of gravel and it was agreed that the plaintiff could take gravel if the defendants could make use of his land for storing or parking equipment.

The plaintiff admitted he did take gravel from the defendants' stockpile although he would not admit to taking as much as Mr. Crall said he did take. There was a hole in front of the plaintiff's land which the defendants filled to form a hard stand for its vehicles.

I do not believe the plaintiff and accept Mr. Crall's evidence that there was a quid pro quo for the defendants' use of the plaintiff's land, which was confined to a small area, and find as a fact that there was no trespass by the defendants on the plaintiff's land so far as the alleged use of the land for parking vehicles, erection of generator-shed or turning of vehicles was concerned. The claim for damages for trespass fails.

So far as the claim for damages for alleged loss of contracts, which I interpret as loss of business, is concerned exhibit 'C' indicates the plaintiff was paid a special price to compensate him for possible interference with his own operations. He did not establish that he lost anything over the period in question. The evidence indicates that the amount he received at 10 cents a cubic yard amounted to a figure a little in excess of $5,300 in a period of about four months. Figures the plaintiff admitted to showing the level of his operation just prior to November 1974 would indicate that the return of 10 cents a cubic yard was a very satisfactory one for merely providing access across his land. In addition as I have mentioned he continued supplying gravel during the period at a level comparable to what he supplied before.

The plaintiff did experience difficulty in extracting gravel after the defendants left the area. The plaintiff moved in with his equipment to extract gravel and found he could not reach the gravel. The defendants had dug a deep hole in extracting gravel with the use of a dragline. The plaintiff also had a dragline but it had a boom of only about one-third the length of the defendants' boom and he could not reach the gravel. He says he had to borrow money to purchase a bigger dragline which he purchased in 1976 and he filled in the hole the defendants dug with 120,000 cubic yards of gravel to level off the land. This 120,000 cubic yards represented close on 10 years' supply of gravel at the rate he was supplying gravel before the defendants started operations on his land. He did contend that the filling was necessary to protect his land and there was evidence that the defendants had extracted gravel closer to his boundary than would have been permitted by Government if the defendants has a licence to extract gravel which they did not have but the plaintiff offered no evidence as to the cost of filling in the hole or any evidence that it was necessary to protect his land.

The defendants cannot be held liable for any expense incurred by the plaintiff due to the fact that his dragline was too small to work the gravel deposits.

I find as a fact that the plaintiff has not established that he suffered any loss to his business during the defendant's operations on his land and his claim in this respect fails.

I have now to consider the main issue whether in extracting gravel the defendants took gravel from the plaintiff's land.

The plaintiff in evidence in chief stated that Government informed him that the defendants wished to extract gravel from the Navua River and his land and he confirmed this in an answer to the Court. Mr. Knight very fairly admitted that the defendants never understood the negotiations between Government and the plaintiff envisaged the defendants' extracting gravel from the plaintiff's land and their case rested on their denial that they took any gravel from his land.

It was agreed by counsel that the total gravel extracted by the defendants was 53,310 cubic yards but I have no evidence as to how much was taken from the river and how much from the land the plaintiff claimed was his land, other than an estimate by Mr. Beale that 25,000 yards came from the river and 25,000 from the shingle beds. How Mr. Beale arrived at these figures was not stated by him.

The plaintiff in his Statement of Claim stated he held "land in fee simple comprised in CT. 3894 DP 3689 - CT. 3895 DP 3842" this was admitted in the Defence. No areas were shown and as I have already stated no basis was laid by the plaintiff to allege that CT. 3894 contained an area by accretion larger than the area of 23 acres 1 rood 11 perches shown in the title. A copy of DP. 3689 was not produced. A copy of DP.3842 was produced and indicates thereon that it is a plan of CTs 3894 and 3895.

DP. 3842 shows 3 Lots in CT. 3894. Lot 1 - 22 acres 1 rood 23 perches. Lot 2 - 1 acre 3 roods 02 perches and Lot 3 - a road reserve, 1 rood 15 perches. Lots 1 and 3 in area total 22 acres 2 perches 38 perches which is less than the area shown in the title. Mr. Farid Khan, a surveyor, called by the plaintiff calculated that the original area in title 3894 was 23 acres 1 rood 36 perches. Mr. Bruhns, a surveyor, called by the defendants, threw considerable doubt on the accuracy of the survey carried out by Mr. Carter in 1972 represented by DP. 3842 and Mr. Khan's calculations. Mr. Khan also found Mr. Carter's plan to be incorrect.

It was only during the trial that it emerged that Lot 2 was the area that the plaintiff claimed was his land by the law of accretion. The pleadings gave no hint of this claim.

Photocopies of aerial survey photos are attached to Mr. Khan's report exhibit 'F'. They are so faint as to be almost useless but Mr. Khan has plotted on the photos the plan of the plaintiff's land as taken from DP. 3842. The first photo Plan 'E' is a photograph taken in 1953. Lot 2 shows a dark area similar to land. The other photograph Plan 'F' (though not so marked) shows that Lot 2 is a totally white area which would appear to be shingle devoid of any vegetation.

A further photo (not a photocopy) is on file not marked as an exhibit and was produced when the Court complained about the poor quality of Plans 'E' and 'F'. My recollection is that it was supposed to be a photo of which either Plan 'E' or 'F' was a copy and it was accepted on this basis. A study of this photo indicates that Plans 'E' and 'F' cannot be a photocopy of this photo although it resembles the 1967 photo but taken from a much greater height unless Plan 'F' is an enlargement of part of this photo. I accordingly ignore this photo.

What these aerial photos 'E' and 'F' do highlight, however, is that between 1953 and 1967 there is a marked change of the area in Lot 2. In 1953 it appears to be all land and in 1967 all shingle showing either the effect of the river during those years or operations on the land.

In April 1972 when Mr. Carter carried out his survey Lot 2 was entirely shingle bed according to the notation on the plan.

The plaintiff however would have the Court believe that by the time he purchased the land 8 months later this area was dry land with earth on it and grass and guava growing on it which he states he cleared. I do not believe him.

Mr. Beale, a mines inspector, called by the plaintiff spoke of a visit to the plaintiff's land in May or June 1973 and described the then existing gravel deposits - a shingle bed which had disappeared when he visited the area in June 1975.

Mr. Seque a works supervisor employed by the defendants who was on the site virtually every day gravel was being extracted gave evidence. He stated that where gravel beds were high they were out of the water but otherwise the river water came right up to the vegetation on the river bank. He took photos and produced four of them (exhibits B1 - 4).

Photos 1 to 3 were taken the first day the defendants commenced operations. Photos 1 and 2 clearly show water right up to the point on the plaintiff's land from which the photos were taken. Photo 3 shows a well defined river bank visible gravel and a lot of water. Photo 4 is taken from the opposite bank and shows the plaintiff's land and equipment thereon. Nowhere in these photos is there any sign of shingle beds above water as appear in Plans 'F' exhibit 'F' and as found by Mr. Carter.

Whether the shingle bed has disappeared as a result of the plaintiff's operations or the operations of others or the action of the river or a combination of these factors I am unable to determine from the evidence before me.

I accept Mr. Seque's evidence that photos 1 to 3 of exhibit 'G' were taken the day the defendants commenced operations. These photos clearly indicate no well defined shingle deposits above water. Mr. Crall also confirmed Mr. Seque's evidence.

The plaintiff's case in Court was that all the gravel extracted by the defendants came from Lot 2 DP. 3842 and that Lot 2 was the plaintiff's land.

CT. 3894 was issued on 23rd December 1914 and contains reference to CT. 3068 and Crown Grant Titles Book C Folio 325 with the reservations contained therein. There was no evidence as to whether there were any reservations. The area shown in the title is 23 acres 1 rood and 11 perches. The description of the land indicates that the Navua River boundary was its left bank along the high water mark. There was no evidence that the river was tidal at that point and such evidence as there was indicated it was non tidal. There was however a definite bank and this is also shown in Carter's Plan DP. 3842 and indicated thereon by claw marks. Photo No. 3 of exhibit 'G' clearly indicates a river bank. According to the title that bank is the plaintiff's river boundary whether it is in the same position now as when the area was surveyed in 1905 or even in 1972 when Carter carried out his survey or as it exists today.

Mr. Farid Khan a registered surveyor gave evidence for the plaintiff and submitted a report with a number of plans. His report which is undated states that the original survey done on 3rd January 1905 was not correct for reasons which he stated. He stated that the length of one boundary was shown as 2873.6 links and this should have been 2922.6 links because a bua bua peg was set 49 links back from the river bank. What this witness overlooked is that on the same boundary the figures of 2819.15 CR (whatever 'CR' may mean) are shown in brackets. If to this figure the figures of 49 links and 5 links the distance two pegs are set back from boundaries are added together the total is 2873.5 which approximates the figure of 2873.6. The figure of 2819.5 in brackets is in my view the distance between the two pegs and the figure of 2873.5 is the distance from boundary to boundary.

By adding 49 links onto 2873.5 Mr. Khan ended up with his river boundary 49 links further forward and this puts all his calculation out. My view is confirmed by the evidence given by Mr. Bruhns a registered surveyor.

Mr. Khan was of the view that Mr. Carter's Plan DP.3842 also contained errors, a view shared by Mr. Bruhns. The plan, however, was approved as to survey and registered.

Because of his error I cannot accept Mr. Khan's report except where it is confirmed by Mr. Bruhn's evidence which I accept or other acceptable evidence.

Mr. Bruhns produced a number of plans which he had prepared after surveying done by him on the plaintiff's land and after a detailed search of titles and previous surveys of the plaintiff's land.

Mr. Bruhns stated that Carter's plan DP. 4155 in respect of Danford's land CT. 3857 which adjoins the plaintiff's land and which was adopted by Surveyor Tapper did not tally with what was on the ground. Surveyor Knight who gave evidence for the defendant's stated DP. 4155 showed accretion to CT. 3857 but as Surveyor Knight testified he found part of Lot 5 (the alleged accretion area) was in fact under water. Mr. Bruhns checked the northern and southern boundaries of the plaintiff's land and found that the survey information disclosed an error. He stated that Carter's survey DP. 3842 showed the original river boundary in the incorrect place and that it should have been shown further forward at the position shown by the front yellow line in plan exhibit 'L'. Mr. Bruhns tendered Surveyor Tapper's plan exhibit 'M' and expressed his opinion that Tapper had either not established the river boundary or there had been a change of the river bank.

He referred also to Belcher's survey done in September 1971 (exhibit 'K') and stated Belcher's note book indicated that gravel operations were then taking place in an area adjoining the plaintiff's land. He said the significance of this was, that the shingle bed could have been disturbed, and when Carter surveyed the land the bank could not have been in its natural state.

Mr. Bruhns produced a plan he initially prepared (exhibit 'N'). The shaded yellow area shows shingle as appears in the 1967 aerial photo. The curved line edged red is Carter's land (DP. 3842) and the dotted line forward of it is the bank as Mr. Bruhns found it in 1975.

If Carter's 1972 line is correct, and there is considerable evidence that it is not, what it indicates is the bank has moved back since the 1905 survey and this is confirmed by Belcher's survey of 1971 which shows both erosion and slight accretion. By the time Mr. Bruhns surveyed in 1975 the bank had moved forward but not to the original boundary line (N.S. 174 of 1905).

Exhibit 'L' a plan drawn by Mr. Bruhns on which he has plotted a compilation of surveys of the plaintiff's land indicates the variations in the river boundary of the plaintiff's land.

Except for an area on the southern boundary Mr. Bruhn's survey in June 1975 and Belcher's in July 1971 indicate only minor variations in the position of the river bank. The southern portion of the boundary judging by surveyor Khan's survey of October 1975 indicates that between July 1971 and October 1975 the water line had encroached beyond the original survey line and Belcher's 1971 survey line but not as far as the definite river bank by Mr. Bruhns in June 1975.

What exhibit 'L' also discloses is that the shingle bed shown in Carter's plan between Carter's water line of April 1972 and Khan's water line of October 1975 has disappeared. Both Carter's and Khan's survey are suspect but on the evidence it is clear that the shingle bed has disappeared but when it disappeared I cannot ascertained.

On the evidence of the photo exhibit 'G' (photo 3) and Messrs. Seque's and Crall's evidence there was no shingle bed as found by Mr. Carter in April 1972 existing on 4th November, 1974.

In my view the original grant of the plaintiff's land bounded by the Navua River did not entitle the grantee to claim that he held the land ad medium filum aquae. This is clear from the Rivers and Streams Ordinance where it is stipulated that all waters in Fiji which the natives have been accustomed to traverse in takias or canoes and the soil thereunder shall belong to the Crown and in respect of streams the bed thereof also belongs to the Crown. The common law presumption that a river boundary extends to the middle line of the river is excluded by the Ordinance.

In Kingdon v. The Hutt River Board (1906) 25 N.Z.L.R. p.145 it was held that the bed of the river extends from bank to bank.

Stout C.J. at pages 157 - 8 stated:

"But in the ordinary rainy season the water is confined within the bank and as it frequently extends from bank to bank during such season and reaches the bank on the claimant's land we are of the opinion that the shingle from bank to bank is within what may properly be called the "bed" of the river although the water of the river does not in the dry weather ordinarily flow over such shingle."

It was also held in Kingdon's case that all shingle which was brought down from time to time by the river and deposited in the bed of the river opposite the claimant's land became part of the bed of the river and that the claimant's right did not extend to shingle deposited in the bed of the river.

The evidence before me convinces me that the shingle bed when it existed was a bare shingle bed devoid of vegetation. There was no evidence of a bank between the shingle and the water of the Navua River nor any acceptable evidence that any earth had built up on it. This would indicate that the action of the water had prevented growth and accretion of land as distinct from shingle. On the evidence the shingle bed was part of the bed of the river and vested in the Crown. This would dispose of the plaintiff's claim but for the apparent acceptance of DP. 3842 by the Registrar of title.

Approaching this problem from another angle and that is whether there was in fact any accretion to the plaintiff land it is necessary to consider whether there can be any accretion to land under the Land Transfer Act. The Act is silent on this point but the law is clear that where land is bounded by a river under the Torrens system there can be accretion and erosion as the boundary advances or recedes due to the action of the river.

In Attorney General, Ex Relatione Hutt River Board and Hutt River Board v. Leighton (1955) N.Z.L.R. 750 law of accretion to land was fully discussed. This case is of assistance as it dealt with land under the Torrens System which had a river boundary where by statute the bed of the river was vested in the Crown. In this case the minority judgment of Adam J. is of assistance at p. 783/4 he states:

"In the case of the river boundary, the boundary may be variously stated as being the river, or the water, or the banks of the river; but the meaning is always the same. Where there is a defined river-bank, the line is not the top of the bank, but the line to which the water comes Clarke v. City of Edmonton (1929 4 DLR 1010, 1024) the reference being of course, to the line of the water when it exactly fills the bed in a normal flood or fresh; and a river boundary of this kind is also the boundary of the land."

He goes on to say at page 784:

"A river consist of the water the bed and the banks - the banks being the outermost points of the bed on either side and the bed being the ground covered by the water at its fullest flow in the ordinary floods:......It is well established that the boundary line of lands bounded by water is not a fixed and unchanging line but one that shifts or fluctuates in accordance with the natural changes in the position of the bed occurring by gradual and imperceptible processes."

In Humphrey v. Burnell 1951 N.Z.L.R. p. 262 it was held that the principles of law relating to accretion apply to Land Transfer land so that, when accretion or erosion takes place an owner may become entitled to or more or less land than is evidenced by his certificate of title.

The law is clear that if in fact there has been accretion to land that land belongs to the owner of that land.

Where I have experienced difficulty is due to the fact that DP. 3842 on the face of it was accepted for registration and whether by virtue of that registration Lot 2 is included in CT. 3894.

If in this case there had been accretion to the land in CT. 3894 it would follow that the title would be incorrect. This could be corrected by an application to the Registrar of Titles for the addition of the accretion.

There is no evidence before me as to the procedure followed in Fiji other than the evidence of surveyors who practiced in Fiji. Land which is claimed as accretion must be shown as a separate lot as was shown by Carter in DP. 3842. I have no evidence as to what procedure the Registrar of Titles follows when such plan is deposited.

A complete copy of CT. 3894 might have shown that the title had been corrected as to area and description but I am in the dark as to how the plaintiff acquired title in view of the notation on the plan that there would be no further dealings accepted until Lot 3 was dedicated. I would have expected that if Lot 3 had been dedicated a new title would have issued to the plaintiff when the title was transferred to him on which a plan of Lots 1 and 2 DP. 3842 would appear and the area shown in the title would be the area of these two Lots. These did not happen and the plaintiff's title is still CT. 3894.

This leads me to the view that while the plan has been registered no action might have been taken to establish that Lot 2 is accretion to the title. The plaintiff neither pleaded that Lot 2 was accretion nor satisfactorily established that it was accretion.

Some guidance can be obtained from the Australian and New Zealand procedure which countries also have the Torrens Land System.

In New Zealand there must be application for correction of the certificate of title supported by a statutory declaration. There must be a supporting corroboration declaration from at least one disinterested person. The declarations are expected to establish the following matters.

1. Accretion has arisen from natural causes.

2. Accretion has been gradual and imperceptible.

3. Accretion is not subject to ordinary floods.

4. That vegetation now grows on it.

5. That the new bank of the water is of a permanent or solid nature and not liable to wash away under ordinary conditions.

In the instant case the acceptable evidence indicates that the vegetation was not growing on the shingle bed and there was no new bank of a permanent or solid nature.

Notice of application is given by the New Zealand Transfer Office to all persons who may be detrimentally affected. In the present case the Crown is interested as owner of the bed of the river.

The application is also required to be supported by a plan of survey.

In New South Wales where a plan lodged for registration shows a boundary defined by the line of a bank of a non tidal river in a position different from that shown in the basic survey plan it will be determine by investigation whether the change occurred either gradually and imperceptibly or by accretion or is the result of erroneous basic survey information.

Before the plan is registered the attitude of any adversely affected landowner will be ascertained either by his consenting to the plan or by the Registrar General serving him with notice.

Unsatisfactory as the evidence is it is a fact that DP. 3842 which purports to be a plan of CT's 3894 and 3895 and which contains a notation that it has been approved as to survey has been accepted for registration.

Lot 2 shows the old high water mark and a bank between the land and the shingle bed. There is no bank between the shingle bed and the water. The doubts thrown on the accuracy of Carter's DP. 3842 and the foregoing features shown on the plan should have resulted in the plan being rejected but it was not. I must therefore accept that when the plan was registered on 26th July 1972 the Registrar was satisfied that Lot 2 was part of CT. 3894, and was part of the plaintiff's land.

I am concerned, however, with the position as at 4th November 1974 when the defendants commenced their operations extracting gravel. I am satisfied that on that date the shingle bed no longer existed. The cause of its disappearance between July 1972 and November 1974 is not known but it is clear that gravel was extracted during that period.

The evidence before me indicates a number of changes of the shingle bed which in 1972 Carter made Lot 2 on DP. 3842.

In 1953 aerial photo Plan 'E' shows that Lot 2 was virtually all land. In 1967 aerial photo Plan 'F' shows Lot 2 as being all shingle. Exhibit 'N' refers to an aerial plot in 1968 showing a boundary between the plaintiff's land and a well defined shingle area similar to the shingle shown in the 1967 photo. On exhibit 'N' is shown Carter's river boundary surveyed in 1972. It is clear that between 1968 and 1972 a good half of the shingle bed in front of the plaintiff's land had disappeared. In 1973 there was still a shingle bed but the extent of it is not known. By 4^th November 1974 according to witnesses called by the Defence and as appears from the photos exhibit 'G' the shingle bed of 1972 no longer existed.

The evidence satisfies me that Lot 2 if it was accretion in 1972 and part of the plaintiff's title was by November 1974 part of the bed of the Navua River and vested in the Crown. I find as a fact that that was the position in November 1974 and since the plaintiff's case is that gravel was extracted by the defendants from Lot 2 and not Lot 1 DP. 3842 the extraction of gravel was not unlawful and the plaintiff's claim fails.

The plaintiff's claims against the defendants are dismissed with costs to the defendants.

Since the question of indemnity does not arise in the third party action the defendants' claim against the third party is dismissed with no order as to costs.

(SGD) R.G. Kermode
JUDGE

Suva
9th September, 1977.