Bohn v Badman [2009] VUSC 39; Civil Case 43 of 2007 (22 May 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 43 of 2007

BETWEEN:

ROBERT LAMAR BOHN AND LINDA FRANCES BOHN
Claimants

AND:

STEVE BADMAN AND MAUREEN PAULI
Defendants

Coram: Justice N. R. DAWSON

Counsel: Claimants: Mr. N. Morrison
Defendants: Mr. J. Ozols

Date of Hearing: 11th May, 2009
Date of Decision: 22nd May, 2009

DECISION

1. The Claimants seek a declaration confirming that they have the right to the use of a right of way over the Defendant’s property where a roadway physically exists on the land belonging to the Defendants, and that the Defendants have no lawful right to obstruct the use and enjoyment of the right of way by the Claimants.
   
2. In 2004, the Claimants purchased their parcel of land adjoining a parcel of land purchased by the Defendants in 2005. The registered leases of both titles of the land show a right of way that passes over the Defendant’s property to the Claimant’s property. The leasehold titles to those parcels of land show the right of way for the portion that is in dispute in dashed lines. The Claimants say that the right of way is shown by dashed lines as the right of way itself has never been properly surveyed and the dashed lines show the approximate position of the right of way and that it was intended to be where a roadway has physically existed since about 1990. The Defendant contends that the existing roadway is not exactly where it is shown on the plan by the way of dashed lines and that the only right of way that the claimants are entitled to use is exactly where the dashed lines show it is to be.
   
3. The land owned by the Defendants will in this decision be referred to as land title O59, the land owned by the Claimants will to be referred to as land title O60. A third property owned by the Claimants and their daughter in law will be referred as land title O61. The right of way runs from a private road across the land in title O59 and across the land in title O61, and ends at land title O60. It is only where the right of way appears on land title O59 that is in dispute.
   
4. The Second Schedule of the Claimants land title refers to a right of way 4 meters wide as shown on titles O59, 060, and O61. The First Schedule of the Claimant’s title records that the maintenance of the "existing right of way easement" is to be shared by the owners of titles O59, O60, and O61. It is quite clear that an easement exist, all that is really in dispute is where right of way legally runs over title O59.
   
5. Evidence was given by Mr. Arthur, the surveyor of a survey plan creating the O59 title from a sub division of another title belonging to a person called Pochenska. His evidence was that the existing sealed road access through the Pochenska property giving access to the O59 title then to the O61 and O60 titles was to be preserved after the subdivision creating the O59 title. His evidence was that the right of way was not surveyed and because it was not surveyed it was marked on the plan with dashed lines which he said is confirmation that it was not surveyed. Had it been surveyed it would be shown on the plan with solid lines.
   
6. Evidence was also given by Mr. Tari, a surveyor, who in April 2007 was the Acting Surveyor General for the Department of Land in Vanuatu. His evidence confirmed a letter that he wrote as the Acting Surveyor General dated 3rd April 2007 to Mr. Bohn confirming that the right of way in favour of the O60 and O61 titles were shown on the plan with dotted lines to indicate that access can be anywhere through the O59 title until a proper survey of the right of way is carried out. During the hearing he agreed that the right of way shown by dotted lines was intended to be approximately where the right of way should be.
   
7. About 1 year ago the Defendant had Mr. Arthur prepare a further plan referred as plan SB3 which is attached to Mr. Badman’s sworn statement. That plan shows where the physical roadway actually is on the O59 title and it is referred to on that plan as "Actual Road". Also shows where the right of way, referred to the "Proposed Road", would be if it was where the plan attached to the O60 title shows the right of way by dashed lines. One side of the "Proposed Road" passes through a point on the boundary between the O59 and O61 properties and a further property not relevant to these proceedings. The Defendant’s contention is that the legal right of way must be measured from that point as that is where it appears on the map attached to the titles to the O59, O60 and O61 titles.
   
8. The evidence of both surveyors is that the right of way over the contentious area was shown by dashed lines specifically because it was not surveyed and to approximate the position of physical roadway. What is also clear is that the indication of approximation of where the right of way should be was based upon their observations of where the actual physical roadway exists. It was not intended to show the right of way as being in a position different from the physical roadway that has existed since about 1990. The "Actual Road" shown on the SB3 plan does not vary markedly from the "Projected Road" as shown on the SB3 plan. It was never the intention of the surveyors that the right of way could only be where Mr. Badman says it should be as shown on the SB3 plan. Another plan presented in evidence does not show one side of the right of way passing through the boundary point that he relied upon which supports the evidence of both surveyors that the right of way as shown by dashed lines was drawn as an approximation.
   
9. The finding of this Court is that the physical roadway was always intended to provide the right of way recorded in the easement in favour of the O60 and O61 titles. Showing that right of way by the use of dashed or dotted lines was intended to indicate that a proper survey of the right of way had not happened. The use of the dashed lines was an approximate guess by the surveyor of where the physical roadway was located.
   

10. This Court finds for the Claimants, and declares as follows:-

1. An easement creating right of way over title O59 exists in favour of titles O60 and O61.
   
2. At the time the easement was created, it was intended that the legal right of way would be where the physical roadway already existed.
   

100. The Defendants have no lawful right to obstruct the Claimants using the right of way created by the easement registered upon the title to their land by using the roadway as it physically already exists upon the Defendant’s land in title O59.
     

11. Costs are awarded against the Defendants in favour of the Claimants on a standard basis, as agreed by the parties, or failing such agreement, to be fixed by the Court.

Dated at Port Vila, this 22nd day of May, 2009

BY THE COURT

N. R. DAWSON
Judge