Milne v James [1910] HCA 55

168 HIGH COURT (1910.

H.C. of A. which he desires to put it. This is a denial to the plaintiff of his anes dominion over his own property. In our opinion a claim for an injunction to restrain such an interference with property of the

MILNE Tauns, Value of £300 is a claim respecting property of that value within the meaning of sec. 35. The test suggested by the respondent, on the other hand, is that the amount of the plaintiff's claim is the price at which he could buy out the defendant. A plaintiff whose property is trespassed upon is not under any obligation to buy out the trespasser. The cases of Amos v. Fraser (1) and Macfarlane v. Leclair (2) are entirely in accord with this opinion. We do not think it necessary to express any opinion on the other questions sought to be raised by the appellant, but which were not argued. The appeal must therefore be allowed. Solicitors, for appellant, Stone & Burt. Solicitors, for respondent, James & Darbyshire. Bs Bei. [HIGH COURT OF AUSTRALIA.] MILNE : a 5 4 4 2 . APPELLANT; PLAINTIFF, AND JAMES ee . - + + + os, RESPONDENT, DEFENDANT, HOors ON APPEAL FROM THE SUPREME COURT OF 1910. WESTERN AUSTRALIA. PerTH, Husement of support—Encroachment—Eusement not created by deed—Agreement oe a 19, which should be specifically enforced by Court of Equity—Predecessor in title— » 21, 25, Constructive notice—Specific performance—Declaration of right—Mandatory Griffith 0.J., injunction. Barton and

O'Connor JJ. (1) 4 C.L.R., 78. (2) 15 Moo. P.C.C., 181.

13 C.L.R.J OF AUSTRALIA. 169

'Lhe appellant acquired an allotment of land in January 1904, and the H.C. oF A. respondent acquired the adjoining block to the west in March of the same 1910. year. There was a two-story building on the appellant's land, the western =~ wall of which was supposed to be on the western boundary. 'The respondent's MILse predecessors in title, intending to build on the block to the westward of they, Ying. appellant's land, entered into an agreement, under seal, with the appellant's predecessors in title, dated 18th September 1896, whereby, after reciting that