Landale v Menzies [1909] HCA 48

OCF AUSTRALIA. 89

[HIGH COURT OF AUSTRALIA.)

LANDALE - : 4 ' z é . APPELLANT; PLAINTIFF,

-

| MENZIES AND ANOTHER . 5 : . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Landlord and Tenant—Tenancy at will, how created and determined—Agreement H.C. or A.

not to determine without reasonable notice—* Give and take" fence along com- 1909. 'mon boundary—Implied agreement for exclusive occupation—Reasonable notice =$—~—

of intention to determine—Breach of agreement by lessor, effect of —Remedy of SYDNEY, tenant—Injunction— Damages. He oe 27,

A tenancy at will may be subject to a stipulation that it shall not be deter- August 12. mined without reasonable notice, and in such a case a notice by the lessor of

Griffith ©.5.,

his intention to determine the will does not determine the tenancy until the ""Barton, expiration of the period of reasonable notice. be

'So held per Griffith C.5., Barton and O'Connor JJ. ; Isaacs J. dissenting.

Holders of two large pastoral properties separated by a watercourse along which a "give and take" fence had been erected in such a way as to secure a more convenient position for the fence both in respect of erection and main- tenance, and to give each side a fair share of the water, maintained and improved the fence by contribution for a number of years, until the owner of the land on one side of the boundary, after giving a few days' notice of his intention, but without the consent of the other owner, cut the fence at a point where it was on his side of the watercourse, and extended it so as to take in a strip of land and portion of a waterhole which had been wholly on the other side of the fence, and thereby interfered with the use of the water 'by the other owner, and caused damage to his stock. There was no record of the agreement made when the fence was originally erected, and, except for an