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EA Coxon & Company Ltd v Public Trustee [2010] WSSC 5 (26 February 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

E. A. COXON & COMPANY LTD
a duly incorporated company having its registered office at Apia.
Plaintiff

AND:

PUBLIC TRUSTEE
a corporation sole established pursuant to the Public Trust Office Act 1975
as Administrator of the Estate of William Johnston (Deceased).
First Defendant

AND:

EAN JOHNSTON and OWEN JOHNSTON
as the representatives of the heirs of the William Johnston Estate.
Second Defendants

Counsel: R Drake for plaintiff
A Roma for first and second defendants

Judgment: 26 February 2010

JUDGMENT OF SAPOLU CJ

The parties

1. The plaintiff is a duly registered family owned company having its registered office in Apia. The first defendant is the Public Trustee who has been appointed as the administrator of the estate of one William Johnston (hereinafter referred to as "the deceased". The second defendants are the representatives of the beneficiaries of the estate of William Johnston the deceased.

Background

2. The deceased, according to the records of the Public Trust Office, died intestate on 13 January 1901. The disputed land is part of the deceased’s estate and is described in the evidence as parcel 56 containing an area of three roods and thirty four point one perches. It is triangular shaped and is situated on the slopes of Mt Vaea facing Apia and the National Hospital. It has a panoramic view of much of the Apia area.
   
3. The disputed land is also landlocked being completely surrounded by a block of land that belonged to different landowners. This block of land consisted of about thirty five acres. Apparently the owners of the said block of land made a loan with the Bank of New Zealand in Apia (hereinafter referred to as "the bank"). They used their block of land as mortgage security for their loan. When they defaulted on their loan, the bank wanted to sell their block of land.
   
4. The plaintiff, in support of its claim, called as a witness Eugenie Ainslie von Reiche (hereinafter referred to as "Mrs von Reiche") who is the chairperson of the plaintiff’s board of directors. Mrs von Reiche testified that in 1955 the manager of the bank came to the premises of their company and informed her and her late husband, who was also a shareholder in the plaintiff company, that the bank was selling the said block of land in order to recover its money. On the same day, the bank manager drove Mr and Mrs von Reiche to see the said block of land. When the road ended, their car stopped and they took a foot track to the land. Upon reaching the top of the said block of land, the bank manager waved his hand indicating that the land in bush with lots of mango trees was the block of land the bank was selling. At the same time, according to Mrs von Reiche, the bank manager said he would show them where to build and pointed to an area where there was a palm tree. This area was high up the slopes of Mt Vaea and had a good view.
   
5. Mr and Mrs von Reiche then agreed to buy the land. By deed of conveyance dated the 14the day of May 1955, the von Reiches under the name of the plaintiff, their family owned company, bought the said land from its previous owners. In the same year, they built a Samoan house on the land for the use of their workers who started to clear some of the land. This Samoan house was built just below the spot where their homestead was later built.
   
6. In 1968, the plaintiff company built a homestead which was occupied by Mr and Mrs von Reiche and some of their children. The said homestead is a two storey European house built with concrete blocks and has five bedrooms on the top level and a self-contained flat downstairs. It can be seen from many parts of Apia. The homestead has remained the same in floor area but has been repaired over the years. According to the evidence of Mrs von Reiche, the said homestead is built on the spot that was pointed out to her and her husband by the bank manager in 1955 to build a house when they first saw the land.
   
7. In 1977, Mr and Mrs von Reiche went to New Zealand for a few years and their son, who is also a director of the plaintiff company, occupied the homestead with his wife and children. Up to now, their son and his family continue to occupy the homestead.
   
8. Then in 1988, the plaintiff company subdivided and sold part of its land behind the National Hospital. In 1999, the plaintiff company subdivided the remaining part of its land. During that subdivision, the surveyor who was carrying out the subdivision informed the von Reiches that there was a caveat lodged against the land. That caveat was lodged by a relative of the second defendants. However, it was later discovered that the caveator was the wrong person to file a caveat and the caveat was withdrawn in 2006.
   
9. The witness Ainslie Eugenie Ferenzy (hereinafter referred to as "Mrs Ferenzy") who is a daughter of Mr and Mrs von Reiche and a shareholder and company director of the plaintiff, confirmed in her evidence the evidence of her mother as to when the homestead was built. She also testified that they have done gardening and planted fruit trees around their homestead.
   
10. Mrs Ferenzy further testified that when she and her sister learnt from the surveyor about the caveat, they made enquiries at the land registry office. Their enquiries revealed that part of their family homestead that was built in 1968 had been built on part of the disputed land which is parcel 56 registered under the name of William Johnston who had died in 1901. It was then that they became aware for the first time that part of their family homestead encroaches onto the disputed land. Evidence given on behalf of the second defendants show that a substantial part of the von Reiche’s homestead does encroache onto the disputed land.
    
11. Mrs Ferenzy also said in her evidence that her family had offered land to the Johnstons in exchange for the disputed land but it was not successful.
    
12. The witness Paniani Vaa (hereinafter referred to as "Mr Vaa"), who is the Assistant Public Trustee, gave evidence for the first defendant. He said that the first defendant was requested in 1995 to administer the estate of the deceased William Johnston. In 1997, the first defendant was appointed as administrator of the said estate.
    
13. In 2006, Mr Vaa in the company of the second defendant Owen Johnston visited the disputed land. Mr Vaa testified that the disputed land is about three quarters of an acre or just less than an acre in area. It is also landlocked as it is surrounded by land which belongs to the plaintiff. He also said part of the land is steep.
    
14. The second defendant Owen Johnston (hereinafter referred to as "Mr Johnston") testified that in 2000 he went up Mt Vaea with one of his cousins and met with Michael von Reiche the son of Mr and Mrs von Reiche who is occupying the von Reiche’s homestead. He told Michael von Reiche that they were looking at redefining the boundaries of the disputed land. Michael von Reiche then took them to the balcony at the rear of the homestead and showed them the land behind the homestead saying all that was ours.
    
15. Mr Johnson also testified that in 2006 he went up with surveyors to redefine the boundaries of the disputed land. It was then that he found out that the von Reiche’s homestead had encroached onto the disputed land. He also found out that prior to 2006 the von Reiches had been negotiating with other members of his family about an exchange of the disputed land with some parts of the plaintiff’s land. However, the proposed exchange fell through.
    
16. Mr Johnston further testified that he has visited the disputed land many times. During those visits he observed that apart from the encroachment of the von Reiche’s homestead, the other part of the disputed land is covered by vegetation and is clearly undeveloped in any way.
    

The plaintiff’s claim

17. The plaintiff, in its seconded amended statement of claim, claims to have acquired possessory title to the whole of the disputed land by adverse possession and seeks a declaration accordingly. It also seeks an order to vest legal ownership of the disputed land in itself. In the alternative, the plaintiff claims that the encroachment of the homestead occupied by the von Reiches onto the disputed land was not intentional and did not involve gross negligence on the part of the encroacher and therefore seeks an order pursuant to s.129 of the Property Law Act 1952 (NZ) to vest in the plaintiff the legal title to the disputed land.
    

The defendant's defences

18. In relation to the plaintiff’s claim to possessory title of the disputed land by adverse possession, the defence raised on behalf of the first and second defendants in the written submissions of their counsel is that either the plaintiff’s claim to possessory title over the whole of the disputed land be dismissed or the plaintiff may claim possessory only to that part of the disputed land which has been encroached upon by the said homestead. The reason why the defendants seem to be saying that the plaintiff cannot claim possessory title by adverse possession to the whole or any part of the disputed land is because they claim that there is no sufficient evidence to show an intention to possess the disputed land to the exclusion of everyone else including the defendants. This is due to the fact that the von Reiches tried to settle this matter with the defendants by an exchange of lands.
    
19. However, it appears from the submissions by counsel for the defendants that their real argument is that if the plaintiff has acquired any possessory title to the disputed land such possessory title should be limited only to that part of the disputed land which has been encroached upon by the homestead of the von Reiches. Essentially, the reasons advanced by the defendants are twofold. Firstly, the von Reiches have since 1968 been in factual possession of only that part of the disputed land upon which part of their homestead was built. There is no clear and affirmative evidence that the von Reiches or the other members of the plaintiff company have been in factual possession of the remainder of the disputed land. Secondly, whilst that part of the homestead built on the disputed land may constitute evidence of an intention to possess that part of the land, there is no clear and affirmative evidence of an intention to possess the remainder of the disputed land.
    
20. In relation to the plaintiff’s claim for an order pursuant to s.129 of the Property Law Act 1952 (NZ) to vest in it the legal title to the disputed land, the first and second defendants in their respective statements of defence say that the von Reiches had mistakenly built part of their homestead over the boundary of the disputed land and thereby unwittingly encroached onto the disputed land. However, the defendants claim that the encroachment arose from gross negligence on the part of the von Reiches. They, therefore, say that the plaintiff’s claim for an order pursuant to s.129 of the Property Law Act 1952 (NZ) cannot succeed.
    

The relevant law

(a) Adverse possession

21. The law on adverse possession has already been discussed by this Court in several cases which are referred to in Dora Letele and Others v Rasela Moli Filia and Others [2009] WSSC 82; Public Trustee v Ulugia Laufili Nose [2009] WSSC 70. I do not propose to repeat in this judgment the discussion on adverse possession in those two cases and the other Samoan authorities cited therein. I only intend to further clarify certain aspects of the law on adverse possession in so far as they are relevant to this case.
    
22. In J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, Lord Browne-Wilkinson, after referring with approval to the statement by Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470 as to the elements which constitute adverse possession, said at para 40:
    

"[There] are two elements necessary for legal possession:

"1. a sufficient degree of physical custody and control (‘factual possession’)

"2. an intention to exercise such custody and control on one’s own behalf for one’s own benefit (‘intention to possess’)."

23. As to what is meant by ‘factual possession’, Slade J in Powell v McFarlane (1977) 38 P & CR 452 said at pp 470-471:
    

"Factual possession signified an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed...Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so"

24. In addition to the passage just cited from Powell v McFarlane (1977) 38 P & CR 452 at pp 470-471, for possession to amount to ‘factual possession’ for the purpose of adverse possession, it must be "open, not secret; peaceful, not by force; and adverse, not by consent of the true owner": Mulcahy v Curramore [1974] 2 NSWLR 464 per Bowen CJ at p.475; it must be "open and manifest, exclusive and continuous": McDonell v Gibbon (1904) 23 NZLR 600 per Cooper J at pp.662-663.
    
25. As to what is meant by ‘intention to possess’ for the purpose of adverse possession, Lord Browne-Wilkinson said in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 at para 42:
    

"In the Moran case (1988) 86 LQR 472, 479 the trial Judge (Hoffman J) had pointed out that what is required is ‘not an intention to own or even an intention to acquire ownership but an intention to possess’. The Court of Appeal in that case [1990] Ch 623, 643 adopted this proposition which in my judgment is manifestly correct".

26. At para 43, Lord Browne-Wilkinson went on to say:
    

"Slade J [in Powell v McFarlane (1977) 38 P & CR 452] reformulated (to my mind correctly) as requiring an ‘intention in one’s own name and one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow"

27. In this case, however, there is no specific evidence that the von Reiches or the plaintiff had an intention to exclude the world at large including the true owner of the disputed land. This is not uncommon in cases which involve claims of adverse possession. Up until 1999 when the von Reiches were informed by their surveyor that there was a caveat on the disputed land, they had all along mistakenly believed that the land belongs to the plaintiff, their family owned company. As it appears from the authorities, this kind of mistaken belief would not prevent the acquisition of title by adverse possession.
    
28. In Malter v Procopets [2000] VSCA 11, Brooking J A said at para 5:
    

"The Judge found – and this finding has not been attacked – that at all relevant times the appellants believed that the fence was on the title boundary. It follows from this that they believed themselves to be the owners of the disputed strip during the whole of the period in respect of which they claimed to have been in adverse possession of it. The Judge accepted that this mistaken belief would not prevent the acquisition of a title by adverse possession. This view is, with respect, plainly correct. It is supported by the decision of Pennycuick J in Bligh v Martin [1968] 1 WLR 804 and by decisions of the Court of Appeal, including Williams v Usherwood (1981) 45P & CR 235; Pulleyn v Hall Aggregates (Thomas Valley) Ltd (1992) 65 P & CR 276; and Hughes v Cork [1994] EGCS 25. In Lutz v Kawa (1981) 112 DLR (3d) 271, the Court of Appeal of Alberta observed, at (DLR) 282-3, that usually ‘to show such a belief would be added support for the fact of his own possession’"

29. What was said in Malter v Procopets [2000] VSCA 11 by Brooking JA at para 5 that a mistaken belief held by the occupier of land that he is the owner of the land would not prevent the acquisition of title by adverse possession has been adopted and applied in other Australian cases, for instance, Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314; Quarmby v Keating & Qasair Investments Pty Ltd [2007] TASSC 65.
    
30. In Kieford Ridge Pty Ltd v Ward [2005] VSC 215, Hansen J in the Supreme Court of Victoria, after quoting from the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452 at para 472, stated at paras 132 – 133:
    

"132. [It] is important to attend to what Slade J said in the passage quoted, in particular that the Courts will require clear and affirmative evidence that the trespasser not only had the requisite intention to possess but made such intention clear to the world. It is important to understand what is meant by intention in this respect. This is referred to conveniently in Bayport v Watson [2002] VSC 206 at para 40 as follows:

"When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804..."

"133. Further in Adverse Possession (2003) by Jourdan at para 13.39, it is stated that erecting a building is usually a clear act of possession regardless of the use made of it. In the succeeding paragraphs 13.40 – 13.47 the author cites cases that illustrate the point ..."

31. It is also to be pointed out that in a claim to title by adverse possession over the whole of the disputed land, the Court may make a declaration that the claimant has acquired title by adverse possession to only part of the disputed land. I see no sound reason in principle for the Court not being able to make such a declaration where the evidence shows that the elements necessary to establish title by adverse possession are present only in relation to part of the disputed land: Nelson Mackenzie Ltd v Sale Lamosi (1995) (unreported judgment of the Supreme Court delivered on 5 July 1995; Board of Trustees of the Congregational Christian Church of Samoa v Pouvi [2003] WSSC 4. Sometimes claims are made to possessory title over the whole of the owner’s land even though it is clear from the evidence that the trespasser has only been in occupation of part of the land. In such a situation, a declaration of title by adverse possession cannot be made in respect of the whole land but it may be made to only that part of the land occupied by the trespasser. In Kleiner v Randall [2005] NFSC 3, it was said at para 47:

"Adverse possession can be gained with respect to part of a documentary owner’s land: Quach v Marrickville Municipal Council (Nos 1 and 2) (1991) 22 NSWLR 55 at 67."

(b) Section 129 Property Law Act 1952 (NZ)

32. The second and alternative cause of action by the plaintiff is brought under s. 129 of the Property Law Act 1952 (NZ). Section 129 provides in so far as relevant:

"129 Power of Court to grant special relief in cases of encroachment.

"(1) Where any building on any land encroaches on any part of any adjoining land (that part being referred to in this section as the piece of land encroached upon), whether the building was erected by the owner of the first- mentioned land (in this section referred to as the encroaching owner) or by any of his predecessors in title, either the encroaching owner or the owner of the piece of land encroached upon may apply to the High Court, whether in any action or proceeding then pending or in progress and relating to the piece of land encroached upon or by an originating application, to make an order in accordance with this section in respect of that piece of land.

"(2) If it is proved to the satisfaction of the Court that the encroachment was not intentional and did not arise from gross negligence, or, where the building was not erected by the encroaching owner, if in the opinion of the Court it is just and equitable in the circumstances that relief should be granted to the encroaching owner or any other person, the Court, without ordering the encroaching owner or any other person to give up possession of the piece of land encroached upon or to pay damages, and without granting an injunction, may in its discretion make an order –

"(a) Vesting in the encroaching owner or any other person any estate or interest in the piece of land encroached upon; or

"(b) Creating in favour of the encroaching owner or any other person any easement over the piece of land encroached upon; or

"(c) Giving the encroaching owner or any other person the right to retain possession of the piece of land encroached upon.

"(3) Where the Court makes an order under this section, the Court may, in the order, declare any estate or interest so vested to be free from any mortgage or other encumbrance affecting the piece of land encroached upon, or vary, to such extent as it considers necessary in the circumstances, any mortgage, lease, or contract affecting or relating to that piece of land.

"(4) Any order, under this section or any provision of any such order, may be made upon and subject to such terms and conditions as the Court thinks fit, whether as to the payment by the encroaching owner or any other person of any sum or sums of money, or the execution by the encroaching owner or any other person of any mortgage, lease, easement, contract, or other instrument, or otherwise.

"(5) Every person having any estate or interest in the piece of land encroached upon or in the adjoining land of the encroaching owner, or claiming to be a party to or to be entitled to any benefit under any mortgage, lease, contract, or easement affecting or relating to any such land, shall be entitled to apply for an order in accordance with this section, or to be heard in relation to any application for or proposal to make any order under this section. For the purposes of this subsection the Court may, if in its opinion notice of the application or proposal should be given to any such person as aforesaid, direct that such notice as it thinks fit shall be given to that person by the encroaching owner or any other person.

" ...

"(8) Any order under this section may be registered as an instrument under the Land Transfer Act 1952 or the Deeds Registration Act 1908 or Part I of the Crown Minerals Act 1991 as the case may require."

33. This is the first Samoan case in which s.129 of the Property Law Act 1952 (NZ) has been raised. It is therefore essential to be clear in mind about what s.129 is saying so that it would be applied correctly. In so far as it is relevant to this case, section 129 (1) refers to a building which "encroaches on any part of any adjoining land" which part of the adjoining land is referred to "as the piece of land encroached upon". The owner of the building which encroaches on part of the adjoining land is referred to as the "encroaching owner". Section 129 (1) then provides that the "encroaching owner" or the "owner of the piece land encroached upon" may apply to the Court for an order in respect of that piece of land. Section 129 has been inadequately quoted by counsel for the plaintiff in her written submissions.

34. In s.129 (2), it is provided, in so far as relevant, that if the Court is satisfied that the encroachment was not intentional and did not arise from gross negligence, it may make an order (a) vesting in the encroaching owner any estate or interest in "the piece of land encroached upon, " or (b) creating in favour of the encroaching owner any easement over "the piece of land encroached upon," or (c) giving the encroaching owner the right to retain possession of "the piece of land encroached upon". Thus it is clear that under s.129 (2) an order can only be made in respect of "the piece of land encroached upon". Under s.129 (1), "the piece of land encroached upon" means that part of any adjoining land that has been encroached upon. In other words, the Court may only make an order in respect of that part of any adjoining land that has been encroached upon by a building. The power given to the Court under s. 129 (2) to make an order does not extend to any part of any adjoining land that has not been encroached upon. However, the plaintiff in its second and alternative cause of action claims that title to the whole of the disputed should be vested in it pursuant to s.129 even though it is clear from the evidence that the encroachment by the von Reiches homestead extends to only part of the disputed land which has an area of just less than an acre. The encroachment does not extend to the whole of the disputed land. This claim to title over the whole of the disputed land is therefore not supported by the wording of s.129 as the jurisdiction of the Court to make an order under that provision is limited only to that part of the disputed land which has been encroached upon.
    
35. It is also clear from s.129 (2) that the jurisdiction of the Court under s.129 can only be invoked where it is shown that the encroachment was not intentional and did not arise from gross negligence on the part of the encroaching owner. In other words, the encroaching owner who is applying to the Court for an order under s.129 (2) has to show that the encroachment was unintentional and without gross negligence on his part.
    

Discussion

(a) Adverse possession

36. As it appears from the evidence, the disputed land forms part of the estate of the deceased William Johnston who died intestate in 1901. It is just less than an acre in area. It is landlocked being surrounded by land which belongs to the plaintiff.
    
37. The disputed land and a large part of the plaintiff’s land are situated on the slopes of Mt Vaea overlooking the city of Apia. They command a panoramic view of much of Apia and can be seen from many parts of Apia. In 1968, the plaintiff built a homestead on its land for its principal owners Mr and Mrs von Reiche and their family. The homestead consists of a two storey building with five bedrooms on the top level and a self-contained flat downstairs. The von Reiches planted a garden and trees around their homestead. They believed that the whole land upon which they had built their homestead belongs to the plaintiff. It was not until 1999 when part of the plaintiffs’ land was subdivided for sale that they discovered that part of their homestead was built on the plaintiffs’ land and part of it was built on the disputed land.
    
38. I am satisfied that there is clear and affirmative evidence to show that the plaintiff which built the homestead has been in ‘factual possession’ for the purpose of adverse possession of that part of the disputed land which is encroached upon by the homestead including the garden and trees planted by the von Reiches. The erection of part of the homestead on part of the disputed land is clear and affirmative evidence of physical custody and the exercise of control by the plaintiff over that part of the disputed land. Occupation by the plaintiff of that part of the disputed land has also been "open, not secret; peaceful, not by force; and adverse, not by consent of the true owner": Mulcahy v Curramore [1974] 2 NSWLR 464, 475. Such occupation has also been "open and manifest, exclusive and continuous": McDonnell v Gibbon (1904) 23 NZLR 600, 662-663. The mistaken belief held by the von Reiches that the part of the disputed land over which the homestead was built belongs to the plaintiff would not prevent the acquisition of title by adverse possession: Malter v Procopets [2000] VSCA 11, para 5.
    
39. I do not, however, accept the submission by counsel for the plaintiff that the plaintiff, for the purpose of adverse possession, was in factual possession of the whole of the disputed land. The evidence is clear that the disputed land is situated on the slopes on the side of Mt Vaea. According to the evidence given for the first defendant, the disputed land is steep. This is only to be expected of land on the side of a mountain. The said homestead can also be seen from many parts of Apia and it is on the slopes on the side or Mt Vaea which is steep. It is not flat land.
    
40. I accept the evidence given for the first and second defendants that the only part of the disputed land which is occupied by the plaintiff is that part encroached upon by the homestead. This is not flat land which is relatively easy to occupy. It is steep land on the side of a mountain. There is no clear and affirmative evidence that the plaintiff has physical custody or has exercised control over the whole of the disputed land except that part of it encroached upon by the said homestead. Mr Johnston for the second defendants had also testified that he has visited the disputed land many times since 2000 and except for that part of the disputed land encroached upon by the homestead of the von Reiches the rest of the disputed land is covered by vegetation and is clearly undeveloped in any way. Mr Johnston had also testified that in one of his visits with one of his cousins to the disputed land, Michael von Reiche, the son of Mr and Mrs Reiche who is now occupying the said homestead, took them to the balcony at the rear of the homestead and said that the land behind the homestead belongs to them, that is, Mr Johnston and his family.
    
41. I am also satisfied that there is clear and affirmative evidence to show that the plaintiff which built the said homestead has the requisite ‘intention to possess’ that part of the disputed land encroached upon by the homestead including the garden and trees planted by the von Reiches. The erection of the homestead together with the planting of trees and a garden on part of the disputed land is clear and affirmative evidence of an intention to exercise control over that part of the disputed land to the exclusion of everyone else including the true owner. I do not, however, accept that there is clear and affirmative evidence that the plaintiff has had such an intention to possess in relation to the whole of the disputed land. The burden of proof is on the party who is claiming title by adverse possession and it is on the balance of probabilities.
    
42. Counsel for the defendants submitted that there is insufficient evidence to show an ‘intention to posses’ because the von Reiches had made an offer to exchange some of the plaintiffs’ land with the Johnston family in order to settle this matter. I do not consider that such an offer by the von Reiches negates the plaintiff’s intention to possess’ given the circumstances of this case. The offer by the von Reiches for an exchange of lands was clearly an attempt to settle this matter without Court litigation. But I do not see such an offer as an abandonment by the plaintiff of any claim to title by adverse possession that it may have to the disputed land.
    
43. I have therefore come to the conclusion that a declaration should be made that the plaintiff has acquired title by adverse possession to that portion of the disputed land which is encroached upon by the homestead of the von Reiches together with the garden and trees planted by them on that part of the disputed land.
    

(c) Section 129 Property Law Act 1952 (NZ)

44. In view of the conclusion that I have reached on the plaintiff’s claim in adverse possession, it is not necessary to deal with the plaintiff’s claim under s.129 of the Property Law Act 1952(NZ). However, as the plaintiff is claiming that an order should be made pursuant to s.129 of the Property Law Act 1952(NZ) to vest the whole of the disputed land in it, I have to repeat that such an order cannot be made in the circumstances of this case.
    
45. As already pointed out, under s.129 (2) the only orders the Court can make are orders (a) to vest in the encroaching owner an estate or interest in "the piece of land encroached upon, "(b) to create in favour of the encroaching an casement over "the piece of land encroached upon," or (c) to give the encroaching owner the night to retain possession of "the piece of land encroached upon." In terms of s.129 (1), the phrase "the piece of land encroached upon" means any part of any adjoining land which is encroached upon by a building. It does not include any part of any adjoining land which is not encroached upon by a building.
    
46. In this case, the said homestead does not encroach upon the whole of the disputed land which is about an acre in total area. The homestead encroaches only onto part of the disputed land. In terms of ss.129 (1) and (2), the part of the disputed land encroached upon by the homestead would be "the piece of land encroached upon". That will be the only part of the disputed land over which an order can be made under s.129 (2). But counsel for the plaintiff seeks an order in favour of the plaintiff over the whole of the disputed land which consists not only of the part encroached upon but also of the rest of the disputed land which has not been encroached upon. That will be stretching s.129 beyond its lawful boundaries.
    
47. Furthermore, as s.129 relates to an encroachment by a "building", it would have been an interesting question that I do not have to decide given the conclusion I have reached on the plaintiffs’ claim in adverse possession, whether the garden and trees planted by the von Reiches on part of disputed land come within the meaning of "building".
    

Conclusions

48. From the foregoing, I have come to the following conclusions:

(a) I make the declaration that the plaintiff has acquired title by adverse possession to that portion of the disputed land which is encroached upon by the homestead of the von Reiches together with the garden and trees planted by them on that portion of the disputed land.

(b) The first defendant is ordered to transfer the title to the said portion of the disputed land to the plaintiff.

(c) The costs of surveying the said portion of the disputed land to be transferred to the plaintiff are to be borne by the plaintiff.

(d) I make no other order as to costs.

CHIEF JUSTICE

Solicitors
Drake & Co for plaintiff
Fepuleai & Roma Law Office for first and second defendants