7.2.2. Possession and particular use rights

Possession 279

The use rights of the Murray Islanders in Mabo v. Queensland (No. 2) (1992) 175 CLR 1, discussed in Chapter 4, may at first sight look more like possessory rights, especially when contrasted with the particular use rights of the aboriginal clans in Milirrpum v. Nabalco Pty Ltd (1971) 17 FLR 141 (also Chapter 4), but the result of the Australian High Court’s decision in Mabo (No. 2) and of the Australian Native Titles Act 1993 is that the holders’ rights will continue only for so long as they are exercised in the same way. In this sense, their authorised use is particular not general: they cannot use the land for any purpose other than that for which they have always used it, so that a Murray Islander whose family has always used a particular tract of land as a house and garden has a property right to use it for that particular purpose, but no right whatsoever to use it for any other purpose, and even that particular use right will expire if it is not exercised (compare common law rights of common). Public rights and customary rights in England and Wales also tend to be particular rather than general use rights: consider, for example, a public right of way, or a right to use a public park, or the public navigational rights in Fowley Marine (Emsworth) Ltd v. Gafford [1968] 1 All ER 979, CA, discussed in Notes and Questions 7.1 above.

7.2.2.2. Compatibility of particular and general use rights

Two aspects of particular use rights, considered in detail in Chapter 8, should be noted here. The first is this. In a common law system like ours, a particular use right is necessarily exercisable over land in which someone else has a general use right (there is always at least a residual title somewhere). What happens when the particular use authorised by the right is so extensive that it makes the other person’s general use right nugatory? This does not appear to be viewed as a problem in relation to communal or public particular use rights. In Fowley Marine (Emsworth) Ltd v. Gafford [1968] 1 All ER 979, CA, discussed in Notes and Questions 7.1 above, for example, the fact that there were public navigation rights over the Rythe was held not to be inconsistent with Fowley Marine being in possession of the Rythe, even though it meant that Fowley Marine could not actually make much use of the Rythe. Similarly, in New Windsor Corp. v. Mellor [1975] 1 Ch 380, discussed in Notes and Questions 5.1 above, Lord Denning said that, while a customary use must be reasonable to amount to a communal property right, it was not an objection that it prevented the servient owner from making any use of the land.

However, as we see in Chapter 8, incompatibility with possessory rights is seen as a problem in relation to private particular use rights. The only significant categories of private particular use rights recognised as proprietary in our system are easements (a right to do a specified thing on someone else’s land, or run a specified service over it) and profits (a right to take something from someone else’s land). Any particular use right which fails to fall within the confines of these two categories cannot be proprietary and will take effect in contract only (see, for example, the right to run pleasure boats over someone else’s canal in Hill v. Tupper