The power of subsidiary interests in land to shape our world: the Australian law of easements

Abstract

Introduction In the Royal Courts of Justice in the Strand, London, hang two large portraits on either side of the cavernous entrance hall: one is of Sir John Archer (1598-1682) and the other that of Sir William Ellys (1609-1680). Who were these judges? On the wall beneath their portraits one finds a very small, framed, type-written card that simply reads ‘The Fire Judges’ and goes on to explain that Sir John and Sir William were two of 22 judges who had served on the special Fire Court established following the Great Fire of London in 1666. These judges settled property disputes over who had owned what land when the entire structure of the city had vanished in that conflagration which started at the bakery of Thomas Farriner (or Farynor) on Pudding Lane on Sunday, 2 September 1666, and which raged through London until Wednesday, 5 September 1666. Only a few markers remained of the city that had previously stood there. And from these scant reminders, the Fire Judges had reconstructed the city, as far as ownership was concerned. Not many of us would have stopped to consider what a fire of that size might mean for determining the ownership of land and the rebuilding of a destroyed city. No doubt similar issues arose after the Great Chicago Fire of 1871, the San Francisco earthquake of 1906, Cyclone Tracy in Darwin in 1974, and countless other human and natural disasters that have levelled or reduced entire cities to smouldering rubble and ruin. And so, in the immediate aftermath of the Great Fire of London, the English Parliament hurriedly considered a group of bills, collectively known as the Rebuilding Bills, which sought to reconstruct the city where it had once been. It rapidly became clear that one of the most vexing issues that would stand in the way of rebuilding would be the issue of land ownership - who owned what and under what form of tenure. This issue became the focus of the Rebuilding Bills; of that entire package of legislation: the… most revolutionary - and at the same time most important - was a special bill providing for the settling of lawsuit and disputes between landlords and tenants of the burned-out houses.