There is a presumption (or rule of construction) that a conveyance of land bounded by a road will include half the road 'usque ad medium filum viae'. The ad medium filum rule applies to a transfer of land under the Real Property Act 1900, where the transferor is the owner of the site of the road. In Re Priddle (1916) 16 SR (NSW) 54, and Wood v Mittagong Shire Council (1977) 35 LGRA 323, the fact that a Certificate of Title does not indicate that the fee extends to the centre of the road does not preclude the operation of the rule, if the circumstances surrounding the origin and history of the road do not rebut the presumption that ad medium filum applies.
A landowner entitled to half or the whole of an adjoining road by virtue of the ad medium filum viae rule, may make an application to the Registrar General to be recorded as registered proprietor of the land. Under this common law rule, it is presumed that if a road is bounded by or passes through a property, the title to the property would extend to include the fee simple of so much of the traversing road as is enclosed within the property, or to include the fee simple up to the middle thread of the boundary road for the length of its frontage.
If one of the parcels lying on either side of the traversing road was conveyed and described in the conveyance as being bounded by that road, there is also a rule which provides, that in construing that description, it will be presumed that the title conveyed extends to the middle thread, even though the dimensions or area stated in the document do not include any part of the road.
Rebuttal
The presumption of ad medium filum viae can be rebutted where it can be shown that the vendor does not have title to the road, or that the vendor had title but conveyed it to another. In New South Wales the application of the presumption has been largely restricted by legislation.
The presumption is also rebutted if the road provided in the subdivision gave access to a residue area or the conveyance granted a right of way over the road. See Permanent Trustee Co. Ltd. v Pangas (1992) 75 LGRA 412.
The rule does not apply in respect to any Crown Grant fronting a Crown boundary road.
Since 1 January 1920, the rule is rebutted, except as to minerals, where the fee simple of the public road is vested in the council see sections 145 and 146 Roads Act 1993.
Since the enactment of section 45A Real Property Act 1900, a title for land abutting on a road is deemed to include the soil of the road ad medium filum unless:
- the soil is vested in a roads authority
- the rule of construction mentioned by that section has been rebutted or
- it is a 'classified road' (as defined under the Roads Act 1993) to which the section does not apply.
Evidence
Most folios of the Register are inconclusive as to which, if any, of the rebuttal contingencies have taken effect. Any person who applies for the express inclusion in a folio of the Register of the site of a road is required to prove that rebuttal has not taken effect. NSW LRS will not of its own motion, search the chain of title for evidence of the rebuttal of the rule of construction. Any person applying for title to the site of a road is required to furnish a Request form 11R and should supply:
- evidence of non-dedication of the road to the public, such evidence to be confirmed by council,
- a statutory declaration by the registered proprietor that they are not aware of any fact or circumstances attending the acquisition of title by themselves, or any of their predecessors, or occurring subsequently, which would rebut the presumed extension ad medium filum, and
- a certificate by their solicitor or by some other qualified person stating that they have examined all relevant documents of title from the date of creation of the road and have found nothing therein to indicate that the rule of construction has been rebutted.
NOTE: NSW LRS Legal Services will make an assessment of all claims.
Where the land comprising the road is Old System, Limited or Qualified Title, the claim must be based on a Primary Application over land defined in a new deposited plan of survey, defining the claimant's adjoining land and the claimed ad medium filum land as one lot, together with the relevant evidence in support of the claim.
Due to the difficulty in certifying title to such roads and, as the registered proprietor of the adjoining land has the benefit of the presumption, the Registrar General will only give effect to an application in exceptional circumstances.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: October 2024