Perry v Clissold deals with whether a person in exclusive possession of land, though not the paper owner, is entitled to compensation when the Crown resumes the land for public purposes.
| Court: Privy Council (Appeal from the High Court of Australia) |
| Citation: (1906) 4 CLR 374; [1907] AC 73 |
| Original Case: Clissold v Perry, [1904] HCA 12; (1904) 1 CLR 363 |
| Privy Council Decision: 1906 |
| High Court Decision: 20 June 1904 |
| Legal Focus: Property Law – Possession vs. Ownership, Right to Compensation for Resumed Land |
Facts of the Case: Perry v Clissold
The Crown (government) wanted to acquire some land for a public school under the Lands for Public Purposes Acquisition Act 1880 (NSW), which later became part of the Public Works Act 1900.
Frederick Clissold was in exclusive possession of the land. He had fenced it, rented it out, paid taxes, and acted like the owner, though the actual owner was unknown.
The government resumed (took over) the land and initially refused compensation to Clissold’s executors after his death, claiming Clissold had only a “possessory title” (not true ownership).
The Supreme Court of NSW sided with the Minister, denying compensation.
The High Court of Australia reversed that, saying Clissold’s possession created a prima facie case for compensation.
Legal Issue
Whether a person in exclusive possession of land (even if not the true owner) is entitled to compensation when the government resumes it for public purposes.
Decision in Perry v Clissold
Privy Council upheld the High Court decision, dismissing the appeal.
1. A person in peaceful possession as owner has rights against everyone except the true owner.
2. If the true owner never claims the land, the possessor’s title eventually becomes absolute.
3. The Act intended compensation for anyone deprived of land, even if the true owner is unknown.
4. The land’s valuation should be done as of the date of government notification.
Lord Macnaghten said as under:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.”
Outcome:
The claimants (Clissold’s executors) were entitled to a valuation of the land and could claim compensation. The government could not deny compensation just because Clissold was not the true owner.
Right to Compensation
Even if someone doesn’t legally own land but has been living on it and acting as the owner, the government must pay compensation if it takes the land for public use. The fact that the real owner is unknown doesn’t stop this.
List of References:
- https://www.hcourt.gov.au/sites/default/files/eresources/1906/UKPCHCA/5.pdf
- https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKPC/1906/1906_81.html
- https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/UKPCHCA/1906/5.html
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MORE FROM PROPERTY LAW:
- J A Pye (Oxford) Ltd v Graham [2002] UKHL 30: Legal Note
- Whittlesea City Council v Abbatangelo [2009]: Adverse Possession
- Rodrigues v Ufton (1894): Trespass, Possession & Landlord Rights
Ruchi is a legal research writer with an academic background in CA, MBA (Finance), and M.Com. She specializes in digesting and summarizing complex judicial decisions into clear and structured case notes for students and legal professionals.