An easement acquired under the doctrine of lost modern grant prior to 12 April 2001 constitutes an 'easement arising by implication' within s 40(3)(e)(i) of the Land Titles Act 1980 (Tas) and is therefore an exception to indefeasibility of title. The abolition of the doctrine by s 138I(2) operates prospectively only and does not extinguish pre-existing easements. The Supreme Court retains jurisdiction to declare such pre-existing entitlements notwithstanding the statutory regime for vesting easements by the Recorder under Division 3 of Part IXB. The use of a truncated portion of a registered right of way to access the dominant tenement via a diversion over other land of the dominant owner is authorised by the terms of the easement where the language grants a right to go, pass and repass into, out of and from the dominant tenement.
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