Rights Created by Easement Limited to Actual Use

When a person continues to use land they do not own over a long period of time, they may acquire an easement (a legal right to use the land). Recently, the Court of Appeal considered the extent of the rights created by easements.

The case arose because of a dispute over the right of way over a private road, which had been used by a farmer for more than 20 years. The County Court held that the use was effectively unlimited as far as the farmer’s agricultural purposes were concerned. Since this included driving stock along the road, the owners of adjacent properties opposed the ruling and the case went to appeal.

The critical point was that although the use of the road by the farmer for pedestrian and vehicular access had been shown to have been permitted for more than 20 years – thus establishing the general right of easement – the use for driving animals had not. Since this was more burdensome on the owners of the adjacent properties than pedestrian or vehicular access, the Court of Appeal ruled that the right of easement did not include the right to drive stock along the road.