The definition of an easement is one that runs with and benefits the land, when recognised under common law; and so, in this instance, the proclamation of easement by prescription, belied what may be equally construed as adverse possession, while defying the traditional purpose of rights of way over adjoining land.

When an estate comprising fields and a private orchard was sold to a new owner, a neighbouring property owner found themselves subject to complaint and mandatory injunction, when their use of a strip of the newly acquired land amounted to little more than exclusive possession under the pretence of an easement

The defendant in this matter occupied and operated, a wheelwright business that had enjoyed the benefit of storing carriages, and now, commercial and agricultural vehicles awaiting repair on the strip in question.

While the manner in which these items were left allowed for entrance and exit to the owner’s house, there had on occasion, been disruption to the use of the strip beyond that which was held as reasonable.

Having then taken the defendant to court in order for the vehicles to be removed, the argument was put before the judge that prior to the recent purchase, an agreement had been made between the former owners and the defendant, thus allowing him and his father to store carriages and spare parts until such time that they could be serviced and returned to their customers.

This arrangement dated back half a century, and so when the home had been leased to tenants, no complaints had been made regards the defendants use of the land.

This amounted to a claim that the existence of an easement was valid under the Prescription Act 1832.

While easements can be enforced by prescription, the court was indifferent to the manner in which the defendants had used the land, inasmuch as far from using the strip as a means of access, they had simply left a number of objects in situ, with the luxury of knowing they may, or may not, be used and removed.

Furthermore, the defendant’s land was adjacent to the strip and so did not touch the property in question, therefore it fell outside the scope of easement rights, and thus failed to determine the arrangement as one comprising a right of way.

With the defendant relying upon the far-reaching Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd to distinguish the claim, it was agreed that while no immediate objections had been raised by the previous owners, occupying tenants or new owners, it was not possible to consider the manner in which the land was used required possession; therefore, no claim for the former could be upheld, while the court reminded the parties that:

“[A]n easement can be lawfully acquired only if it is capable of judicial definition, restriction and control.”

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