Easing into Easements, Not Easy

You own a home. “A man’s home is his castle.” It means that you can let in, or keep out, anyone you want. None can use that which belongs to another. Period.

 

Why then does the State, to whom the roads belong, allow you to use them for free, but charges the motorists? It is due to the ‘law of easements’, a law based on the use of property owned by others. It allows the use, enjoyment and extraction of profit from that property. The fisherman casts his net and sells the catch; the forest-dweller has rights over forest produce, just as herders have over certain grazing lands. But does the law allow indiscriminate car parking, a big bone of contention with city-wallahs!?

 

 

A man owns a plot of land. He is surrounded by others and has no access to the main road. You are one of the neighbours. Would you, even as a judge, allow him ingress and egress through your plot? Good neighbourly relations?

 

Some Scottish cases caught our attention. In 1899, in Cronin v/s Sutherland, a court had to decide whether horse-drawn carts could carry asphalt, on a road where the right existed only for manure and fuel transport. It opted for strict interpretation. Coming to modern times, another problem cropped up in Moncrieff v/s Jamieson. This time, it was cars. And the problem was with the right to park. 

 

 

Would the right to traverse a road also allow parking thereon? Your answer may depend on whether you own the land or the car. But what would be the judicial remedy?

 

Feudal societies had ideas of ownership that were different from ours. Where once drovers drove animals over vast tracts of land, the animals naturally rested. They ate the grass. Cattle bit it. Sheep pulled out the roots too. The implications were built in.

 

Times change. While Cronin stuck to the letter of the contract, “so as not to make the burden upon the servient tenement more heavy…”, Moncrieff wavered. However, in ‘Johnson, Thomas and Thomas v/s Thomas Smith’, circa 2016, again Scottish, Sherriff Reid was more distinct. The case involved parking of caravans since 1989. Twenty years, without notice, helps establish a right. The judge (Sherriff) called for records but, more importantly, clarified what parking actually meant. He queried if it was temporary, and for varying and extended periods. What of broken down vehicles? Did the parking amount to storage? Were the balls red, white or pink? Horses for courses.

 

These cases show that the problem is perennial and not susceptible to rigid solution. Each matter will be decided on a case-to-case basis. The contractual document needs be thoroughly drawn up. While it may be impossible to touch all bases, and we have amongst us brilliant minds seeking loopholes, the positive and negative actions need amplifying.

 

In India, access is an easement must. Locked-in properties get the easiest route, a minimum of five metres width, to allow heavy vehicles. If the road is used by many, parking must be banned and so specified. Pedestrians have easement rights per se. Motorists pay for use of public roads and, therefore, can legally be denied that right, just as the railways restrict use of over-bridges to ticket-holders.

 

To end an exhilarating exercise, the best remark comes from a British judge. “There is a common misunderstanding that an Englishman’s home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours. While it is often true that a person can do what he wants on his own land, it is not always so. The law expects neighbours to show some give and take towards each other.” 

 

And then what would the lawyers do? Make-in-India loopholes? 

Courtesy: Moneylife