Key points:

  • The scope of a right of way acquired through long use will depend on the nature of the use over the relevant period
  • The burdened land should not be encumbered with a use which is more onerous than that which has in fact taken place

Where an easement has been expressly granted, as in Ashdale Land and Property Company Limited v Maioriello, the scope of the right granted will depend on the words used in the conveyance or deed of grant. However, where an easement has arisen by virtue of long use, there is no document which can be reviewed to ascertain the extent of the permitted use.

In Dewan v Lewis, some agricultural land had the benefit of a right of way over a private road, by virtue of use of the road for more than 20 years. A court at a previous hearing had declared that the right was exercisable "at all times for agricultural purposes with or without animals and with or without vehicles".

The owners of the houses adjoining the road appealed, claiming that the right should be limited so that it did not include a right to drive stock. The farmer with the benefit of the right argued that, having established use for agricultural purposes, there was no justification for excluding the driving of stock, which was a normal incident to the use of agricultural land.

The court found that, during the relevant 20 year period, the use of the road had included access on foot, with vehicles and on horseback. However, there was no material evidence of the road being used to drive livestock during that period (although livestock may have been driven during an earlier period).

The court noted that, in the case of a right acquired by prescription, the right acquired is measured by the type of use. The justification is that, by acquiescence over a long period, the burdened owner has lost the right to object. However, he should not be burdened with a use which is more onerous than that which has in fact taken place and which he has accepted.

A right to drive stock would cause greater inconvenience to the burdened owners than a right to drive vehicles, or ride horses. Since the use shown over the relevant 20 year period did not include use for driving cattle, the burdened owners were entitled to exclude it from the right of way.

Things to consider

This case does not lay down any new legal principle, but serves as a useful reminder that the scope of a right of way acquired by prescription will depend on the nature of the use over the relevant period. It is possible that the right may be used for purposes which are no more onerous, on the principle that the greater includes the lesser, but the converse is not true.