Right of way through field

A Reader is the owner of a field which has an entrance from a public road. Next to it is another field which also abuts onto a public road.

A farmer who used to cultivate the reader's field had allowed another farmer working in the adjacent field to pass through the reader's field to have access to this field. This permission was granted without the reader's (the landlord's) consent.

Some years ago, the owner of the adjacent field died leaving this field to be divided equally among his children. This division was drawn up by a public deed registered in the Public Registry.

Lately, the reader found out that this deed specifies a right of way over his property for the owners to have access to their respective parts of the field.

Reader is furious at the situation, primarily because the adjacent field does have access to a public road and secondly there is no pre-existing title giving the new owners, their father or forefathers a right of way over the reader's property.

What is the reader's position at law and how may he remedy the situation, since now the owners are claiming that they have acquired a right of way over his property on the basis of prescription?

According to section 469 (1) and (2) of the Civil Code, a right of way can only be created by title and cannot be created by prescription.

Nevertheless, subsection (2) provides that the easement of right of way for the use of a tenement may be acquired by prescription of 30 years, if such tenement has no other outlet to the public road.

Now, since the field adjacent to reader's property does have access to a public road and since there exists no title to the claimed right of way by reader's neighbours, the owners of this adjacent field are not legally justified to claim that they have a right of way on reader's field on the basis of prescription.

Although the deed of partition between the owners of the adjacent field ought not to create a title as intended by law, now, once there is a public deed, even if misleading, stipulating that there is a right of way on reader's field, it might be in the reader's interest to remedy the situation and, if need be, take necessary action.

The owners of the adjacent field should be approached by the reader on the matter trying to reach an amicable solution. Otherwise, if this proves to no avail, the reader ought to serve the owners with a judicial act and, if this too proves to be of no use, then the only alternative left for him is to institute court proceedings.

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