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29 September 2016 |
| No Parking(The Total Investment & Insurance Solutions) |
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. The Total Investment & Insurance
Solutions
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!?
You be the judge. The Total Investment
& Insurance Solutions
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? The Total Investment & Insurance
Solutions
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. The Total Investment
& Insurance Solutions
You be the judge. The Total Investment
& Insurance Solutions
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. The Total Investment
& Insurance Solutions
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. The Total Investment & Insurance
Solutions
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.
The Total Investment & Insurance Solutions
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? The Total Investment & Insurance
Solutions
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