Even law-abiding citizens may find themselves unwittingly encroaching on a neighbour's property.

For example, you might be using a private road or footpath to reach your own house, extracting water from a neighbour's well, running services such as water or electricity to your home, even shooting game - unlikely as that may be in Bermuda! Any of those things may legally be done if your neighbour has granted you rights under an easement.

In a perfect world such easements would be properly recorded both in the deeds to the property being encroached on - known as the servient land - and the deeds to the land which is being benefited - the dominant land. Alas often no formal deed of easement has been entered into between adjoining owners, or the easement is recorded in their deeds but only in a slapdash way.

This has spawned a plethora of Court rulings over the years aimed at clarifying the do's and don'ts relating to the exercise of such rights.

Where the easement is documented invariably the Courts are not asked to get involved until one party changes the use in some way which the other party objects to.

For example in respect of a road this may involve a change from a pedestrian to a vehicular use, or from agricultural to commercial, from occasional to regular, or indeed even a change in the size and shape of vehicles using the road. The general consensus is that an easement cannot be used to an extent that exceeds the use originally contemplated when it was first granted.

So, for example, once a pedestrian footpath then always a pedestrian footpath, even if wide enough to accommodate vehicles, unless the parties agree otherwise. A well that is being used to supply water for one neighbouring property cannot be used to supply water to a number of properties if the adjoining owner then decides to develop his land.

If an access has been used only for agricultural vehicles once in a while a decision by the neighbouring farmer to quarry stone does not entitle him to have trucks using the access on a daily basis.

Not only does this amount to an unacceptable increase in use but also a change in use. Unless a right of way also includes a right to park then this will not be allowed. Indeed neither party is entitled to obstruct a road or footpath in any way. That would entitle the other party to an action in nuisance. It is only relatively recently that the Courts have been asked to rule on this question. Before the advent of motorised transport the need to park a horse was never an issue! The Courts have dealt with the question of the maintenance of a private road, a well or a service pipe, or indeed any other means for exercising an easement, in a sensible way.

The maxim is that a person cannot take the benefit of an easement without incurring a maintenance obligation. If the right is used by more than one property then the obligation must be shared between the users.

In the case of a water pipeline, the user is additionally obliged to ensure that it is maintained in good repair because if it springs a leak this would constitute a trespass on the servient land.

Indeed in some cases, for example in the case of a gas pipe, it might even constitute a hazard.

It is possible for an easement to be extinguished if it falls into disuse. For that reason, it is worthwhile exercising a right every now and again to avoid the inference that it has been abandoned. If someone obstructs an easement in some way then the user is entitled to deviate over some other part of the servient land to avoid the obstruction.

Often an easement will have been exercised for many years without being properly formalised by a regulating deed between the parties. What then is the situation? Is it still valid?

From the point of view of the person exercising the right, he would need to show continued use of the easement for at least 20 years (60 years if it is being exercised over Government land) for it to have become established.

If the right is ever challenged affidavit evidence might need to be taken from the user or indeed from anyone who can attest to the validity of the claim.

Once established the parties have the same rights and obligations vis-?-vis each other as if the easement had been documented.

As with boundary disputes, disagreements over the use of easements can be the cause of much resentment between neighbouring owners. Often the property deeds will hold the key to resolving the dispute amicably otherwise prompt action may well defuse the situation. Of course, to avoid such disputes arising in the first place, the best course of action is to ensure that such agreements between neighbours are properly documented. It is always worthwhile obtaining proper legal advice.

Attorney is a member of the Property Department at Appleby Spurling & Kempe. You can write to him with your questions or comments at mmitchellask.bm. Copies of Mr. Mitchell's columns can be obtained on the Appleby Spurling & Kempe web site at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.