"The dominant owner is entitled as against the servient owner, to do all acts necessary to secure full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused to the servient heritage."
20 In my view, this section correctly sets out the law in New South Wales. Although there is no authority directly in point, cases such as Abson v Fenton (1823) 1 B & C 195, 201; 107 ER 73, 75 and Dand v Kingscote (1840) 6 M & W 174; 151 ER 370 tend to support it.
21 There is an exhaustive commentary on the Indian Act by Katiyar, Easements and Licences (9th edition, 1979, Law Book Co, Allahabad). The only relevant case under the Act cited by Katiyar is Hayagreeva v Sami 15 Madras 286. I need to rely on the note in Katiyar at page 538 as the report of the case is not available in Sydney. In that case it was held that the dominant owner of the right to drain water was not liable where he had only entered the servient land to repair once a year after giving one month's notice of intention and had done the necessary work between 9am and 5pm.
22 In summary, the dominant owner may do work on the servient tenement which is reasonably necessary for it to enjoy the right of way in such a way that it causes no reasonable interference with the servient tenement or undue inconvenience to the holder of the servient tenement. The right to decide what works will be done, what is the thickness of the driveway and the like, are part of the rights that are granted to the dominant owner and are a matter for it alone.
23 Accordingly, it seems to me that it follows that the plaintiffs cannot complain that they have not been given full and precise details of the work that is to be done.
24 At present there is insufficient material to show that, on the balance of probabilities, when the work is completed there will be any problem with the retaining walls or the levels. I am less certain about the levels, but it seems to me that I should not grant any injunction at this stage but stand the suit over for six weeks with liberty to restore at that party's risk as to costs, should something dramatic happen in the meantime.
25 I should note that the thrust of the argument was that the plaintiffs were entitled to have all the information which they needed to make a considered decision as to whether they would consent to the works. I have held that they are not entitled to this. During final addresses, Mr Confos sought to say that the use of the driveway when relaid would constitute an excessive user of the right of way. I put this aside as this was not the case that was being made up to that stage, nor was it reflected in the terms of the order sought in the summons. The plaintiffs may also have other complaints. Of course, any dealing with the land in excess of the defendant's right will be an actionable trespass; see eg Dand v Kingscote (1840) 6 M & W 174; 151 ER 370. I would have thought that before any other matter can be raised the suit would have to be reconstituted by amendment of the summons.
26 If, when the works are finished, there seems to be a problem with either the levels or the retaining walls or otherwise, then the suit may be reconstituted and sent to the District Court for damages to be assessed, or for mandatory injunctions to be made in this Court.
27 Accordingly I decline to give any interim relief. I order the plaintiffs to pay the costs up to today's date.
28 I stand the suit over for mention before the Registrar on 17 April 2000 at 9:30 am with liberty to any party at their own risk as to costs to restore the matter to the list on three days' notice. Further costs are reserved. The exhibits may be returned.