Ancillary Right of Way: When the Right to Draw Water Implies the Right to Pass

Imagine: you have just bought a house with a garden in Mont-de-Marsan. At the back of the plot, a century-old well. The neighbour, who has inherited a right to draw water (right to take water from it) comes every week with his bucket. So far, nothing unusual. But one day, he arrives with a van to fill containers. You forbid him access by car. He claims that his right to draw water includes the right of way for his vehicle. Who is right? This question is regularly asked by landowners in the Landes, particularly around Mimizan where wells are numerous.

The answer lies in a decision of the French Supreme Court of 7 May 1986 (No. 84-13.707). The High Court ruled that, as soon as a right of way is the necessary ancillary of a right to draw water, its existence does not have to be established by a separate deed. In other words, if you have the right to draw water, you also have the right to access the well in a reasonable manner.

But what does this actually change for you, whether you are an owner or tenant in the Landes? This article breaks down this decision and gives you the keys to avoid or resolve a dispute.

The Facts: A Story Like Many Others

In this case, several owners disputed the use of a well located on land in Mont-de-Marsan (servient tenement). Mr Y benefited from a right to draw water (right to take water) set out in his deed of ownership. To access the well, he had to cross the land of Mr X, owner of the servient tenement. Mr Z, for his part, had a classic right of way.

The conflict erupted when Mr Y wanted to pass with a vehicle to transport the water. Mr X objected, arguing that the right to draw water did not mention a right of way by car. Mr Y brought the matter to court. At first instance, the judge ruled in favour of Mr Y: the right of way is necessary for the exercise of the right to draw water. Mr X appealed, but the Court of Appeal upheld the decision. He then appealed to the Supreme Court.

The Supreme Court dismissed the appeal. It held that the right of way is the necessary ancillary of the right to draw water. It does not matter that it is not written in the deed: without access, the right to draw water would be illusory. This reasoning applies to all types of easements: if the ancillary right is indispensable to the exercise of the principal right, it is implicitly included.

The Court's Reasoning — Explained

The Supreme Court relied on Article 686 of the Civil Code (which governs easements: an owner may create easements over his land for the benefit of another land). But above all, it applied the general principle that "the accessory follows the principal" (principle of necessary ancillary). In other words, if you have a right, you have the means to exercise it.

Caution, however: this is not a blank cheque. The right of way must be strictly necessary and proportionate. In this case, it was a pedestrian right of way, but the court held that the right of way for a vehicle was not excessive in the circumstances. What few people know is that the decision does not create an automatic right to any type of right of way. The judge examines on a case-by-case basis whether the claimed use is indispensable and reasonable.

In short, the 1986 decision is a confirmation of prior case law: it merely restates a common-sense principle. But it has the advantage of securing the position of beneficiaries of rights to draw water, who were often contested.

What This Changes for You — Concretely

If you are the owner of a dominant tenement (the one who benefits from the right to draw water): you now have a strong argument to demand access, even if it is not in writing. For example, in Mimizan, if you inherit a right to draw water from a well on a neighbour's land, you can claim a right of way to get there. But be careful: the right of way must be exercised without excess. If you want to go there by tractor when a pedestrian path is sufficient, the judge may restrict you.

If you are the owner of the servient tenement (the one who bears the easement): you must tolerate reasonable access. You cannot block access to the well on the pretext that the deed does not mention a right of way. However, you can challenge abusive use (use of large vehicles, unreasonable hours).

undefined, I have come across cases where owners in Mont-de-Marsan tried to prohibit any passage by invoking the absence of a deed. This decision closes that door. If you are in this situation, you should instead negotiate compensation or an adjustment of the route (the path used).

For buyers, always check the easements in the deed of sale. But be aware that a right to draw water implies a right of way, even if not written. This can be an asset (added value of the property) or a constraint.

Four Tips to Avoid This Type of Dispute

• Check the deeds of ownership: Before buying, ask the notary to list all active and passive easements. In Mont-de-Marsan, wells are often shared; a clear statement of easements avoids surprises.
• Negotiate a written agreement: If you benefit from a right to draw water without mention of a right of way, have a notarised deed drawn up specifying the terms (hours, vehicle, maintenance). This will avoid divergent interpretations.
• Use mediation before litigation: In case of conflict, suggest mediation. The costs (around €200 per person) are much lower than court proceedings. Many cases are resolved this way in Mimizan.
• Document historical use: If the right of way has existed for a long time, gather evidence (photos, witness statements). Acquisitive prescription (30 years) can create a right of way even without a deed.

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Further Reading: Related Case Law and Developments

This decision is part of a consistent line of authority. For example, a decision of the French Supreme Court of 3 July 2013 (No. 12-20.404) extended the principle to pipeline easements: the right to run a water pipeline includes the right of access for maintenance. However, the court limited this principle in a decision of 15 January 2020 (No. 18-24.671): the ancillary right must not aggravate the easement. Thus, if the right of way for heavy vehicles damages the servient tenement, it may be prohibited.

The trend of the courts is therefore to protect the balance between the rights of the dominant tenement and the preservation of the servient tenement. In the future, one can expect judges to increasingly require precision in deeds to avoid ambiguities.

Summary and Next Steps

FAQ:

1. Can I drive a car to fetch water if my right to draw water does not mention it? Yes, if the right of way is necessary and reasonable. The 1986 decision confirms this.
2. What should I do if my neighbour blocks access to the well? Send a registered letter with acknowledgement of receipt reminding them of the right. If no response, apply to the judicial court (interim proceedings for manifestly unlawful disturbance).
3. What are the time limits for action? You have 5 years from the contested act (general limitation period). But in easement matters, it is better to act quickly.
4. How much does court proceedings cost? Expect €1,500 to €3,000 for a first instance, more if appealed. Mediation is cheaper (€200-€500).
5. Can I sell my land with an unwritten right to draw water? Yes, but you must inform the buyer. Silence could engage your liability for latent defects.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →