Right to use well water

We have been fetching water from our neighbour’s well for more than thirty years. Unfortunately, the neighbour passed away a month ago. We are now in trouble as the older son of the deceased owner of the well has started to erect a fence around the well and doesn’t want us to draw water from there. He claims we are contaminating the well and wants to keep enough for his family only. Do we have a cause of action against this son?
YR, Tabora     

Indeed, you have a cause of action against that son of the deceased.

Section 31 of the Law of Limitation Act (the Act), states clearly that where any easement has been enjoyed peaceably and openly as of right, and without interruption, for 20 years, the right to such easement shall be absolute and indefeasible. The Act defines easement to include the access and use of light or air to and from any building enjoyed with the building as an easement; and any way or water course, or the use of any water, enjoyed as an easement.

Reading the explanation above, it is clear that the neighbors have been using the well of water, openly, peacefully and without interruption, for more than 20 years. Under the Act, such right of drawing water from that particular well has become absolute and indefeasible. It is too late for the son to stop you from drawing water from the well. You thus have a cause of action and may consider engaging a lawyer to guide you further. As always if this can be resolved amicably do so otherwise you may require Court intervention.