Long-term acquiescence can lead to the lapse of asserted rights, particularly regarding easements.

[1] The plaintiffs and the defendant are registered proprietors of lands adjoining each other. The 1st plaintiff is the mother of the 3rd and 4th plaintiffs whilst the 2nd plaintiff is her brother. Both the plaintiffs' and defendant's respective houses on the said parcels of land face a busy thoroughfare in Kuching, ie Green Road but that of the defendant is in front whilst the house on the plaintiffs' land is behind. The land upon which the plaintiffs' house no 155A is built is described as Lot 255 Section 18 Kuching Town Land District and that of the defendant, no 155 is on Lot 254. The titles to both land were issued on the same date ie 24 October 1966. The defendant's husband acquired Lot 254 in 1991 and upon his death in 2012, the land was transferred to her. Lot 255 being right behind that of Lot 254, it was given an easement or right of way over Lot 254. That right of way was registered, before the issuance of the title on 23 March 1966, by a Memorandum of Endorsement of Condition of Survey Plan approved under the Land (Control of Subdivision) Ordinance No L.2396/66. That memorandum is endorsed on the land title for Lot 254 and it specifically provides as follows:

Easement

[2] That an access road of an uniform width of 16 feet be registered as an easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District.

[3] For years, said the plaintiffs, they have enjoyed the use of that access road, concreted no less until June 2014 when the defendant constructed a concrete base fence along their property which rendered the access road to be less than 16 feet, thereby depriving them of a right which they have enjoyed for decades. They have therefore filed this action to declare that the defendant has no right to build such a fence, to remove the same and for damages to be assessed.

[4] The defendant in her defence pleaded that the said access road or driveway as she called it has always been of the same width at the time when their property was fenced up with a chain-link fence until the present fence with its concrete base and iron rods was built. The residents of Lot 255 have been able to use the access road with no hindrance during and after the construction, did not complain when the construction of the concrete fence was in progress and which fence was constructed on their own land, she pleaded further. The defendant thus pleaded estoppel as a defence and alternatively waiver of their rights as the plaintiffs or the predecessors were aware of the construction of the access road by the developer when their two houses were constructed. In fact, pleaded the defendant the plaintiffs could have an alternative access through another feeder road at the back of their house known as Cookes Drive and have therefore counter-claimed for, inter alia, a declaration that she be entitled to apply to the relevant authority to cancel the said easement or alternatively a rectification to reflect the actual width of the access road.

Actual Width

[5] In the midst of the trial, on 7 September 2015 @ 10.30 am the parties, their counsels and I went for a site visit where measurements were taken of the gate to the plaintiffs' house and width of the access road. There are no two ways about it - the width of the access road is definitely less than 16 feet. In fact at the point alongside the access road where an electricity pole was erected it was less than 10 feet even. There is also a small concrete drain running alongside the access road which is obviously unused as the opening where effluents ought to be discharged is covered with concrete. An inkling of what this access