The tolerance limit under section 2 of the Easement Act
The Supreme Court's judgment 12 November 2020, HR-2020-2186-A, (case no. 20-029183SIV-HRET), civil case, appeal against judgment.
Carl Otto Løvenskiold, Norges Skogeierforbund (third-party intervener), Norskog (third-party intervener) (Counsel Jarle Wallevik Holstrøm) v. Åge Dagfinn Skogheim (Counsel Peter Vagle)
Justice: Matningsdal, Noer, Ringnes, Bergh, Steinsvik
A large forest owner had acquired a prescriptive easement to drive timber trucks and other vehicles across a farmyard. The Court of Appeal had found that the use exceeded tolerance limit in section 2 of the Easement Act and laid down limitations on the use. The Supreme Court agreed with the Court of Appeal that many factors suggested that the tolerance limit had been exceeded. However, the Court of Appeal had not considered which consequences the limitations had for the forest owner, and thus failed to balance the parties' conflicting interests and needs. This constituted an error of law. As the Supreme Court lacked sufficient basis for considering the tolerance limit in light of a balancing of the parties' interests, the Court of Appeal's judgment was set aside as concerned the limitations on the use. As an obiter dictum, the Supreme Court stated that for positive easements, it must be possible to obtain a correction judgment, in the sense that the easement is limited to the extent possible to avoid that the use exceeds the tolerance limit.