It is trite law that easements cannot exist “in gross”. There must be a dominant and servient tenement – and the easement must accommodate the dominant land. So a question that often arises in relation to utility companies is whether it is possible to create easements connecting pipes, wires or cables to a single distribution point lying some distance away.
In such circumstances, utility companies often rely on Re Salvin’s Indenture [1938] 2 All ER 498. In that case, the judge took the view that the dominant tenement consists of the whole of a utility company’s undertaking, comprising both corporeal heriditaments and incorporeal heriditaments (ie rights acquired over other land). Consequently, it is possible to create valid easements in sequence, enabling the benefit created by a previous grant to be passed on through subsequent grants in the chain.
The litigation in Bate v Affinity Water Ltd [2019] EWHC 3425 (Ch) concerned a water main and service pipe situated on land in Bishops Stortford. The landowner – who sought an order for their removal and damages for trespass – claimed that a deed of grant of easement in 1947 created nothing more than a licence, that was not binding on successors in title, and suggested that Re Salvin’s Indenture was wrongly decided.
The attack on the validity of the 1947 grant was based on the parties’ failure to identify the dominant land in the deed of grant. But Johnstone v Holdway [1963] 1 QB 601 established that the court can use extrinsic evidence to identify dominant land – and, in Bate, the judge was able to identify the dominant tenement as a small area of land a few yards away. So the judge did not need to fall back on Re Salvin’s Indenture to identify the dominant tenement. But utilities will be relieved to hear that the judge did not disagree with the judgment and indicated that he would have followed the decision, had it been necessary to do so.
Would there have been an easement by prescription, had it been necessary to establish one? The landowner argued that, where a servient owner does not contest use because he or she mistakenly believes that the user has an easement, the use in question is not “as of right”. But the judge disagreed. Servient landowners have 20 years to check whether users have legal rights – by looking at the relevant documents and seeking legal advice – and must accept the consequences of failing to do so.
The water main was installed with the permission of the landowner at the time. But the land had changed hands without any further permission being granted, at which point the user had become “as of right” – unless it could it be argued that it was not sufficiently open to establish an easement by prescription. But the judge ruled that the user was “as of right” because subsequent owners would have been aware of the deed of grant in 1947 and of two manhole covers on the land indicating the presence of water pipes beneath: Stanning v Baldwin [2019] EWHC 1350 (Ch) [132]. Consequently, the water company would have been able to claim a prescriptive easement, had it been necessary to do so.
Furthermore, the water company enjoyed independent statutory powers to lay, maintain and use the water main and pipe – and its decision to seek the grant of a private easement did not prevent it from taking advantage of its statutory powers too.
Allyson Colby, property law consultant
