Allyson Colby analyses an easement case involving a water main and how the court can identify a dominant tenement.
Key points
- The court can use extrinsic evidence to identify a dominant tenement, if it is not identified in a deed of grant of easement
- A water company’s dominant tenement may consist of both its corporeal property and incorporeal property rights
Although utility companies may be able to exercise statutory rights that enable them to lay apparatus, they sometimes negotiate for easements, which create interests in land that bind subsequent landowners. Alternatively, they may choose to rely on wayleaves or consents, which create contractual rights that do not bind successors in title to the land.
The litigation in Bate and another v Affinity Water Ltd [2019] EWHC 3425 (Ch) arose because a landowner had asked a water company to remove a water main from land in Bishop’s Stortford. The company claimed that the water main was installed pursuant to an easement granted in 1947 to transport water from a borehole into the town’s water system. But the landowner attacked the deed of grant. He argued that it created an easement in gross because there was no identifiable dominant tenement, and tried to persuade the judge that the water company had nothing more than a licence.
Dominant land
The landowner relied on Re Ellenborough Park [1956] Ch 131, which sets out the conditions that must be satisfied to create an easement. One such condition is that there must be both a dominant and a servient tenement. However, Johnstone v Holdway [1963] 1 QB 601 established that the court can refer to facts and circumstances known to the parties when the rights were granted to help identify a dominant tenement.
The extrinsic evidence enabled the judge to identify land nearby as the dominant tenement. It housed a borehole and pumping equipment and the judge was satisfied that the transportation of water benefited, or “accommodated”, the borehole land. Consequently, the water company did not need to rely on the High Court’s decision in Re Salvin’s Indenture [1938] 2 All ER 498 to support its claim to an easement. But the landowner had had to attack the decision in order to sustain its arguments and the judge decided to comment, in case he was wrong about the borehole land.
Before Re Salvin’s Indenture was decided, Hanbury v Jenkins [1901] 2 Ch 401 had established that a right of way, such as an easement, can be appurtenant to an incorporeal hereditament, such as a right to fish. Farwell J extended this rationale further in Re Salvin’s Indenture, ruling that the whole of a water company’s undertaking, consisting of its corporeal and incorporeal hereditaments (its physical land and rights acquired over other land), was the dominant tenement.
Some commentators have questioned the decision, arguing that a mix of corporeal and incorporeal property, which may be subject to change, is not legally capable of constituting a dominant tenement. But water and gas companies, in particular, regularly need to enter into sequential easements, and to pass their benefit along a chain, and rely on Re Salvin’s Indenture to help them do so. Consequently, they will be relieved to hear that the judge saw no reason why “in an appropriate case, the dominant tenement for an easement to lay, maintain and use pipes underground could not consist of the undertaking itself, ie the corporeal and incorporeal property rights on and with which the business is carried on”.
Prescription
Prescriptive easements arise where there has been user “as of right”, ie use that has not been authorised, contested or hidden. And, in the absence of an expressly granted easement, and of the requisite statutory powers in favour of the water company, the judge’s decision that there was, in fact, a dominant tenement helped him to decide that the company would have acquired an easement by prescription.
The landowner argued that the water company’s use of the water main had not been “as of right”, due to the mistaken belief that the water company had a valid easement. But, in R (on the application of Barkas) v North Yorkshire County Council [2014] UKSC 31; [2014] 2 EGLR 115, Lord Neuberger observed that “third parties on the land either have the right to be there… or they do not”. So the owner of a putative dominant tenement, who uses land in the mistaken belief that he is exercising a legal right, is still a trespasser. In other words, he is not using the land lawfully, or “by right”, but “as of right”. And similar reasoning applies where the owner of a putative servient tenement is mistaken. Landowners have 20 years to check whether users have legal rights and must accept the consequences if they do nothing.
The water main was installed with the landowner’s permission. But the land had changed hands without any further permission being granted and, from that point onwards, the user became “as of right” unless it could be claimed that it was not sufficiently open to establish an easement by prescription. The judge accepted that the water main was not visible, because it lay underground, but cited Stanning v Baldwin [2019] EWHC 1350 (Ch); [2019] PLSCS 124 in support of his decision that the user was, nonetheless, “as of right”. Subsequent owners of the land would have been aware of the 1947 deed. And there were two manhole covers on the land, which indicated that there were water pipes beneath. Consequently, the user would have been sufficiently open to establish an easement by prescription pursuant to the doctrine of lost modern grant.
Statutory powers
However, the water company had enjoyed statutory powers to lay, maintain and use the water main. It did not have to make a binary choice between using its statutory powers and a private easement, and was not required to make a conscious decision to exercise the powers conferred on it by statute in order to take advantage of them.
Allyson Colby is a property law consultant
