Conveyance containing reserving right to connect drainage system to be installed on conveyed land – Right to be exercised within 21 years – Various drainage connections made – Whether right exercised within 21-year limit – Judge holding connection made out of time – Appeal dismissed
The plaintiffs were the owners of Corofin, Rookery Way, Haywards Heath, which was to the south of the defendants’ property, Winterhill, Rocky Lane, Haywards Heath. The land on which the respective properties were built was at one time owned by one owner. In 1971 the land on which Corofin was subsequently built was conveyed with three other properties to a firm of builders (the conveyed land). An easement was reserved in the conveyance that read “Except and nevertheless reserving unto the vendors and their successors in title . . . the right for themselves and their successors in title . . . to connect the drainage from [Winterhill] to the drainage system to be installed to serve the dwelling houses erected or intended to be erected on the [conveyed land] PROVIDED THAT such right shall be exercised within a period of twenty one years . . . and until such connection as aforesaid shall have been made the right to discharge the outfall from the septic tank on [Winterhill] by means of uninterrupted passage . . . through the line of pipes passing through the [conveyed land] with the right to enter . . . for the purpose of making such connection and thereafter maintaining . . . and renewing . . . drains and pipes causing no unnecessary damage . . . and making good . . . any damage thereby occasioned”.
In 1973 the firm of builders connected the septic tank drains into a private drainage system on the conveyed land. At a later date, land that had formed part of Winterhill was conveyed to form a new property known as Tanglewood. A new drainage system was installed to serve Tanglewood and a right was granted to lay a new drain across Winterhill to connect to the private drainage system serving the conveyed land. In 1986 a drain from a new second kitchen at Winterhill was individually connected into the private drainage system serving the conveyed land. However, the overflow from the septic tank on Winterhill continued to discharge pipes through Corofin until 1996. In 1996 it was disconnected when a new drain was constructed to a manhole on Winterhill, thereby connecting it to the Corofin drainage system.
The county court held that the defendants had been connected to the Corofin drainage system out of time and therefore made a declaration that they were not entitled to discharge foul waste from Winterhill through the 1996 drain into the drainage system serving the conveyed land, and that they had not been entitled to connect the 1996 drain to the drainage system. The defendants appealed, contending that either the 1973 connection by the builders, or the connection from Tangelwood, or the 1986 connection from the second kitchen at Winterhill, was a connection within the reservation and accordingly the right had been exercised within 21 years.
Held The appeal was dismissed.
1. The right of connection given in respect of the drainage system of Winterhill pointed to there being a drainage system already in operation, which could be contrasted against “the right to discharge the outfall from the septic tank”, which was to continue until the “drainage system to be installed”. It was thus implicit in the reservation that the septic tank would be superfluous once the drainage system had been installed. Therefore the connections prior to 1996 had not satisfied the reservation and accordingly the defendant had fallen foul of the 21-year provision.
2. There was no possible harm to the plaintiffs in the connection, rather it seemed they were intent on exploiting ransom to make the defendants pay for the connection. It was to be hoped that the judge who eventually assessed damages did not think that it was necessary to be overly generous to the plaintiffs.
Timothy Fancourt (instructed by Pritchard Englefield) appeared for the plaintiffs; the defendants appeared in person.
Thomas Elliott, barrister
