Easement of way does not extend to passage of sewage through pipes laid along the route of the way — No easement of passage of sewage established — Damages and injunction awarded against offending owner — Further awards of damages for misuse of, or interference with, the way — Judge’s hope that parties would learn to give and take
In the first of these two actions, which were heard together, Mrs Elizabeth Victoria Penn, of 7 Little Twye Cottages, Buckland Common, Buckinghamshire, sought an injunction to restrain Mrs Marguerite Ruth Wilkins, of 5 Little Twye Cottages, from interfering with the passage of sewage from a cesspit in the back garden of her (Mrs Penn’s) cottage over the centre way between nos 4 and 5 to a sewage tanker by means of temporary pipes laid at the rear of nos 5, 6 and 7. Mrs Wilkins counterclaimed an injunction to restrain Mrs Penn from encroaching upon, or procuring visitors and tradesmen to exceed, rights declared by an order of the Aylesbury County Court dated June 11 1965 and subsequently affirmed by the Court of Appeal. In the second action Mrs Wilkins claimed damages for trespass against Mr Robert Stanley Goldbourne and his wife, Mrs Sylvia Goldbourne, of the King’s Head, Tring, owners of 8 Little Twye Cottages, and against Mr James Adams and his wife, Mrs Anne Adams, of 6 Little Twye Cottages.
Mr R R Scott (instructed by Cripps, Harries, Willis & Carter) represented Mrs Penn, Mr and Mrs Goldbourne and Mr and Mrs Adams. Mrs Wilkins appeared in person.
Giving judgment, MEGARRY J said that the first action was commenced by writ on February 14 1968 by Mrs Penn against Mr and Mrs Wilkins. The Wilkins’ marriage was subsequently terminated by divorce; Mr Wilkins moved away, and the action continued against Mrs Wilkins alone. Mrs Penn lived at no 7. From 1919 to 1946 she was tenant of the property. On July 24 1946 it was conveyed to her by a conveyance which also included no 8, but by a conveyance dated May 26 1951 she conveyed no 8 to Mr and Mrs Goldbourne–her son-in-law and daughter–the conveyance reciting that they had provided half the purchase-price of the two cottages in 1946. Mrs Wilkins lived at no 5, which on September 7 1959 was conveyed to her and her former husband jointly. By a release dated February 1 1967 Mr Wilkins released his interest in no 5 to Mrs Wilkins, who then became sole owner. She also owned no 6 under a conveyance of June 29 1970. That property was occupied by a tenant. Mrs Penn’s action arose out of a cesspit which she had had constructed in the back garden of no 7. She claimed the right to have this|page:114| emptied by means of a sewage tanker either standing on the parking square adjoining the cottages, or stationed in the road outside the centre way adjoining no 5, the sewage then being conveyed through temporary pipes laid along the rear access way and the centre way. In fact it was not practicable, even if possible, for a sewage tanker to station itself in the parking square, so that it would have to stand, wholly or substantially, either in the centre way or in the road outside. The latter certainly seemed to be more sensible. When this was done, the pipes would run down the side of Mrs Wilkins’ house at no 5, as well as along the back part, and it was to this that she objected.
By her defence, Mrs Wilkins acknowledged that Mrs Penn had a right to pass and repass on foot over the disputed ways, but denied that she had the right to have her cesspit emptied in the manner claimed. She (Mrs Wilkins) claimed to be owner of the half of the centre way nearer to no 5, and also of the rear access way around the back of nos 5 and 6. She based this claim on the result of the conveyancing which took place, and alternatively on limitation. By her counterclaim, she pleaded various acts of trespass and nuisance, in particular the fact that on numerous occasions, by Mrs Penn’s instructions, Mrs Penn’s cesspit was emptied by a tanker stationed in the centre way. She sought an injunction to restrain Mrs Penn from encouraging persons to exceed the rights of user said to have been declared in a judgment in the Aylesbury County Court on June 11 1965, which judgment was subsequently affirmed in the Court of Appeal. In her reply and defence to the counterclaim, Mrs Penn admitted that she had employed an independent contractor to empty the cesspit for her, but made no admissions as to where on the centre way or the parking square the tanker stood, or where on the rear access way the pipes were laid. She made no admissions as to Mrs Wilkins’ other allegations of trespass and nuisance, and she alleged that Mrs Wilkins’ septic tank had an overflow into the drainage system which ran along the rear access way and caused a nuisance by smell. He (his Lordship) could only hope that once all parties concerned knew what, in his judgment, their rights were, they would be able to find some way of living in neighbourly proximity without litigation.
The first question was whether Mrs Penn was entitled to the easement she claimed, so that she had the right to pass sewage over the ways concerned. She had in 1966 succeeded in the county court and the Court of Appeal in establishing a vehicular right of passage over the centre way, and a right to park vehicles on the parking square. It might be that her success in those proceedings had encouraged her to build her back-garden cesspit, but it had not been, and could not be, suggested that by creating a situation in which she needed the easement claimed she could confer on herself an easement of necessity. Did she ever attain any easement entitling her to have sewage from no 7 removed along the rear access way and down the centre way? It was necessary to look at the conveyances. He (his Lordship) could see nothing in these to support the contention that when they were executed they gave a right of passage over the rear access way for the emptying of cesspools. No such right could be said to fall within the words of the conveyance, especially the words ‘as at present subsisting.’ The occupants of the cottages at the time of the first conveyances, October 1924, periodically removed the contents of the earth closets themselves, carrying these down the back garden and burying them there. By 1946 this had continued for some years, and he (Megarry J) could not see in what way any right of passage such as contended for by counsel for Mrs Penn could be conferred by the words ‘as at present subsisting.’ Nor did he think that section 62 of the Law of Property Act 1925 could produce any better result for Mrs Penn. He could not see how the right of passage claimed could be brought within the section. In no way was it a right appertaining to no 7, or reputed or known as appurtenant to it. Section 62 was apt for conveying existing rights, but it did not resurrect mere memories of past rights. Nor could he (his Lordship) see any basis for an implied grant. There was nothing to create in 1946 an easement of passage over the rear access way and centre way for sewage disposal when for so long there had been no disposal of that kind.
The next question was Mrs Wilkins’ title. It appeared clear that the 1946 conveyance of no 5 included all that was then known as part of no 5, including the appropriate proportion of the centre way, the parking square, and the rear access way. No doubt a similar result would arise in the conveyances of the other houses. Mrs Wilkins’ alternative claim was based on limitation. If he (his Lordship) had had to decide this point, he would have held that Mrs Wilkins had failed to establish a title by limitation. She did not go into occupation until September 1959, so that she had to rely on possession by her predecessors in title. She relied partly on her maintaining and repairing of the rear access way, but this showed little, because by virtue of being a dominant owner she had a right to repair the way in any event. He (his Lordship) did not think the evidence established sufficient possession by Mrs Wilkins of the land in dispute to found a title to it by limitation, therefore, but as already stated, he accepted her paper title, and he dismissed Mrs Penn’s claim against her for an injunction and damages.
In her counterclaim for an injunction and damages, Mrs Wilkins had particularised various acts of trespass and nuisance on the centre way, the parking square and the rear access way. She alleged that Mrs Penn had encouraged, invited or procured her visitors, tradesmen and workmen to park their vehicles on the centre way and obstruct it, and deposit building materials and equipment on Mrs Wilkins’ half of the parking square. She further said that workmen working on the construction of Mrs Penn’s cesspit frequently crossed and re-crossed her back garden. She further alleged that the route of the pipes along the rear access way and centre way was taken on the instructions of Mrs Penn or her solicitors: Mr Adams, she said, with Mrs Penn’s encouragement rode his motorcycle along the rear access way late at night or early in the morning; and Mrs Penn procured some building contractors to enter Mrs Wilkins’ land to inspect the drainage system and rear access way. He (his Lordship) would begin by observing that these acts, in so far as they were done without authority and without Mrs Wilkins’ consent, were acts of trespass. Even in the case of a car standing in the centre way, there would be two wheels trespassing on Mrs Wilkins’ half of the land. It followed that there could be no claim in nuisance, except possibly one for nuisance by smell caused during the emptying process. The evidence as to all these matters was conflicting, not least as to the extent to which Mrs Wilkins had been injured. He (Megarry J) had soon formed the opinion that much of her evidence was considerably exaggerated. She seemed to be a person more concerned than most with everything being just so, and more readily disturbed than most by small incidents. In particular, she had said that as a state-registered nurse she was used to smells which others could not stand, but the sewage emptying made her feel sick and unable to eat. After the hearing, he (his Lordship) had viewed the cottages, and the local authority, by arrangement and with the consent of all parties, had caused a vehicle to empty Mrs Penn’s cesspit by the method and route of which Mrs Wilkins complained. It was a bright and fresh April day, and during the emptying process he (the judge) had constantly moved around between the centre way, no 5, the open cesspit and the back garden. Smell was difficult to evaluate, both quantitatively and qualitatively, but from first to last he never once found the smell in the least nauseating or distressing. He had no reason to believe that his sense of smell was impaired, or inferior to that of other persons. Inside no 5, he found, contrary to what|page:115| Mrs Wilkins had asserted, no smell adhering to the soft furnishings. The facts that the cesspit was not full when the emptying began, and there was a varying breeze, did not explain the difference between the smell as described and the conditions as he had found them. He thought that some small complaint could justifiably be made about noise during the emptying process.
To summarise, he did not think Mrs Wilkins fabricated evidence, but felt no doubt that she often exaggerated it–not deliberately, but probably through the strength of her feelings and through brooding over matters for so long. He accepted that tradesmen and others had parked on the centre way over the years for substantial periods. He thought that Mrs Penn had knowingly encouraged tradespeople who, she knew, had parked their vehicles on the centre way to leave them there for longer than they otherwise would have done, and that by doing so she had made herself responsible as a joint tortfeasor with the tradespeople for their joint trespasses. The county court decision, affirmed by the Court of Appeal, established no easement of parking on the centre way, as distinct from the parking square, and no such easement had been established before him (his Lordship). Mrs Wilkins accordingly succeeded under this head. The claim concerning the riding by Mr Adams of his motorcycle along the rear access way failed. He (Megarry J) did not think Mrs Penn was in any way responsible for this. He would grant Mrs Wilkins an injunction confined to the parking of vehicles on her half of the centre way, and damages for trespass, which would include in them any element in respect of acts capable of constituting a nuisance. For parking on Mrs Wilkins’ half of the centre way, he would award £50; for trespass by builders during the construction work, £75; for emptyings of the cesspit during 1967 and 1968, when the tanker stood in the centre way–including damages for nuisance by smell–£50; and for inspection of drainage in the rear access way, £2.
In Mrs Wilkins’ second action, against Mr and Mrs Goldbourne and Mr and Mrs Adams, he (his Lordship) did not think there had been any substantial interference with the right of way along the rear access way by the hanging of washing, something which had been a practice of long standing, ante-dating the 1946 conveyance; but all concerned would be well advised to keep the way clear at all times of hanging obstacles, and all gates should be kept so that they could be freely opened and closed. The gate at the entrance to the centre way from the road stood substantially on Mrs Wilkins’ half, and he (Megarry J) thought that it was hers. There appeared to have been a running battle over this gate, with Mrs Wilkins repeatedly coming out of no 5 to shut it. He thought it was clear that Mr Goldbourne and Mr Adams materially injured the gate and gatepost, and a sufficient case had been made out against each for a modest award of damages. He awarded £5 against Mr Adams and £7 against Mr Goldbourne, the latter sum to include damages for trespass by parking. He was further satisfied that Mr Adams gave instructions for the tanker to go on to the centre way and stand there, and Mrs Wilkins would be awarded a further £35 against him under this head. He (his Lordship) hoped that the parties would accept that a little tolerance, and some give as well as take, might avert further expenditure of time, money and peace of mind; and that all concerned would find some way of living with each other in a state, if not of peace, at lease of non-aggression.
