Easements –– Prescription –– Drainage easement –– Radical alteration of dominant tenement –– No increase in quantity of water through servient tenement –– Whether prescriptive easement lost or suspended on radical alteration of dominant tenement –– Whether strict rule in easements of way applicable to easements of drainage
In 1998 the defendant acquired an area of agricultural land for the development of about 1,000 homes. The development included a surface water drainage scheme that would drain through the claimants’ land. It was common ground that the defendant’s land had the benefit of a prescriptive right to drain through the claimants’ land while the defendant’s land was used for agricultural purposes. However, the claimants contended that the development of the defendant’s land prevented the drainage easement from being exercised for the purpose of draining that land. They submitted that the easement, having been acquired by prescription, could not be exercised following radical alteration (from fields to residential development) of the dominant tenement, even where the alterations would have no material effect upon the volume or rate of discharge of water over the servient tenement.
Held: Judgment was given to the defendant. The prescriptive drainage right remained exercisable where the dominant tenement was altered, provided the quantity of the water discharged was not
The following cases are referred to in this report.
British Railways Board v Glass [1965] Ch 538; [1964] 3 WLR 913; [1964] 3 All ER 418
Cargill v Gotts [1981] 1 WLR 441; [1981] 1 All ER 682; (1980) 41 P&CR 300, CA
Harvey v Walters (1873) LR 8 CP 162
Ironside v Cook (1981) 41 P&CR 326, CA
Jelson Ltd v Blaby District Council [1977] 1 WLR 1020; [1978] 1 All ER 548; (1977) 75 LGR 624; 34 P&CR 77; [1977] 2 EGLR 14; 243 EG 47; [1977] JPL 579, CA
Lloyds Bank Ltd v Dalton [1942] Ch 466
Loder v Gaden (1999) 78 P&CR 223
Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P&CR 261, CA
Williams v James (1867) LR 2 CP 577
Wimbledon & Putney Commons Conservators v Dixon (1875) 1 ChD 362
This was the hearing of an application by the claimants, Mr Attwood and others, for declarations and other relief in proceedings against the defendant, Bovis Homes Ltd.
Rodney Stewart-Smith (instructed by Kingsley Smith) appeared for the claimants; Martin Rodger (instructed by Masons) represented the defendant.
Giving judgment, Neuberger J said:
Introduction
The issue in the present is one of some potential general significance in relation to the law of easements, and, in particular, to the extent of an easement acquired by prescription.
Facts
The defendant, Bovis Homes Ltd, is the registered proprietor of a piece of land known as Thistle Hill, Lower Road, Minster, Isle of Sheppey (Thistle Hill). Until recently, Thistle Hill had been used for agricultural purposes. It was acquired by the defendant in 1998. It is now in the course of being developed by the defendant for around 1,000 houses, together with a shopping centre, community facilities, hospital and school and associated infrastructure.
About a third of Thistle Hill (the defendant’s land) is subject to a proposed surface water drainage scheme. This scheme includes the construction of a balancing pond and a V-shaped weir on the defendant’s land. The water passes from the balancing pond southwards through the weir, and out of Thistle Hill along a culvert under a public highway. It then continues along a ditch, which runs through land to the south of the road, and then through Wall End Farm (the claimants’ land), which has been owned by the claimants, Stephen Attwood and his family, since 1989. The northern part of the claimants’ land is farmed for arable purposes. The southern part of the claimants’ land is subject to a management agreement with the Nature Conservancy Council, which requires specified water levels to be preserved in the ditches.
After inconclusive negotiations relating to the drainage of water from the defendant’s land through the claimants’ land, the claimants issued the present proceedings.
The substantive issues on the pleadings as between the parties are as follows.
1. Whether the defendant’s land has acquired the benefit of any drainage easement over the claimants’ land at all.
2. If so, whether the development of the defendant’s land of itself prevents the drainage easement being exercisable for the purpose of draining the defendant’s land.
3. If not, whether the exercise of the drainage easement for that purpose would none the less be unlawful because, as a result of the development of the defendant’s land, an additional burden would be imposed upon the claimants’ land.
4. Whether, alternatively, the defendant is entitled to drain its land over the claimants’ land by virtue of a natural right.
Issue 1 is no longer live: it is common ground that the defendant’s land has the benefit of a prescriptive right to drain through the claimants’ land, and that this right passed to the defendant when it acquired its land. A prescriptive right was acquired many years ago, through continuous use of the ditches on the claimants’ land by water draining from the defendant’s land, while the latter was being used for agricultural purposes, over the past 40 years or more.
Issue 2 is the issue that I have to determine.
If the claimants succeed on issue 2, issue 3 does not arise. If the defendant succeeds on issue 2, then the claimants contend that, at least with the present arrangements on the defendant’s land (the balancing pond and the V-shaped weir), there would be a significant increase in the volume of water draining from the defendant’s land over the claimants’ land. The defendant denies this, but contends that it could carry out attenuation measures on its land that would ensure that, even on the claimants’ case, the quantum of water passing from the defendant’s land over the claimants’ land would not increase beyond what it would have been if the defendant’s land had continued to be used for agricultural purposes. It is agreed that I defer any decision on issue 3. Very sensibly, the parties feel that this is an issue that may be settled if issue 2 is resolved in the defendant’s favour.
Issue 4 does not arise, given that the claimants now accept that the defendant has a prescriptive right under issue 1.
Issue
Is an easement of drainage acquired by prescription still exercisable over the servient tenement (ie the claimants’ land) following a radical alteration (ie from fields used for agricultural purposes to a substantial residential development, with associated commercial, community and infrastructure aspects) to the dominant tenement (ie the defendant’s land), even where the alterations will have no material effect upon the volume or rate of discharge of water over the servient tenement?
At first sight, it may be thought that the question should be resolved in the defendant’s favour, once it is accepted that the ditches on the claimants’ land, burdened with the defendant’s right to discharge water from its land, by virtue of use and enjoyment over a substantial period, will not have that burden in any way increased or altered because of the change, however radical it may be, to the nature and use of the defendant’s land. After all, the claimants are only concerned with the drainage of water over their land, and, if the volume passing through the ditches in their land is unaffected by any change in the defendant’s land, why should they have any cause for complaint? They may object to the development of, and consequent change of use to, the defendant’s land. They may wish to cash in on the profit that the defendant may make from that development. However, such matters are extraneous to the question of drainage. The essential point is that neither the claimants nor their land will be detrimentally affected by the change of use and development of the defendant’s land, so far as water drainage is concerned. That, in essence, is the argument of Mr Martin Rodger, who appears on behalf of the defendant.
However, Mr Rodney Stewart-Smith, who represents the claimants, contends that, as is frequently the case with easements, the law is not as simple or commonsensical as that. His case is that, on the basis of a number of authorities, it is clear that an easement of drainage that has been acquired by prescription will be lost, or at least incapable of lawful enjoyment, if, and so long as, there is a radical change in the use or nature of the dominant tenement.
Authorities relied upon by the claimants
In Gale on Easements (16th ed) 1997, the law is summarised in the chapter on rights of way as follows, in para 9-08:
Where there is an alteration in the dominant tenement the question arises whether the fact of user, over a long period, for the purposes of the dominant tenement as it was during that period establishes a right of user for additional or new purposes of the dominant tenement in its altered state. Speaking generally, and subject to considerations of degree, the answer appears to be in the negative.
The equivalent proposition from the 14th edition was cited with apparent approval by Goff LJ in Ironside v Cook (1981) 41 P&CR 326 at p336.
The claimants’ case, in relation to the easement of drainage, relies upon a number of authorities that are said to support that proposition and that, with one exception, are concerned with rights of way. Williams v James (1867) LR 2 CP 577 was a case concerned with increased use of a right of way acquired by prescription in connection with use of the dominant tenement for agricultural purposes. No question of a change of use or development of the dominant tenement arose. Bovill CJ said at p580:
When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant. Such a right cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen.
At the end of his judgment, at p581, he observed:
If no additional burthen was cast upon the servient tenement the jury might well find that there had been only the ordinary and reasonable use of the right of way.
Willes J expressed himself in these terms at p582:
you cannot extend the purposes for which the way may be used, or for which it might be reasonably inferred that parties would have intended it to be used. The land in this case was a field in the country, and apparently only used for rustic purposes. To be a legitimate user of the right of way, it must be used for the enjoyment of the Nine acre field, and not colourably for other closes. I quite agree also with the argument that the right of way can only be used for the field in its ordinary use as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place.
The next case relied upon by Mr Stewart-Smith is Wimbledon & Putney Commons Conservators v Dixon (1875) 1 ChD 362. The headnote summarises the issue:
The immemorial user of a right of way for all purposes for which a road was wanted and the then condition of the property, does not establish a right of way for all purposes in an altered condition of the property where that would impose a greater burden on the servient tenement. Where a road had been immemorially used to a farm not only for usual agricultural purposes, but in certain instances for carrying building materials to enlarge the farmhouse and rebuild a cottage on the farm, and for carting away sand and gravel dug out of the farm:–
Held, (affirming the decision of Jessel, MR), that that did not establish a right of way for carting the materials required for building a number of new houses on the land.
James LJ said at p368:
I said when this case was first opened, that I was strongly of opinion that it was the settled law of this country that no such change in the character of a dominant tenement could be made as would increase the burden on the servient tenement.
On the same page, he went on to say:
you cannot from evidence of user of a privilege connected with the enjoyment of property in its original state, infer a right to use it, into whatsoever form or for whatever purpose that property may be changed, that is to say, if a right of way to a field be proved by evidence of user, however general, for whatever purpose, qu‰ field the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory or into a town, and then use the way for the purposes of the manufactory or town so built.
Mellish LJ observed at pp371-372:
Is there any such evidence of user for purposes beyond what was necessary, and beyond what was reasonably required for the occupation of the land in its existing state, as that we can find that the right extends beyond that?
Finally, Baggallay JA said at p374:
Then the second question is, whether the right to use this way being limited to the particular purposes, as to which there has been actual proof, can be extended to the purposes for which the Defendant desires to use it. I think he cannot do that consistently with the rules of law which have been from time to time enunciated, and particularly in the case of Williams v James, that you must neither increase the burden on the servient tenement, nor substantially change the nature of the user.
I go forward 90 years to British Railways Board v Glass [1965] Ch 538, a more recent decision of the Court of Appeal. So far as relevant to this case, the issue there was based upon the assumption that the defendant had acquired, by prescription, a right to use a way, in connection with his land, for the purposes of a caravan site, upon which there were six caravans at the relevant period. The Court of Appeal held that a substantial increase in the number of caravans was not such as to increase the burden of the easement beyond what was permissible. Lord Denning MR said at p555B-C:
It is quite clear that, when you acquire a right of way by prescription, you are not entitled to change the character of your land so as substantially to increase or alter the burden upon the servient tenement. If you have a right of way for your pasture land, you cannot turn it into a manufactory and claim a right of way for the purposes of the factory.
Later, at p555D-E, he quoted the substance of Sir Richard Baggallay’s observations in Wimbledon.
Harman LJ said at p562E-G:
[Y]ou must… base your conclusion on a consideration of what must have been the supposed contents of the lost grant… If this be supposed to be a grant of the right to use the “blue land” as a “caravan site,” then it is clear that a mere increase in the numbers of the caravans using the site is not an excessive user of the right. A right to use a way for this purpose or that has never been to my knowledge limited to a right to use the way so many times a day or for such and such a number of vehicles so long as the dominant tenement does not change its identity. If there be a radical change in the character of the dominant tenement, then the prescriptive right will not extend to it in that condition. The obvious example is a change of a small dwelling-house to a large hotel, but there has been no change of that character according to the facts found in this case.
Davies LJ, having observed that there had been no alteration in the nature of the dominant tenement’s use, said at p567D-E:
The question whether a mere increase without any alteration in the character of the use of a right of way can be prevented by the owner of a servient tenement is oddly free from authority. We were referred in this connection to Wimbledon and Putney Commons Conservators v Dixon. It must be observed that in that case the court came to the conclusion that there had been a substantial alteration in the nature of the use of the dominant tenement and so of the right of way; consequently any observations as to mere increase in the use were obiter.
In connection with rights of way, I was also referred to a recent unreported decision, Loder v Gaden 28 July 1999*, where, in a judgment given by Hale J, the Court of Appeal cited with approval the observations of the Court of Appeal in Wimbledon, to which I have already referred, and reached the relevant conclusion at p16 of the transcript:
There is no reason to disturb [the judge’s] conclusion that the Gadens’ [they were the owners of the dominant tenement] present business, and their proposed house (whether or not it can be regarded as a farmhouse), amount to a substantial change in use and an additional burden upon the servient tenement.
* Editor’s note: Reported at (1999) 78 P&CR 223
The only case relied upon by Mr Stewart-Smith that was not concerned with a right of way was Cargill v Gotts [1981] 1 WLR 441. In that case, the plaintiff had a prescriptive right to go onto the defendant’s land to draw water for his agricultural activities on his land. The defendant contended that the change in the nature of the
Water used for crop spraying is just as much used for agricultural purposes as water used for bullocks and the fact that more water may be required for crop spraying than for watering bullocks is not sufficient to destroy or alter the nature of the right asserted or the easement acquired.
At pp448H-449C he said:
A mere increase in the enjoyment of the right asserted does not throw into confusion the nature of the right asserted, nor does it destroy the right. Thus, in British Railways Board v Glass… the right asserted during the 20 year prescriptive period was a right of way to a field used from time to time as a caravan site. During the period the number of caravans on the site increased from six to 30. This did not prevent the owner of the field from obtaining a prescriptive right of way for caravans without limitation on numbers. There had been no change in the character of the dominant tenement. In the present case the increase from 300 gallons to a maximum of 4,000 gallons without any change in the character of the dominant tenement did not affect the nature or quality of the right asserted during the prescriptive period.
In Woodhouse & Co Ltd v Kirkland (Derby) Ltd [a right of way case] increased user, as distinct from user of a different kind or for a different purpose, did not affect or prejudice the acquisition of a prescriptive right of way. Plowman J… refrained from considering “whether an increase in user, if very great, can ever of itself amount to excessive user.” It is equally unnecessary to decide the point in the present case because, in the circumstances, the increase in user cannot be described as being very great, measured, as it must be measured, by the effect of the user on the stream and on riparian owners.
I have read the cases in some detail, because they form the lynchpin of Mr Stewart-Smith’s case.
Principles he derived from the cases
I would summarise the points to be derived from these cases as follows:
The only case where the question at issue was whether a change in the nature of use (as opposed to intensification of the existing use) of the dominant tenement could destroy, or result in an impermissible enjoyment of, a right of way obtained by prescription was Wimbledon.
Not only in the decision in Wimbledon (binding upon me as a decision of the Court of Appeal), but in other cases, it has been stated or assumed to be right that a substantial change in the nature of the use of the dominant tenement will result in the right to use the way, obtained by prescription, being either destroyed or impermissible.
There is a dispute between the parties in relation to the observations of the Court of Appeal in Wimbledon, and, indeed, in the other cases, as to the proper analysis of those observations. Is the principle that a radical alteration in the use or nature of the dominant tenement of itself puts an end to, or renders impermissible any use of, the right of way? This is what I shall call the “strict rule”. Alternatively, is the rule more flexible, namely that a radical change in the use or nature of a dominant tenement will lead to such a conclusion, unless the change is such that it will not result in any significant increase in the quantum, or any significant alteration in the nature, of the use of the way from that enjoyed in relation to the original use of the way. By “quantum” I mean frequency of usage, and by “nature” I mean, for instance, lorries, motor cars, pedestrians, bicycles and so on.
In that connection, observations that one sees in the cases, whether part of the ratio (as in Wimbledon) or included as the obiter observations (as in Williams and Glass), relating to a change from a field to a factory, from a house to a hotel or from a field to a housebuilding site, do not seem to me to be decisive. They all carry with them the understandable assumption that the changes would involve an increase in the quantum of the user and/or a change in the nature of the user of the way resulting from the change in the use of the dominant tenement.
The advantage of the flexible rule is that it can be said to be in accordance with commercial common sense, as discussed above. Why should the owner of the servient tenement, in that capacity, care about a change of use to the dominant tenement, however radical, if it can be shown that it makes no difference to the quantum or nature of the use of the way? It could be said to be contrary to common sense that if a right of way has been obtained by prescription in favour of a building being used as a hotel, the right to use the way would be lost if the owner of the dominant tenement changed the use to a house, and could demonstrate that it was inconceivable that anything other than a diminution in the quantum of the use would arise and that there would be no change in the nature of the use.
The advantage of the strict rule is that it leads to a relative degree of certainty. It might be asked how one could predict the extent of the future likely use of the way following a change of use of the dominant tenement. For instance, what would be the position if the radical change of use was itself changed or subsequently intensified? It might also be asked, is one to compare the projected use of the way, following the change of use of the dominant tenement, with the historic, actual use of the way, or with what might have been the maximum permitted use of the way in relation to the original use of the dominant tenement?
I would tentatively suggest that the rule may be that if there is a subsequent radical change in the use of the dominant tenement, a right of way acquired by prescription can only continue to be used in connection with the dominant tenement if the court can be satisfied that the change cannot result in the use of the way being greater in quantum, or different in character, from that which it was for any continuous period of 20 or 40 years during the period of use of the way in connection with the original use of the dominant tenement. (For completeness, I should explain that the periods of 20 or 40 years are selected upon the basis of the periods necessary to obtain an easement, be it a right of way or other easement, by prescription). The onus would be on the owner of the dominant tenement, and would, I suspect, normally be difficult to satisfy in relation to a right of way.
It should be added, however, that the strict rule can be justified upon an additional ground to that of certainty. I have in mind the reasoning of Harman LJ in Glass, to which I have not so far referred. This is to the effect that a prescriptive right of way involves a fictional grant, and one should presume that this fictional grant is related to, indeed limited to, the type of use to which the dominant tenement was put at the time the right was acquired.
Whichever of the two rules is correct, it is clear that a prescriptive right of way arises from a fictional grant. Whether the flexible rule or the strict rule applies, it is accepted by both parties that the general purpose of the rule is to ensure that the owner of the dominant tenement does not use the way for a purpose, or to a degree, not contemplated by the fictional grant.
Application of the principles to this case
I turn now to consideration of the application of these principles, so far as one can identify them, to the present case.
It is clear to my mind that there are principles to be derived from the right of way cases that apply equally to all easements. The law of easements relates to a particular category of rights, and there will be principles that apply to all types of rights within that category. That is demonstrated by the decision in Cargill, where the principles in the right of way cases were applied to a different easement.
However, to my mind equally self-evidently, while there will be general principles, applicable all easements, to be derived from the right of way cases, there will also be principles applicable more specifically to rights of way that do not, at least necessarily, apply to all other types of easements.
Thus, on any view, a change of use of a building in the dominant tenement, however radical and far-reaching that change may be, cannot result in an easement of support acquired by prescription against an adjoining building being lost. A change from a house to a hotel,
[I]f, in any case, it were proved that there had been a change at some time within a period of twenty years before action brought in the construction of the dominant tenement of such a kind as to throw a substantially greater weight on the servient tenement, then in such a case an easement for the support of the changed building could not be maintained, but when, as in the present case, there is no evidence of any greater burden being thrown on the servient tenement by the change in the dominant tenement, in my judgment, the right, whether it exists or is in course of being acquired, is not affected.
That approach appears to have been endorsed by the Court of Appeal in Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P&CR 261. At pp265-266 Wilmer LJ said:
As I understand it, the principle, dating back at least to Luttrell’s Case, [(1602) 4 Co Rep 86] is that an easement is extinguished when its mode of user is so altered as to cause prejudice to the servient tenement. Thus, an easement of support in relation to a building may be extinguished if the building is so altered or reconstructed as to throw a substantially increased burden on the servient tenement to the prejudice of the owner thereof.
Similar observations are to be found in the judgment of Russell LJ at pp271-272 and Fenton-Atkinson LJ at p274. Thus, Russell LJ said:
In my judgment, in a case such as this, where the structure in respect of which the easement of support had been acquired remains in position, and all that has happened is the leaning upon it of an additional structure, the easement is not to be considered as released or extinguished unless the additional support required would (if claimable in law) impose a substantial additional restriction upon the use to which the servient tenement could be put or upon legitimate activities thereon. In my judgment, it is for the servient owner to establish this, and I do not consider that the evidence suffices.
Although the easement in Cargill had obvious similarities to the easement in the present case, in that it involved water, there are important differences. First, like a right of way, the easement in Cargill involved the owner of the dominant tenement going onto the servient tenement, and indeed stopping on the servient tenement with large vehicles –– see the observations of Templeman LJ at p448E. Second, Cargill involved the abstraction of water from the servient tenement, not merely the running off of water over the servient tenement.
If what I have called the flexible rule in relation to rights of way is correct, then the defendant clearly succeeds here. There would be no change in the volume of the water discharging from the defendant’s land over the claimants’ land, and, therefore, whether one looks at the quantum of water or the manner of its discharge, there is no change.
If, however, the strict rule applies to rights of way, then I accept that the position is more difficult, but, in the end, it does not cause me to reach a different conclusion.
It seems to me that, in relation to the point at issue between the parties, the easement in the present case is very different from a right of way. The change of use of the dominant tenement would not increase the quantum of water coming onto the dominant tenement. It would not therefore, by any means, automatically be expected to alter the quantum of water passing from the dominant tenement to the servient tenement, and would most certainly not alter the nature of what passes from the dominant tenement to the servient tenement.
However, I accept that, particularly where, as here, the dominant tenement was originally agricultural land that will have soaked up some of the surface water, the result of developing the dominant tenement may be such that less water may be soaked up (although substantial new drainage will be included as part of the development infrastructure). Accordingly, it is possible that the amount of water discharging from the dominant tenement over the servient tenement could increase as a result of the change of use of the dominant tenement. None the less, one can fairly easily, with the assistance of mechanical work and expert evidence, establish that works of attenuation, of the sort already carried out (and possibly to be carried out) in this case, would ensure that the amount of water discharged from the dominant tenement, through the servient tenement, will not exceed what would have been (and has been) discharged from the dominant tenement if it had continued to be used (and when it was being used) for its original purpose. In other words, unlike with a right of way, the problems of assessing possible changes in the quantum and nature of the use of the easement, as a result of the change of use of the dominant tenement, which problems are inherent in rights of way cases, simply should not arise in cases involving discharge of water. If the underlying principle is that the servient tenement should not suffer any risk of a significant extra or different burden as a result of the change of use of the dominant tenement, it seems to me that my conclusion accords with principle.
This view (at least upon the assumption that the strict rule is correct) involves distinguishing this type of case from the rights of way cases. However, it does not involve a radical departure from any principle of established law. I have already referred to the approach of the courts in cases where there is a change in the dominant tenement, which enjoys an easement of support by prescription. Even more similar to the fact of the present case, perhaps, are cases involving redevelopment of a building on the dominant tenement that had acquired an easement of eavesdropping over adjoining land. In Harvey v Walters (1873) LR 8 CP 162, Grove J, giving the judgment of the court (which included Bovill CJ), rejected the contention that significant alterations to the building resulted in the loss of the easement. He said at p166:
[T]he question here… is, whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burthen on the servient tenement… [T]here must be an additional or different servitude, and the change must be material either in the nature or in the quantum of the servitude imposed.
I have not, so far, dealt with the reasoning of Harman LJ in Glass. It does not lead me to change my view. I have no reason to think that the express grant of a right to drain water is normally limited by reference to a specific use of the dominant tenement. The reason why the grantor of a right of way might be presumed to limit the purpose for which it is granted is because a change in the use of the dominant tenement could result in a change in the use of the right of way, quite possibly beyond recognition. For the reasons I have given, that would not be the case, or at least would not be nearly so strongly the case, in relation to the right to drain surface water. The amount of water actually received by the dominant tenement cannot be altered by any change in the use of the dominant tenement, or indeed by any development of the dominant tenement, although I accept, as I have said, that a development could change the quantum of water that is absorbed on the dominant tenement rather than passing from it.
Furthermore, the approach of Harman LJ could be said to be circular or self-defining, if I may say so with some diffidence, bearing in mind that it was propounded by Harman LJ and appears to have been applied by Templeman LJ in Cargill. The facts of Cargill provide rather a good illustration. One could say, as the Court of Appeal said, that it is to be assumed that the use for which water could be abstracted from the servient tenement was to be limited to agricultural purposes, which enabled the plaintiff to succeed. However, it seems to me that there is no intrinsic reason why the use should not have been limited to stock-watering purposes, as opposed to crop-spraying purposes. Why does one define the presumed restriction on the user of the dominent tenement? I would have thought that the answer is because of the fear, particularly in relation to rights of way, that very substantial changes in the extent and nature of the use of right of way could result from changes in the use of the dominant tenement. It does not seem to me that anything like the same principle applies to changes in the dominant tenement so far as the discharge of water is concerned. To my mind, in cases of easements of drainage, the position is as with easements of
Mr Stewart-Smith seeks to distinguish between what he called “positive” easements and what he called “negative” easements. He said that the law relating to a right of support (a negative easement, not involving something that would otherwise necessarily be a trespass) may justify a different approach from the law relating to a right of way (a positive easement that, if exercised without the right existing, would constitute a trespass that could be the subject matter of a claim by the owner of the servient tenement as of right). Upon that basis, Mr Stewart-Smith says that the passage of water falls into the latter category, and therefore the rules applicable to rights of way, rather than the rules applicable to the rights of support, apply to a case such as this. That argument is attractive, but in the end I do not find it convincing. As I have said, it appears to me that the same principles apply to all easements. Where an easement is obtained by prescription, a radical change in the use of the dominant tenement may result in a substantial change in the use of the easement, which could impose a substantially increased or different burden upon the servient tenement. That would, at least normally, result in loss or suspension of the easement. The position is rather different in relation to the burden imposed by an easement of support (or, indeed, of eavesdropping), not least because it is much easier to predict and measure, and one does not need the same hard-and-fast test that, if the strict rule is right, applies to rights of way. In that context, it appears to me that the right to discharge water is comparable to a right of support or to eavesdrop and not to a right of way.
Conclusion
In the event, therefore, I propose to determine this issue in favour of the defendant. In reaching this conclusion, I have not relied upon cases that were referred to me involving express grants of easements. While nothing in those cases has caused me to doubt the conclusion that I have reached, I think it is safer to rest my reasoning upon authorities dealing with easements acquired by prescription.
I should also add that I have been told that, in accordance with most planning permissions granted for development of agricultural land, the local authority have imposed a condition, not merely requiring adequate drainage for the development on the dominant tenement, but requiring it to be to a standard so as to ensure that the burden of water draining over neighbouring and adjoining land should not be increased. I do not think that is a factor that I can fairly take into account when considering the issue of principle that I am asked to decide, but it is a point that inevitably gives me some comfort.
I am very grateful to counsel for the arguments they have presented, and, for the reasons I have come to, I propose to determine this issue in favour of the defendant.
Claim dismissed.
