Defendant’s predecessor executing deed giving plaintiff right to construct drains on designated part of predecessor’s land – Only certain provisions expressed in favour plaintiff’s land – Defendant acquiring non-designated part of that land – Whether defendant bound to afford access to designated part
Intending to carry out a substantial industrial development on its own land in Thatcham, Berks, the plaintiff (BriTel) entered into negotiations with Penta, who owned adjoining land (the Penta land), so as to be able to lay surface water drains at a particular location on the Penta land. By the opening words of para 1 of a deed executed on March 30 1992, Penta, in consideration of the sum of £5,000, purported to grant “as beneficial owner” certain rights “in fee simple”. As recited in separate subparagraphs those rights were: (i) to enter upon the Penta land to lay the drains where indicated (the drain site) and thereafter from time to time to inspect maintain supplement and remove them; (ii) to carry out necessary earth removal work; (iii) the right of free passage of surface water through such drains. By clause 2 Penta covenanted not to do certain acts which could otherwise interfere with the operation of the drains. The Penta land was subsequently sold off in three lots, A B and C, which were respectively acquired by the defendant and two other buyers. The drains site lay on plots B and C but, for purposes of access, BriTel claimed to be entitled to bring its vehicles and equipment over lot A. The defendant denied that such a right subsisted as an easement, as distinct form a purely personal obligation incurred by Penta, and based its contention primarily on the fact that, whereas the third right conferred by para 1 and the covenants in para 2 were expressed to be “for the benefit of BriTel’s land and every part of it”, the first two rights in para 1 were simply “for BriTel and its workmen contractors and others”.
Held The plaintiff was entitled to the easement claimed
While there was force in the defendant’s contention, the deed had to be construed as a whole. The intention to make all three rights exercisable against successors in title could be inferred, not only from the opening words of para 1, but also from the indefinite duration of the right to inspect, maintain and remove. Moreover the restrictive covenants in clause 2 would be pointless unless the first two rights could be exercised. Given the nature of the first two rights and their interaction with the other admittedly proprietary provisions in the deed, the parties should be taken to have intended the words “Penta” and “BriTel” to include their successors in title.
John Furber QC (instructed by Maxwell Batley) appeared for the plaintiff; Kim Lewison QC (instructed by Dibb Lupton Alsop) appeared for the defendant
