Easements — Drainage — Extent of right — Right to use and connect to service-conducting installations in, on or under adjacent property — Whether right restricted to drain crossing claimants’ property — Whether right permitting new pipe to be laid to alternative drain on first and second defendants’ land
The claimants owned a bungalow on a site adjacent to the first and second defendants’ property, which in turn adjoined the property of the third and fourth defendants. By a 2003 conveyance to the first and second defendants, the parties’ common predecessors in title had reserved certain rights in favour of the bungalow site, upon which the bungalow was then in the course of construction. The reserved rights included a right “to use and connect to the Service Conducting Installations in on or under” the first and second defendants’ property and to enter onto that property for the purpose of exercising the right. The first and second defendants’ property was served by two drains an old drain that ran from the bungalow site across the defendants’ properties to the main sewer, and an alternative drain that did not cross the bungalow site. The defendants subsequently blocked the old drain where it passed through their properties. The claimants therefore claimed the right to lay a pipe across the first and second defendants’ property to the alternative drain. In proceedings brought by the claimants for a mandatory injunction, a preliminary issue was tried as to the proper construction of the claimants’ rights under the 2003 conveyance. The claimants contended that the right to use and connect to services entitled them to construct such connecting media as were required to enable a connection to be made between the bungalow site and a drain on the first and second defendants’ land. The first and second defendants argued, partly by reference to plans attached to the conveyance, that the parties had intended to permit a connection to the old drain only.
Held: The preliminary issue was determined in favour of the claimants. (1) The ordinary and natural meaning of a right to use and connect to service-conducting installations that were in, on or over the first and second defendants’ property, for the benefit of the bungalow site upon which it was contemplated that a dwelling in need of a drain was to be constructed, was that the owner of the bungalow site could do whatever was necessary to connect the drains on that site with drains on the first and second defendants’ property. Such a construction made the right to use and connect reasonably effective. Both the old drain and the alternative drain were within the definition of service-conducting installations and both had been in existence at the date of the 2003 conveyance. The claimants were therefore entitled to connect the drains on the bungalow site to the alternative drain on the first and second defendants’ property. (2) The definition of the service-conducting installations could not be affected by a plan to which that definition did not refer and that had been attached to the conveyance for particular purposes, such as defining the boundaries of the property. Nor could the vendor’s intentions at the time as to drainage be used to restrict the clear words of the conveyance.
The following cases are referred to in this report.
Jones v Pritchard [1908] 1 Ch 630; [1908-11] All ER Rep 81; 24 TLR 309
Martin v Childs [2002] EWCA Civ 283
Taylor v British Legal Life Assurance Co Ltd [1925] 1 Ch 395
Trailfinders Ltd v Razuki [1988] 2 EGLR 46; [1988] 30 EG 59, Ch
This was the trial of a preliminary issue in proceedings by the claimants, David and Jacqueline Dixon, against the defendants, Ian and Patricia Hodgson and William and Margaret Norgrove, before Recorder Nigel Teare QC (as he then was) for a mandatory injunction to enforce drainage rights.
Andrew Skelly (instructed by Crutes Mounsey, of Carlisle) appeared for the claimants; Andrew Clark (instructed by Cartmel Shepherd, of Carlisle) represented the first and second defendants; the third and fourth defendants did not appear and were not represented.
Giving his decision, Teare J said:
[1] This is the determination of a preliminary issue ordered to be tried by District Judge James on 26 May 2006. The hearing took place on 8 September at Carlisle County Court. There was also listed to be heard an application for an interim mandatory injunction but after argument had been completed on the preliminary issue there was insufficient time left to complete argument on the injunction application. Moreover, counsel for the claimants indicated that if he succeeded on the preliminary issue, the application for an interim mandatory injunction might well fall away. Accordingly, that application was adjourned pending determination of the preliminary issue.
[2] The claimants are Mr David Dixon and Mrs Jacqueline Dixon, who purchased a property, which may be described as the bungalow site, on 21 October 2003 from Mr and Mrs Brierley. The first and second defendants are Mr Ian Hodgson and Mrs Patricia Hodgson, who purchased an adjacent property known as The Arches from Mr and Mrs Brierley on 16 October 2003. There is a third property known as Green Farm that is adjacent to The Arches and has been owned by the third and fourth defendants, Mr William Norgrove and Mrs Margaret Norgrove, since 29 October 1999. The latter are directly involved in the application for an interim injunction but are not directly involved in the preliminary issue. In this judgment, I shall refer to the first and second defendants as the defendants.
[3] The preliminary issue concerns the true construction of a right reserved for the benefit of the bungalow site when Mr and Mrs Brierley sold The Arches to the defendants. Before setting out the terms in which the right is described, it is necessary to say a little more about Green Farm, The Arches and the bungalow site. Before Mr and Mrs Brierley sold The Arches to the defendants, they had commenced but not completed the construction of a bungalow on the bungalow site. It is common ground that, at the date of the conveyance of The Arches to the defendants, The Arches had the benefit of two drains that led to the |page:8| main sewer. It is convenient to refer to these drains as the old drain and the alternative drain. The old drain had been constructed 70-100 years ago and ran from the bungalow site through the land on which The Arches and Green Farm had been built to the main sewer. Mr Dixon has stated that he bought the bungalow site from Mr and Mrs Brierley on the understanding that it was served by the old drain. The alternative drain ran from a point on The Arches property site remote from the bungalow site to the main sewer without crossing Green Farm.
[4] It appears that the defendants have blocked the old drain at the site of a manhole on The Arches property. There is a dispute about this, which is the subject of the interim injunction application. It also appears that Mr and Mrs Norgrove (the third and fourth defendants) have blocked the old drain where it passes through Green Farm. That is also the subject of the interim injunction application.
[5] The conveyance of The Arches to the defendants provided that the following rights were excepted and reserved:
13.4 Rights EXCEPTED AND RESERVED to the transferor and the owners and occupiers for the time being of the Retained Land and for the benefit of each and every part thereof:
(a) A right of way at all times and for all usual and reasonable purposes connected with the use of the Retained Land as a private dwelling with or without vehicles over the Shared Access save that during the course of construction of any dwellinghouse on the Retained Land contractors vehicles necessary and usual for the said construction shall be allowed to pass and repass over the Shared Access between the hours of 7.00am to 7.00pm Monday to Friday only.
(b) The right to use and connect to the Service Conducting Installations in on under or over the Property.
(c) The right at all reasonable times (upon due notice being given except in emergency) to enter on to such parts of the Property as may be necessary for the purposes of :
i. Exercising the rights granted by this Transfer.
ii. Inspecting maintaining repairing or renewing all Service Conducting Installations serving the Property whether exclusively or in common with the Property.
iii. Inspecting maintaining repairing or renewing the Retained Land the building located on it and its boundary structures where this cannot be done without having to gain access on to the Property SUBJECT TO the Transferor causing as little damage as possible and forthwith making good any damage caused to the reasonable satisfaction of the Transferee or paying compensation in lieu.
[6] The retained land and the property were respectively the bungalow site and The Arches and were identified by reference to a plan annexed to the conveyance. I was told that the plan was in fact a copy of a plan that had been used by Mr and Mrs Brierley to obtain planning permission for the bungalow site. It contained notes relating to the proposed drainage runs (and other matters) that were of obvious relevance to an application for planning permission but that were not referred to in the conveyance. The service-conducting installations were defined as follows:
13.1 Service Conducting Installations means sewers drains water courses water pipes channels pipes gutters downspouts wires cables and other service conducting media existing or coming into existence within the perpetuity period.
[7] The claimants say that the right to “use and connect to the Service Conducting Installations in on under or over the Property” entitles them to lay a pipe across The Arches property to the alternative drain. The defendants do not accept this. They point out that to lay such a pipe will require the access drive and courtyard of The Arches to be dug up.
[8] The claimants’ argument is simple. They say that the ordinary and natural meaning of a right to use and connect is that the beneficiary of that right (the owner of the dominant land) may construct such “connecting media” as are necessary to enable a connection to be made between a drain on The Arches and the bungalow site. If the right to use and connect did not extend to the construction of “connecting media” such as a pipe, the right to use and connect would be ineffective.
[9] The defendants’ argument was more complex. It was said that the right to use and connect, properly construed in its context and having regard to the surrounding circumstances, did not entitle the claimants to lay a new pipe across The Arches property to the alternative drain. The right to use and connect permitted the claimants to use and connect to the old drain. That was what was intended at the date of the conveyance. Reliance was placed upon three authorities.
[10] My approach to the construction of the right to use and connect is as follows. The scope or meaning of that right is to be determined by having regard to the ordinary and natural meaning of the words used in their context. The right is to be construed in such a way as to make it reasonably effective (see Jones v Pritchard [1908] 1 Ch 630, at p638) and having regard to the circumstances existing at the time of the conveyance and known to the parties or within their reasonable contemplation: see Martin v Childs [2002] EWCA Civ 283, in [28].
[11] At the date of the conveyance, the construction of the bungalow had commenced. The bungalow was, when completed, to be used as a private dwelling. In order to be used as such, it obviously required to have drains. These matters must have been known to the parties to the conveyance of The Arches.
[12] The first claimant, Mr Dixon, states that the proposed dwelling had already been connected to the old drain when he bought the bungalow site on 21 October 2003. I was not shown any evidence that indicated whether this work had been done by 16 October 2003, the date of the conveyance of The Arches, although it might have been. The first defendant, Mr Hodgson, states that the old drain is not used by The Arches. I infer that the Arches uses the alternative drain.
[13] Both the old and the alternative drain are within the definition of service-conducting installations and both were in existence at the date of the conveyance of The Arches.
[14] The ordinary and natural meaning of a right to use and connect to service-conducting installations that are in, on, under or over The Arches, which right is reserved for the benefit of the bungalow site on which a dwelling in need of drain was to be constructed, is that the owner of the bungalow site may do what is necessary to connect the drains on the bungalow site with drains on The Arches property that connect to the main sewer. Such a construction makes the right to use and connect reasonably effective. A pipe or drain under The Arches property is an obvious device or medium by which a drain on the bungalow site may be connected to a drain on The Arches property. Of course, the owner of the bungalow site must, pursuant to clause 13.4 of the conveyance, cause as little damage as possible and make good any such damage or pay compensation in lieu. (There was a suggestion in the skeleton argument of counsel for the defendants that this proviso, by reason of its position in the text, applied only to the right in clause 13.4(c)(iii), but this was not pursued in oral argument and the better and more sensible view is that it applies to all the rights in clause 13.4(c).)
[15] The argument advanced on behalf of the defendants (that no such pipe or drain is permitted by the right to use and connect) has the necessary consequence that the only drain that can be used and connected to are those that happen to be right on the border of the bungalow site and The Arches property so that there is no need to construct a pipe or drain on The Arches property. This seems to me to be an unjustified restriction on the wide words defining service conducting installations as including drains “in on under or over” The Arches property. Those are wide words that do not allow a limitation of the definition to those drains that reach the boundary of the two properties. The defendants’ argument does not make the right to use and connect to service-conducting installations reasonably effective.
[16] Counsel for the defendants relied upon a notation on the plan annexed to the conveyance that provided: “Connect new dwelling drainage runs into existing manhole.” That notation was adjacent to the line of the old drain. It was submitted that this showed that the intention of the parties to the conveyance was that the bungalow site was to be connected to the old drain.
[17] I do not consider that this is a legitimate use of the plan. The plan is annexed to the conveyance but is referred to for particular purposes, for example indicating the boundaries of “The Property” and “The Retained Land”. The definition of “Service Conducting |page:9| Installations” does not refer to the plan. The notation in question was made for the purposes of obtaining planning permission and probably indicates the intentions of Mr and Mrs Brierley at that time.
[18] The intentions of the parties to the conveyance with regard to matters dealt with in the conveyance are to be assessed objectively by reference to the words that they have used in the conveyance. The words used by the parties in clause 13.4 of the conveyance entitle the owners of the bungalow to use and connect to the drains on The Arches property, of which, at the date of the conveyance, there were two the old drain and the alternative drain. The fact that Mr and Mrs Brierley intended to connect the drains on the bungalow site to the old drain and, let it be assumed, that the defendants understood that to be the intention, cannot cause the clear words of clause 13.4 to be restricted, in so far as drains are concerned, to the old drain. Their intentions can be ascertained objectively only from the words that they have used in the conveyance concerning the right to use and connect to service-conducting installations.
[19] Counsel for the defendants also relied upon three authorities. It is necessary to deal with each of them, but my conclusion, having reviewed each of them, is that none of them obliges me to reach the conclusion that the right to use and connect in the conveyance must be construed in such a way as does not permit the claimants to connect to the alternative drain by laying a pipe or drain under The Arches property to that drain.
[20] The first authority was Taylor v British Legal Life Assurance Co Ltd [1925] 1 Ch 395. This case concerned a lease of premises in Knightsbridge that contained a reservation “excepting and reserving unto the lessors and the person or persons for the time being occupying the other parts of the said building the passage of gas, water and other pipes and electric wires through the demised premises and the free running of water and soil in and through the pipes connected with the demised premises”. The plaintiff was a hotel proprietor who took a lease of part of the premises (the second and mezzanine floors) in order to extend her hotel premises, which were adjacent, by adding eight new bedrooms. The water service to her additional premises was to be brought through a party wall and the waste water and soil were to be carried away by pipes through the first floor (occupied by the defendant) into the drainage system beneath the building. When eight soil pipes and eight bath-water pipes were constructed inside the defendant’s premises, the defendant cut them, with the result that the additional hotel rooms could not be used. The question at issue was whether the plaintiff had a right to construct such pipes in the defendant’s premises. The Court of Appeal held that she had no such right. Pollock MR said, at p292:
It appears to me that, if the words are properly and reasonably construed, as there was an existing system of pipes and wires to which the reservation could apply, they do not apply or extend to any new system of pipes. Clause 8 might give a right to enter and do repairs to existing pipes, but it would not be appropriate to future pipes.
[21] In the instant case, the question is whether a right to use and connect to existing drains entitles the dominant owner to lay a (new) pipe or drain from his property to connect to an existing drain on the servient property. There is nothing in the decision or reasoning in Taylor that dictates a negative answer to that question. The court in Taylor did not consider the meaning of a right to use and connect or, in particular, whether such a right permitted the dominant owner to lay a (new) pipe or drain from his property to connect to an existing drain on the servient property. Matters might well have been different had the claimants wished to lay a new drain across The Arches to the main sewer without connecting to an existing drain on The Arches.
[22] The second authority was Trailfinders Ltd v Razuki [1988] 2 EGLR 46. This case concerned the lease of premises in Earl’s Court Road. The lessors had the benefit of a reserved right to “the free and uninterrupted running and passage of water, soil, gas and electric current from other buildings and lands of the landlord’s… through the channels, sewers, drains, water courses, pipes, wires and other conduits which are now, or may hereafter during the term hereby granted be in, under or over the said demised premises”. The lessors had installed computer terminals in certain of their properties and wished to run computer cables across the demised premises to those computers. The issue was whether they had the right to do so. It was held, at p47G, per Judge Finlay QC, that they did not have the right to lay:
novel cables that is, cables not replacing any previously existing but of a new kind in a new position, and not replacing anything hitherto used for the passage of electric current from the buildings of the landlord through the demised premises.
[23] As in Taylor, the court did not consider the meaning of a right to use and connect or, in particular, whether such a right permitted the dominant owner to lay a (new) pipe or drain from his property to connect to an existing drain on the servient property. By contrast, in the instant case, this court is concerned with the question of whether a right to use and connect to existing drains entitles the dominant owner to lay a (new) pipe or drain from his property to connect to an existing drain on the servient property. There is nothing in the decision or reasoning in Taylor that dictates a negative answer to that question.
[24] The third case was Martin. It concerned two adjoining properties that shared a water supply. A water main served a storage vessel south-east of one property, the farm. From there, a one inch black pipe ran to the farm and then to the other property, a house. Use made of the water supply by the farm affected the water supply to the house. The owners of the house wished to overcome the problem by laying a new pipe from their property across the other property “to connect with the black pipe at a point between the storage vessel and the farm buildings.” They said that they were entitled to do so because they had the benefit of a right “to run water electricity and other services through any pipes cables wires or other channels or other channels or conductors (the Conduits) which may at any time during the period of Eighty years from the date hereof be in or under or over the Retained Land and a right to enter onto so much as shall be reasonably necessary of the Retained Land for the purpose of installing repairing renewing maintaining cleansing and inspecting the Conduits and to connect into the Conduits for the purposes of obtaining any such services”. It was held by the Court of Appeal that the owners of the house had no right to lay the desired pipe.
[25] Emphasis was placed in argument upon the word “install”, which, it was said, included a right to install new pipes on a new route across the servient land, which was confirmed by the reference to connecting into the conduits. That argument did not succeed.
[26] Pill LJ, in [12], held that the principal right was the right “to run” services through conduits on the retained land and the right in the second part of the clause was only to ensure enjoyment of that right.
A right to install a conduit over a route different from those taken by existing conduits on the land, or subsequently positioned by the owners of the retained land, is not included.
He accepted, however, that the word “install” contemplated the introduction of new conduits that may be required to enable the right to services to be enjoyed. The word “install” did not permit the installation of a “completely new system”.
[27] Mummery LJ said, in [26], that:
So far as water is concerned, there were pipes already in position in the land and water was running through them. The easement was clearly in respect of running water through those pipes and not through any other pipes.
In [27], he said that:
the word “installing” could more appropriately refer in the context to the provision of other services where there was not, at the date of the conveyance, an existing pipe, cable, wire or other channel. It does not, in my view, confer the right to alter the position or size of the existing pipes for the running of water.
Hale LJ agreed.
[28] It was argued that the decision in Martin leads to the conclusion in the instant case that the right to use and connect cannot include a right to lay a new pipe over The Arches to connect with the alternative |page:10| drain. I do not accept that the decision has that effect. First, the right to use and connect to the service-conducting installations is one of two principal rights conferred by clause 13.4 of the conveyance; the other is the right of way over the shared access. The right to enter upon The Arches is subsidiary to those rights in the sense that it is granted for purposes connected with the principal rights. Thus, the terms of the rights reserved can be distinguished from the terms of the rights granted in Martin. In the instant case, the right to connect is one of the principal rights whereas in Martin the right to connect is not one of the principal rights. It follows that the decision in Martin cannot determine the construction of the rights reserved in the present case. Second, it is not clear from the recital of the facts in [2] of Pill LJ’s judgment whether the proposed new pipe was intended to connect with the black pipe at a point on the land occupied by the farm or at a point beyond that land. In the present case, the question is whether the claimants can run a new pipe to connect with the alternative drain on The Arches property. It is possible that, in Martin, the new pipe was to run across the farm land and connect with the black pipe at a point not on the land occupied by the farm but at a point beyond that land, “at a point between the storage vessel and the farm buildings”.
[29] I have concluded therefore that the decision and reasoning does not prevent the court from construing the right to use and connect reserved by the conveyance in the manner that I have described in [14] of this judgment.
[30] I shall therefore determine the preliminary issue by deciding that the claimants are entitled to connect the drains on the bungalow site to the alternative drain on The Arches property. I shall ask counsel to agree the terms of a formal order giving effect to my ruling together with what I understand will be an agreed order as to the costs of this preliminary issue.
Preliminary issue determined in favour of claimants.
