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 Preliminary issue determined in favour of claimants
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 being constructed. 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 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 only to the old drain.
Held: The preliminary issue was determined in favour of the claimants.
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: Taylor v British Legal Life Assurance Co Ltd [1925] 1 Ch 395 and Martin v Childs [2002] EWCA Civ 283 distinguished. 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 they had existed 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.
Furthermore, 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.
Andrew Skelly (instructed by Crutes Mounsey, of Carlisle) appeared for the claimants; Andrew Clark (instructed by Cartmel Shepherd, of Carlisle) appeared for the first and second defendants; the third and fourth defendants did not appear and were not represented.
Sally Dobson, barrister
