Gosling and others v Bradbury and another

Easement – Water pump – Electricity supply – Appellants switching off electricity supply to respondents’ land – Whether appellants interfering with easement – Judge declaring respondents entitled to access to water supply from borehole and granting injunction restraining appellants from interfering with supply – Appellants appealing – Whether judge erring in law – Appeal dismissed The respondents were the current owners of a property known as Rashwood Lodge. They claimed the benefit of rights relating to the supply of electricity to operate a pump used to extract water from a borehole on the neighbouring property, Ford Farm. Those rights were claimed as ancillary to an easement (the water easement) reserved by a conveyance dated 22 June 1982, when Ford Farm was sold to the appellants’ predecessor in title. Prior to 1971, both properties were under single ownership. Pursuant to a conveyance of Ford Farm dated 10 November 1971, the right to take water from the borehole on Ford Farm, via a pump located at the site of the borehole, was reserved to the owners of Rashwood Lodge, on terms that required the owner of Rashwood Lodge to pay 50% of the maintenance of all pipes and apparatus in respect of the pump and water supply. A conveyance of Rashwood Lodge, a week later, included similar rights for the owner to take water from the borehole via the pump on Ford Farm. The owner was obliged to maintain the apparatus and pay 50% of any maintenance costs incurred by Ford Farm and 50% of any electricity charges incurred in the use of the pump. The appellants purchased Ford Farm in 2018.  Disputes arose concerning the respondents’ rights under the water easement. In April 2019, the appellants cut off the supply of electricity to the pump. The respondents sought a declaration that they were entitled to access the water supply from the borehole and an injunction restraining the appellants from interfering with that supply. The district judge found in favour of the respondents. The appellants appealed. Held: The appeal was dismissed. (1) It was, in general, a requirement of an easement that it merely required the servient landowner to suffer something to be done on his land, and did not impose any positive obligation on the servient landowner. A right to the uninterrupted passage of water that might come into pipes on the servient land clearly satisfied that requirement: such a right was contrasted with the right to a supply of water (which would not satisfy that requirement, as it would impose an obligation on the owner of the servient land to pay for the water supplied): Rance v Elvin (1985) 50 P & CR 9 considered. The grant of an easement carried with it the grant of such ancillary rights as were reasonably necessary to its exercise or enjoyment. Where the use of a thing was granted, everything was granted by which the grantee might have and enjoy such use. The ancillary right arose because it was necessary for the enjoyment of the right expressly granted: see Gale on Easements, 20th edition, at 1-92. Any ancillary right had itself to be capable of subsisting as an easement. It therefore had to satisfy the requirement of imposing only negative obligations on the owner of the servient land: William Old International Ltd v Arya [2009] EWHC 599 (Ch); [2009] 2 EGLR 141 considered. (2) While the judge did not expressly conclude that the supply of electricity to the pump was necessary for the enjoyment of the water easement, he identified necessity as the test; noted that the respondents’ case was that there was a necessity here because the land at Rashwood Lodge was uphill from the borehole and water could only be taken from the borehole to the respondents’ land by the use of a pump; and concluded that the passage of electricity was an ancillary easement capable of existing as a legal easement. It was clear that the judge had the requirement of necessity well in mind and concluded that it was satisfied. It was not relevant whether the use of a pump was necessary for the water from the borehole to reach the respondents’ land, but only whether a supply of electricity was necessary to power the pump. The express right granted by the water easement was to “take water [from the borehole] by means of the pump”. It was clear that it was essential, in order to take water by means of the pump in situ at the time of the 1982 conveyance, that electricity was available to operate it. (3) A covenant which granted rights of passage of “water soil gas electricity and telephone communications” over the servient land imposed only negative obligations and thus created a valid legal easement. There was no positive obligation on the servient landowner to ensure that electricity or water reached his own land. Instead, the right to an uninterrupted passage of electricity (or water) imposed a negative obligation on the servient landowner to take no positive step which prevented the passage of electricity onto the servient land as well its subsequent passage through the servient land to the dominant land: Duffy v Lamb (1997) 75 P & CR 364; [1997] PLSCS 96 considered. The ancillary right, as declared to exist in the present case by the judge, was the right to enjoy the passage of electricity across the appellants’ land, including the right for the respondents to arrange for the supply of electricity onto Ford Farm, the right to make use of infrastructure already in situ, or to install their own infrastructure and apparatus, and associated rights of access. No positive obligations were imposed on the appellants or their successors in title; the rights merely required them to suffer things to be done on Ford Farm. (4) The right granted by an easement was inherently precarious, as the owner of the servient land could, without constituting an actionable interference, cease paying for the water or electricity supply. If it did so, the owner of the dominant land could make its own arrangements with the water company. If the owner of the servient land had wrongly interfered with a negative easement, the court might require it to take some positive action to undo that which it did via its wrongful interference. In particular, where the ancillary rights included the right to come on to the servient land to inspect the equipment and effect replacements and repairs, the remedy might encompass positive action to reverse the consequences of its failure to comply with the negative obligations in the easement. Michael Paget (instructed by Direct Access) appeared for the appellants; Tony Watkin (instructed by Higgs LLP) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Gosling and others v Bradbury and another