Parties both obtaining water from borehole on appellant’s land — Respondent granted declaration that both parties should share maintenance costs — Whether declaration unlawful as binding on successors in title — Appeal allowed
The appellant and the respondent owned adjoining properties. The respondent had an easement to draw water from a borehole on the appellant’s land, and both properties received their water supply in that way. The respondent sought a declaration that the cost of using the borehole, including any repairs to pumping equipment, should be shared among the users. The appellant resisted such a declaration on the ground that although the respondent, as the owner of the dominant tenement, had a right to draw water, the appellant, as the owner of the servient tenement, was not obliged to contribute towards the respondent’s cost of his obtaining that benefit.
The recorder granted a declaration that the cost of supplying water to and through the borehole, including the cost of repairs and the maintenance of both the borehole and any water-pumping equipment, was to be borne by users rateably, by volume. He held that the right of the appellant to a contribution towards those costs arose by reason of a quasi-contractual or restitutionary right. He further determined a dispute over the boundary between the parties’ properties.
On appeal against that decision, the appellant contended that the declaration should not have been made because: (i) it concerned only the future rights of the parties, and there was no evidence upon which the judge could be satisfied that, in the case of all future expenditure relating to water supply, the facts would support a quasi-contractual claim for a contribution; or, alternatively, (ii) the method of calculating the amount of any contribution was unworkable and unfair. However, the parties agreed between themselves that, for the time being, any costs should be split 70:30.
Held: The appeal was allowed.
The judge’s decision to grant the declaration could not be justified on any principle of benefit and burden: Duke of Westminster v Guild [1983] 2 EGLR 37 considered. Accordingly, it could be justified only if it fulfilled the requirements of quasi-contract. The court would need to be able to imply a request from one party to the other to incur any relevant expense. That might be possible in particular circumstances, but it could not be said that it would be the case for any future expenses regardless of the facts: Rance v Elvin (1985) 50 P&CR 9 distinguished. There was no necessary correlation between the cost of repairs and the amount of water use. Thus, the declaration, which, by its terms, would bind the parties’ successors in title, could not stand. The decision on the boundary dispute would also be overturned and an alternative boundary fixed.
Timothy Dutton (instructed by Druces & Attlee) appeared for the appellant; Graham Sinclair (instructed by Cole & Co, of Norwich) appeared for the respondent.
Sally Dobson, barrister
