Easement — Water supply — Appellants having right under conveyance to run services across respondents’ land — Appellants attempting to install new water conduit — Judge awarding respondents damages for trespass — Whether installation of conduit on different route to that permitted by conveyance — Whether judge erring in approach to construction of conveyance — Appeal dismissed
The appellants owned a house (the house) in County Durham. By virtue of a 1992 conveyance, they had the benefit of an easement to run water and other services through “any… Conduits which may… be in or under or over” the respondents’ land (the farm). The conveyance stated that the appellants had the right to enter onto the farm, where necessary, “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”.
The water supply to the house was via a pipe that crossed the farm and served the respondents before continuing to the house. The supply that reached the house was frequently interrupted, and sometimes polluted. The appellants attempted to solve the problem by laying a new pipe that would lead directly to the house. However, the respondents brought proceedings for trespass, contending that the installation of a new pipe was not permitted by the conveyance. The judge held that the conveyance was not intended to permit either party to affect the existing priority in the use of the water (the priority issue), and that the word “install” did not give the appellants the right to install a completely new system. He accordingly awarded damages for trespass.
On appeal, the appellants contended that: (i) the judge had erred in allowing an irrelevant factor, namely the priority issue, to affect his approach to construction; and (ii) the new pipe was permitted by the reference in the conveyance to “installing” conduits, since that word necessarily meant more than repairing or renewing existing conduits. The respondents submitted that: (i) the right of “installing” was ancillary to the principal right of running services across the farm; (ii) it was limited to what was necessary to protect that principal right; and (iii) accordingly, it did not justify the installation of a new water conduit where one already existed.
Held: The appeal was dismissed.
The word “installing” had a different meaning from repairing or renewing, and contemplated the introduction of new conduits. However, new conduits would only be permitted by the conveyance where they were needed to enable the appellants to enjoy a new service that they did not already have, such as cable television. The appellants’ principal right was to run services across the respondents’ land through conduits, and the other activities listed in the conveyance were ancillary to that right. The word “installing” was limited by its ancillary function, so that the installation of conduits was permitted only so far as necessary to ensure and protect the principal right. Since conduits for water supply to the appellants already existed, and water ran through them, the easement was limited to those conduits, and did not permit the installation of another conduit on a completely different route. Although the judge might have erred in taking account of the priority of water supply, which was an irrelevant factor, he had correctly found that the word “installing” did not permit the installation of a completely new system such as the new pipe proposed by the appellants.
Nicola Allan (instructed by Hodgson & Angus, of Stanhope) appeared for the appellants; Edward Denehan (instructed by Latimer Hinks, of Darlington) appeared for the respondents.
Sally Dobson, barrister
