Nuisance — Whether the plaintiffs’ obstruction of easement of drainage the cause of the nuisance complained of
In 1978 the
common owner of ‘The Chantry’, East Village, Crediton, Devon, conveyed the
house, garden and northern part of some further land on the other side of a
public road, including the septic tank to which the house drained, to the
defendants. The conveyance did not contain any express grant of an easement of
drainage through drains from the septic tank to a soakaway on the southern part
of the further land. In 1979 the common owner conveyed the southern part of the
further land (which became known as ‘Applewood’) to the plaintiffs. On
purchasing the land, the plaintiffs commenced building a bungalow and garage
and, on severing the drain from the defendants’ septic tank, requested them to
cease using the system. Faced with the plaintiffs’ building works which
obstructed their drainage, the defendants constructed an alternative system in
1982 and sought the costs of the same from the plaintiffs. At the trial of the
action Judge Neville awarded the defendants the full amount of their claim of
£2,358.69. From 1984 the plaintiffs complained of problems to their land
arising from the operation of the new system and brought the present
proceedings alleging nuisance. In Exeter County Court Judge Sir Jonathan Clarke
dismissed the plaintiffs’ claim. He found that the old sewage system worked
satisfactorily before 1979 and that the steps taken by the defendants in 1982
to provide the alternative system represented a reasonable attempt to solve the
problem. The plaintiffs’ appealed.
drainage system by the plaintiffs which was responsible for the matters
complained of in the present action. In taking the steps they took the
defendants had mitigated their damage and had acted reasonably. There was a
sufficient chain of causation between the plaintiffs’ actions in obstructing
the original drainage and the matters of which they now complained.
The following
case is referred to in this report.
Wheeldon
v Burrows (1879) 12 ChD 31
This was an
appeal by the plaintiffs, Geoffrey Russell Robins and Margaret Anne Robins,
from the decision of Judge Sir Jonathan Clarke in Exeter County Court, when he
dismissed their claim alleging nuisance on the part of the defendants, William
Arthur Tupman and Jean Tupman, in the use of their property.
James Townsend
(instructed by Trump & Partners, of Bristol) appeared for the
appellants/plaintiffs; Michael Brabin (instructed by Stones, of Exeter)
represented the respondents/defendants.
Giving the
first judgment, NOURSE LJ said: This is an appeal from a decision of
Judge Sir Jonathan Clarke given in Exeter County Court on May 1 1991 in a
long-running and most regrettable dispute between owners of adjoining
properties at East Village, Crediton, Devon.
Until 1978 the
properties were in joint ownership. There was a house at the northern end
called ‘The Chantry’ standing to the north-west of a crossroads. It had a
garden and further land to the south-west of the crossroads, on the other side
of the east/west road, stretching down to the south. The general fall of the
garden and further land is to the south-west. At that time sewage and other
effluent from the house passed down a pipe running (with manholes at each end)
under the north/south road across the crossroads until it reached a position to
the east of the garden. There it ran westward at right angles to the road into
a septic tank situated in the garden, from which there was in turn a pipe
running southwest into a soakaway placed on the lower part of the land.
In 1978 the
common owner, a Miss Blenman, conveyed the house, the garden and the northern
part of the further land, including the septic tank but not the soakaway, to
the defendants, Mr William Arthur Tupman and Mrs Jean Tupman. Although the
conveyance did not contain an express grant of an easement of drainage into and
through the soakaway on the southern part of the further land, it is clear that
the conveyance operated to include such a grant by virtue of the rule in Wheeldon
v Burrows (1879) 12 ChD 31. In 1979 Miss Blenman conveyed the
southern part of the further land (now known as ‘Applewood’) to the plaintiffs,
Mr Geoffrey Russell Robins and Mrs Margaret Anne Robins. That conveyance was
not expressed to be subject to the easement of drainage and we are told that it
was not disclosed to the Robins’ solicitors on preliminary inquiries. However,
being a legal easement, it was enforceable against the Applewood land
irrespective of notice.
In his
judgment, Judge Clarke said of the easement:
It is
important to note in this connection that the easement was not confined to the
use of the pipe and to discharge into that soakaway. In the nature of things,
the liquid entering the soakaway would then do just that — soakaway. In other
words, it would then percolate, as water will, through the land, finding its
own level elsewhere. Thus, liquid from ‘The Chantry’ must, after leaving the
soakaway, have spread through what is now ‘Applewood’ land.
The Robins
purchased their land in order to build a bungalow and, to the north, a garage.
Although they knew beforehand of the existence of the easement and, in general
terms, the line of the pipe and the approximate position of the soakaway, they
went ahead with their plans. I take up the story in the words of Judge Clarke:
Mr Robins
excavated without regard, or without sufficient regard, for ‘The Chantry’ drain
pipe and in or about August 1979 Mr Robins cut through that drain pipe. Sewage
effluent flowed out. What was his reaction?
It is, I am afraid, indicative of the plaintiffs attitude to this whole
matter — not ‘I am sorry’ — no. They told the Tupmans to stop using the system.
The effect in mid-August of being deprived of a bath and other facilities of
that kind can be imagined.
To put it
shortly, the plaintiffs went on with their building work. They provided a
temporary drainage system which, as Judge Neville found, failed and, as he
said, was bound to fail within a short time.
Judge
Neville’s part in the story will be explained presently. I should point out
that, although the temporary drainage system failed, that was not until about
17 months later. I return to the story as told by Judge Clarke:
By the end of
1981, therefore, the Tupmans were facing a real problem. Their sewage was not
escaping properly. It was backing up. The Robins would do nothing to deal
adequately with the problem, which they and they alone had caused. They were
indeed denying liability at that time and so the Tupmans had to do something
for themselves. What they did, was to take steps to alleviate the problem.
Their easement had been denied, a large garage block, consisting of three
garages and a workshop, had been built, which in length was practically as long
as the Tupmans entire southern boundary. That building has substantial footings
and effectively acts as a dam or barrier to all liquid, whether rain drainage
or any other kind of drainage, coming down the fall of the land from the north.
So, acting as I find on advice, the Tupmans constructed an elaborate system of
drainage designed to operate within the limited confines of their garden. What
they did was to construct a system by which effluent entered a septic tank where
it was allowed to settle. Thereafter, liquid is taken into a pump chamber from
whence it is pumped uphill to the north into a third chamber. From this chamber
the effluent is discharged by gravity into a series of land drain pipes laid
throughout the garden. By and large this works adequately, but there have been
problems.
It appears
from that passage that the judge may have thought that a new septic tank was
installed as part of the new system. That was not, in fact, the case. The
existing septic tank was incorporated into the new system.
The new system
was constructed by Tupmans in the spring 1982. About a year earlier, in April
1981, they had commenced an action for damages against the Robins in Exeter
County Court. Having constructed the new system, the Tupmans sought to charge
the Robins for the costs of its construction and ancillary costs by way of
damages for disturbance of their easement. The Robins’ defence was that the
problem could and should have been solved more cheaply, but that the Tupmans had
refused to discuss it with them and had gone ahead and incurred excessive
costs.
At the trial
of the action on June 23 1982 Judge Neville awarded the Tupmans damages in the
full amount of their claim, namely £2,358.69, including nearly £260 for
clearing the septic tank on 13 occasions between August 30 1979 and March 12
1982, 11 of them in the last 10 months of that period. That shows the scale
which the problem had by then assumed from the Tupmans’ point of view and it no
doubt accounts for their decision to construct the new system. In giving
judgment, Judge Neville said:
I do not
think the new system is an improvement, indeed in a way it will be a nuisance
because it is under their garden now and involves an electric pump, which may
go wrong.
I would add
that not only was it under the Tupmans’ garden but it was, if Judge Clarke’s
description of the operation of the system was correct, also to a lesser extent
under the ground of Applewood. That, then, was the position when Judge Neville
gave his decision in June 1982.
From 1984
onwards the Robins began to complain about problems on their land arising from
the operation of the new system. It is these complaints which form the basis of
the present action started by the Robins in February 1988. First, they complained
that on occasions the sewage from the new system had backed up into the more
southerly of the two manholes in the road and had overflowed. Effluent had run
down the road causing an unpleasant sight and smell; on occasions it had run
from the road into the Robins’ driveway. Judge Clarke had no doubt that that
had, on occasions, happened. Second, the Robins complained that sewage effluent
from the Tupmans’ system was seeping through on to their land and was causing
ponding in an area due west of their garage. Ponding occurred when the water
table was high. The judge had no doubt in finding that it consisted largely of
rainwater, but rainwater which on occasions could well be contaminated to a
slight degree from the effluent discharged into the new system which, owing to
the fall of the land, would in times of heavy rain and a high water table
mingle with the rainwater percolating through the soil and finding its way
downhill to a natural low point. He also noted a subsidiary complaint under the
same head, namely that on occasions, notably in 1984, vegetables grown in the
Applewood garden shrivelled and died as if poisoned. He said that was, happily,
a rare occurrence. He also pointed out that earlier in 1991 the Tupmans had
carried out remedial action at their own significant expense to cure both the
overflowing from the manhole and the ponding on the Applewood land.
Judge Clarke
made two further important findings. First, he found that the old
sewage-dispersal system had worked satisfactorily before 1979. He said that
Judge Neville had also found that as a fact. Our note of the latter’s judgment
does not disclose an express finding to that effect. But I agree with Mr
Brabin, for the Tupmans, that it is implicit in the passage I have quoted from
his judgment. Second, Mr Townsend, for the Robins, accepts that Judge Clarke
effectively found that the steps taken by the Tupmans in 1982 represented a
reasonable attempt to solve the problem for the future.
The essence of
Judge Clarke’s decision was expressed thus:
I have heard
much expert evidence. I am satisfied that while the system installed by the
Tupmans is in general terms adequate, it does at times of heavy rain and a high
water table, cause excess effluent to soak into the ‘Applewood’ land. The
building of the deep physical barrier constituted by the ‘Applewood’ garage
block effectively causes all liquid seepage from ‘The Chantry’, be that
rainwater or a mixture of rainwater and excess sewage effluent, to be diverted
from its original seepage course to the west and so sometimes to puddle at
9.015.
The whole
problem stems from two things. First, the destruction of the original drainage
system and second, the construction of that garage barrier.
To the extent
that the work of alleviation carried out by the Tupmans in 1982 and
subsequently is inadequate, that is, as I find, not negligence nor an
actionable nuisance for which the original tortfeasors have any claim at law.
Both sides are
agreed that the Robins’ claims in this action lie essentially in nuisance. The
main question debated in this court has been that of causation. Mr Townsend
very properly accepts that if, as Judge Clarke held, the problems which have
occurred since 1984 were caused by the wrongs done by the Robins in 1979, their
appeal, however it is put, cannot succeed. If they caused the nuisance, it
cannot have been caused by the Tupmans.
Mr Townsend
submits that by no stretch of the imagination can it be said that the post-1984
problems were caused by the Robins’ wrongdoing in 1979. He says that the
present problems arise entirely because of the Tupmans’ choice of the new
system in 1982. At that time, he submits, the Tupmans had a choice. They could,
in assertion of their easement, have insisted that the old system be
reinstated. They could, had they wished, have applied for an interlocutory
prohibitory injunction in August 1979; and they could also have claimed a
mandatory injunction at the trial in 1982. At that stage they
that case. Instead, they chose to install a system which has proved inadequate.
Because it has proved inadequate, they are themselves liable in nuisance to the
Robins.
Mr Townsend
also questions the judge’s finding that the problem was caused not only by the
destruction of the original drainage system but also by the construction of the
garage barrier. The footings of the garage, which was built over the soakaway,
descend 4ft 6ins into the ground. Mr Townsend maintains that there was no
evidence before the judge on which he could have made his finding as to the
effect of those footings. Although I am not satisfied that there was no such
evidence before the judge, it does not seem to me that that is a point of
importance. I say that because if it was the destruction of the original
drainage system which was responsible for the matters of which the Robins now
complain, that would be enough to defeat their cause of action in nuisance.
I reject Mr
Townsend’s submissions. In my view, there was, as the judge held, a sufficient
chain of causation. I agree with Mr Brabin that the proposition that the
Tupmans had a realistic choice in 1979 cannot be sustained. As I have said,
there was a temporary system which appears to have worked for some 17 months.
Even at that stage it might have been a strong thing for the court to grant an
injunction restraining further building. But whether that be right or wrong, I
think it highly unlikely that a mandatory injunction would have been granted at
trial, bearing in mind that during the 17-month period the Robins’ had gone
ahead and finished building the garage.
So what, then,
could the Tupmans have done and what should they have done? Mr Brabin submits that they did all that they
had to do in order to minimise the amount of the claim against them. I agree.
In technical terms they mitigated their damage. They constructed a new system,
which Judge Neville decided that they had been justified in constructing, a
decision which has been confirmed by the implied finding of Judge Clarke that
they acted reasonably at the time. It is an extraordinary proposition to say
now that the Tupmans ought, in 1982, to have asserted their easement and thus
to have caused the Robins far greater expense and inconvenience than they were
caused by the course which the Tupmans in fact took. It does not lie in the
mouths of the Robins to say that the Tupmans ought to have taken some other
course.
Alternatively,
it is suggested that the Tupmans should have installed a more effective system.
On the evidence before the judge the only practicable alternative would have
been to put in a cesspit. But that would have involved the Tupmans in very
great expense. So, too, would the boring of a hole deep into the ground,
another suggested means of disposing of the effluent. In my view, the Tupmans
were not obliged to adopt either of those courses.
It is true, as
the judge found, that the new system has not been adequate for all occasions. I
am bound to say that the matters complained of, although naturally of very great
irritation and concern to the Robins, did not seem to have been as bad as they
might have been. Whether that be right or wrong, the Tupmans having acted
reasonably in taking the steps which they did take, the matters of which the
Robins now complain cannot have been caused by the Tupmans. In so far as they
have been caused by them in the literal sense they have inevitably been brought
about by the actions of the Robins in 1979 and the steps which the Tupmans were
then forced to take in order to remedy the situation. For these reasons I think
that Judge Clarke’s decision on the question of causation was correct, and that
is enough to dispose of this appeal.
I must mention
two further points. First, Mr Brabin developed a very interesting argument to
the effect that the original easement of drainage over the Robins’ land had
never been abandoned by the Tupmans. He submitted that, if the Tupmans were to
fail on the question of causation, they could nevertheless rely on their
easement as a justification for everything they had done since. The argument
raised some interesting questions. Does the right to deviate apply to an
easement of drainage as it applies to an easement of way? Did the Tupmans increase the burden of the
easement or alter the dominant tenement in such a way as to destroy it? And so on. Those are interesting questions.
Since it is unnecessary to decide them, I prefer not to do so.
Second, the
judge, having held that the easement had not been abandoned, went on to say:
Even if I am
wrong and the easement on the facts has been abandoned, then I would hold ex
turpi causa oritur non actio that the plaintiffs cannot in this court be
heard to complain that their own wrongdoing has set off a chain of events which
now causes them a legal nuisance.
If there is
any part of the judgment of the judge with which I would venture a respectful
disagreement, it is that. It seems that he relied on the maxim ex turpi
causa oritur non actio as support for his decision on the question of
causation. His observations have caused some confusion in this court. His
decision could be, and was, soundly based on causation alone. It was neither
necessary nor appropriate to invoke the maxim as well.
For the
reasons I have given I think that Judge Clarke arrived at an entirely correct
decision. I would dismiss the Robins’ appeal accordingly.
Agreeing, FARQUHARSON
LJ said: It was in September 1979 that the first plaintiff severed the
soakaway pipe of the defendants’ sewage system in the course of digging the
footings for the plaintiffs’ new garage.
The first
plaintiff then constructed a new soakaway close to the boundary of the
defendants’ land. This operated satisfactorily for some 17 months, but in the
end proved to be inadequate to contain the effluent passing through it. It was
in those circumstances that the defendants, under expert advice, constructed a
new disposal system within the confines of The Chantry garden in 1982. This new
system proved to be successful in the main in containing the effluent from The
Chantry, but there had been some percolation on to the plaintiffs’ land at
Applewood, both from The Chantry garden and by way of a manhole in the road
which borders the two properties.
The question
which the court has been considering today is whether the defendants should be
held responsible for the damage caused to the plaintiffs by the seepage of
effluent from The Chantry garden on to Applewood or, on the other hand, whether
the plaintiffs must be held responsible by reason of the first plaintiff’s act
in fracturing the soakaway pipe.
Mr Townsend,
for the plaintiffs, argues that there is a straightforward question of
causation. While he accepts that the problem began with the first plaintiff
breaking the soakaway pipe, the plaintiffs cannot be responsible for the
defective nature of the new system about which they were not consulted. Mr
Townsend submits that in August 1979 it would have been open to the defendants
to have applied for an interlocutory injunction to restrain the plaintiffs from
interfering with their sewage system. Such an application, he says, would have
been likely to succeed had the defendants elected to do so. Instead, the
defendants commissioned the installation of an entirely new system to be
installed within the confines of their own property. By so doing, he argues,
not only did the defendants abandon their easement of effluent disposal through
the original pipe and soakaway but they also exonerated the plaintiffs from any
further responsibility. Accordingly, it is said, any fresh discharge of
effluent from The Chantry to another part of the plaintiffs’ garden is a
nuisance for which the defendants are liable in damages.
It would be a
curious result, in my judgment, if that were the effect of the relevant law. As
the disposal of their effluent appeared to be satisfactory following the
immediate repairs carried out by the plaintiffs there was no need, and indeed
little likelihood of success, for the defendants to apply for an injunction.
The crucial question was, what should be done when those repairs proved
ineffective? By this time the garage,
with its deep footings, was completed. The original soakaway was destroyed.
What, then, were the defendants to do?
Their duty was to act reasonably and to mitigate their damage as best
they could. In the interest of all parties the defendants sought a solution
which would solve the problem without dismantling the garage. That was how the
new disposal system came to be installed and, to a considerable extent, it
appears to have worked.
Such
shortcomings as remained can hardly be ascribed to the defendants when the
judge concluded that they had acted reasonably. In my judgment, the plaintiffs’
original act of destruction remained the effective cause of any shortcomings
for the new system. I, too, would dismiss the appeal on that ground, and in
those circumstances I agree it is unnecessary to consider the question of
whether the easement had been abandoned by the defendants’ installation of the
new system, or whether the easement on a proper construction permitted the
defendants to discharge effluent over parts of the plaintiffs’ garden other
than through the original soakaway, nor whether the suit fails by the
application of the maxim ex turpi causa oritur non actio, as the learned
judge considered.
Appeal
dismissed.
