by Martin Davey
This article examines what Slade LJ recently described in Stephens v Anglian Water Authority [7] 3 All ER 379 at p380 as a “short but not unimportant question of law, which can be sufficiently stated as follows: can a person whose land has subsided as a result of the abstraction by his neighbour of water percolating under the neighbour’s land in any circumstances maintain an action against the neighbour for consequential damage?”
The assumed material facts in Stephens were that the defendant water authority had extracted water from the land in close proximity to the plaintiff’s freehold property and that this had caused the collapse of that property. The plaintiff brought an action in negligence in respect of the depreciation in value of her property brought about by the damage. It was not alleged that the water abstracted was flowing in a defined channel either above the ground or underground: it was a case of the abstraction of underground water percolating in undefined channels. This state of affairs was hardly a novel one.
It is not uncommon to find that when percolating water is abstracted from under a person’s land this will cause an outflow of such water from under neighbouring land resulting in subsidence damage to the surface of that land and any buildings thereon. But does this give rise to a claim in negligence where it was reasonably foreseeable that the defendant’s actions would, or were likely to, cause the damage which in fact occurred? The district registrar, whose decision was upheld on appeal by Farquharson J, did not consider that there was any room for liability in negligence and the plaintiff’s claim was struck out as disclosing no cause of action. After hearing argument on the substantive issue, the Court of Appeal gave leave to appeal but dismissed the appeal.
The court considered that the matter was settled by House of Lords authority, thereby confirming the decision of Plowman J in the earlier case of Langbrook Properties Ltd v Surrey County Council [9] 3 All ER 1424 rejecting an action based on allegations of negligence and nuisance on facts which were materially indistinguishable from those of the Stephens case.
The earliest of the relevant House of Lords cases was Chasemore v Richards [1843-60] All ER Rep 77 (see also the earlier case of Acton v Blundell (1843) 12 M&W 324, 152 ER 1223) which did not involve subsidence of the plaintiff’s property by removal of support following abstraction of water by the defendant but was concerned with whether the defendants had a right to abstract from their land water percolating underground which had no certain course and no defined limits. This water would otherwise have found its way to a river, the flow of which had worked the plaintiff’s mill for upwards of 60 years.
On appeal from the Court of Exchequer Chamber the House of Lords held that the plaintiff was not able to claim the benefit of the supply to the river in so far as it came from water percolating under the defendant’s land. The court said that it was settled law that a landowner can claim as a natural right the benefit of water flowing from neighbouring property where it does so in a defined channel, whether on the surface or underground. However, it was also settled law that this principle did not apply to water, either draining off the surface of the land or percolating through underground strata, which has no certain course and no defined limit but oozes through the soil in every direction in which the rain penetrates.
Lord Chelmsford justified this exception on the basis of such a water supply being of a very uncertain description. He also emphasised the practical consequences if such a right were recognised (p82):
In the present case the water which ultimately finds its way to the River Wandle is strained through the soil of several thousand acres. Are the most distant landowners, as well as the adjacent ones, to be bound at their peril to take care to use their lands so as not to interrupt the oozing of the water through the soil to a greater extent than shall be necessary for their own wants.
This pragmatic approach was also favoured by a number of other judges in that case. Lord Cranworth (at p84) observed that:
if the arguments of the appellant were adopted, the consequences would be that every well that ever was sunk would have given rise, or might give rise to an action.
Of the five judges in the House of Lords only Lord Wensleydale favoured a qualification of the defendant’s right of abstraction. He fully agreed that a right to abstract should be recognised because otherwise it would be impossible for the owner of the superjacent land to utilise these waters. Furthermore, he considered it to be in the public interest to permit landowners to exploit and make available the natural advantages of their land despite the fact that in the case of water abstraction this will inevitably, given that the precise course and direction of such water will seldom be known accurately beforehand, interfere with the subterranean supplies to a neighbour. Nevertheless he did not consider that such a right of abstraction should be unfettered and went on to hold (at p87) that:
. . . according to the rule of reason and law–sic utere tuo et non alienum laedas–it seems right to hold that he ought to exercise his right in a reasonable manner, with as little injury to his neighbour’s rights as may be.
Lord Wensleydale’s attempt to qualify the right to abstract was further decisively rejected in the later House of Lords decision in Bradford Corporation v Pickles [5] AC 587, where the court held that the defendant’s motives in diverting or appropriating percolating water under his land so that it did not reach neighbouring land were competely immaterial.
A natural right to support?
Of course both of the House of Lords cases referred to above involved a landowner abstracting from his land water which would otherwise have reached the plaintiff’s land. They did not involve interference with support to the plaintiff’s land caused by abstraction of water by the defendant from under his own land.
However, in the years between these two decisions there had been a case in the Court of Exchequer Chamber which involved this very issue and where Chasemore v Richards had been applied so as to deny the plaintiff any remedy for subsidence damage brought about in this way. The case is Popplewell v Hodkinson (1869) LR 4 Exch 248. The court held that although every landowner has a natural right (protected by the law of tort–ie nuisance) not to have the support of his neighbour’s land removed, this does not apply to support which is dependent upon water percolating at large under the defendant’s land. The only exception referred to in the judgment of the court, which was delivered by Cockburn CJ, was where it would be in derogation of grant.
Thus if an owner of adjoining lands disposes of one plot for specific purposes he (and any successor in title) can be prevented from doing anything with the retained land which might have the effect of rendering the land granted less fit for the special purpose in question than it might otherwise have been. (The same principle would apply where the lands were initially disposed of to different persons rather than one plot being retained by the grantor.) This exception was found to be inapplicable on the facts of Poppewell v Hodkinson.
A remedy in negligence?
Cockburn CJ concluded his judgment by stating (at p253) that “. . . the judgment of the House of Lords in Elliott v North Eastern Railway Co (1863) 10 HLC 333; 32 LJ Ch 402 entirely supports the view we take of this case”. In that case a landowner sold land to the respondent company for the purpose of erecting a bridge. He reserved certain underground minerals including a flooded mine under the land sold off. That surface land was supported partly by pillars left in the mine and partly by the flood water which had flowed into the shaft and the space vacated by worked coal seams. When a subsequent lessee of the mine workings proposed to drain off the water the House of Lords upheld the decision of the trial judge, Page-Wood V-C (1860) 1 J & H 145; 70 ER 697, that the defendant lessee was entitled to drain the shaft and passages in question notwithstanding that this might result in damage to the railway. However, it seems clear from the report of this case that the defendant had the right to drain the water in question because it had flowed into the mine workings accidentally and that the owner of the surface land could not assume that at some time in the future the mine would not be drained and reworked. Although this point was made by counsel for the plaintiff in Popplewell v Hodkinson the observation of Cockburn CJ in that case quoted above would suggest that no importance was attached to it in the later case.
The decision in Elliott v North Eastern Railway Co is to be contrasted with that in the Scottish case of Balds v The Alloa Colliery Co (1854) 16 Dun 1 (Ct of Sess), where it was held on materially indistinguishable facts that the lessor and lessee of the mineral rights were liable for a withdrawal of support from the plaintiff’s surface land by removal of subjacent floodwater in worked coal seams where proper precautions had not been taken to prevent such damage. The duty not to remove support stemmed from an implied obligation in the original contract of sale to the plaintiff not to render the land sold unfit for the purpose for which it was sold. In view of the fact that the lessor and lessee of the mineral rights were held liable, it being stated that the lessee under a lease to exploit the minerals could be in no better position than the lessor, it would seem safe to treat this decision as being one of non-derogation from grant and thus reconcilable at least with Popplewell v Hodkinson. Consequently, it does not necessarily provide support for the proposition advanced by the English Law Commission (in Working Paper no 36(1971) at p34) that English and Scottish law diverge on the issue of whether or not there is a natural right of support for land from subterranean water.
In the light of the above authorities, it would seem at first sight that the plaintiff in Stephens v Anglian Water Authority had no prospect of success. However, she sought to distinguish the 19th-century cases on the basis that they had turned on the question of natural rights and not on the issue of negligence, which had not been pleaded. As we have seen, negligence and nuisance had been pleaded without success in the Langbrook Properties case, but she was inviting the Court of Appeal to overrule that decision. The Court of Appeal declined to take this course. The court, having observed that negligence was not dealt with in Chasemore v Richards despite evidence on which such a claim might have been based, considered that Bradford Corporation v Pickles presented the plaintiff with an insurmountable obstacle. As Slade LJ stated in Stephens at p384:
if a landowner has the right to abstract water from beneath his land, whatever be his motive or intention (even with the intention of causing his neighbour injury), it cannot, in our judgment be said that he owes a duty to his neighbour to take care in doing it.
This was so, irrespective of the consequences and despite a general broadening in the basis of negligence liability in the present century. Indeed, in Home Office v Dorset Yacht Co Ltd [0] AC 1004 at p1060, Lord Diplock when listing several examples of instances where there is no liability under the English law of tort, even though the probability of damage may be anticipated, observed that:
one may damage one’s neighbour’s land by intercepting the flow of percolating water to it even though the interception is of no advantage to oneself . . . .
The Court of Appeal did stress that the claim was brought in negligence only, although it is clear that a claim in nuisance would have met the same fate as in the Langbrook Properties case, (supra) where Plowman J, having rejected a claim based on negligence, observed at p1440 that:
A claim in nuisance can fare no better, since nuisance involves an unlawful interference with a man’s use or enjoyment of land . . . But here the interference was not unlawful, as the authorities referred to show.
Easement of support
The Court of Appeal in Stephens also emphasised that the plaintiff had not alleged any easement of support or otherwise. Indeed such a right was not claimed in any of the above cases. Would it have met with any success had it been pleaded in Stephens? There does not appear to be any reported case which has recognised the existence of support of land by water (as opposed to support by other land or material substance other than water) as a natural right. Nor is there any case which recognises it as capable of being acquired as a valid easement. Thus it is stated with confidence in Clerk and Lindsell on Torts (15th ed) p1177 (citing Popplewell v Hodkinson, Langbrook Properties Ltd v Surrey CC and English v Metropolitan Water Board [7] 1 KB 588) that:
There is no right to have land supported by water, and such a right cannot be acquired by prescription. Therefore one who by draining his own land withdraws from an adjoining owner the support of water therefore lying beneath the land of that owner, and thereby causes the surface of that land to subside, is not liable for the damage inflicted.
How far do the authorities cited in support of the proposition actually sustain such a claim? In Popplewell v Hodkinson the court rejected a claim to a natural right of support from water and did not discuss, or it would appear hear any argument on, the question of the acquisition by prescription of such a right as an easement. Nevertheless, Cockburn CJ did say (at p253) that a right to prevent a neighbour draining in such a way that damage was caused to the plaintiff’s property “can only arise out of the rule that a man cannot derogate from his own grant . . .”, which impliedly rules out an easement of support from water. The other cases cited concerned actions based on nuisance and/or negligence and did not deal with the issue of prescription. There is some judicial support for recognition of an easement of support from water, but this is only by way of obiter dicta which, as we shall see, arguably rest on questionable foundations.
The earliest criticism of Popplewell v Hodkinson in so far as that case lays down any absolute prohibition on rights of support for land by water is to be found in Jordeson v Sutton Southcotes & Drypool Gas Co [9] 2 Ch 217. The defendants had withdrawn from under their land a stratum of water-loaded sand (“running silt”) which led to the withdrawal of large quantities of the same type of material from under the plaintiff’s land. This caused a subsidence of the surface with consequent structural damage to the plaintiff’s houses. The Court of Appeal, Vaughan Williams LJ dissenting, held the defendants liable in nuisance (on the basis of unlawful interference with the plaintiff’s natural right of support for his land). Popplewell v Hodkinson was distinguished on the basis that what was withdrawn in the Jordeson case was wet sand and not purely a stratum of water. Nevertheless, in the course of the judgments delivered by the Court of Appeal the earlier case did not escape comment. Having made the finding of fact referred to above, Lindley MR said (at p239):
In this view of the evidence it is unnecessary for me to decide whether if the defendants had done nothing more than pump underground water from their own land and thereby let down the plaintiff’s houses, an action could have been maintained against them. Popplewell v Hodkinson looks like and has generally been regarded as an authority that no action will lie in such a case. But I am not satisfied that the broad question can be solved by that or any other decision. The question involves very important considerations. Two conflicting rights have to be satisfied–namely the right to support and the right to pump water. It is not necessary to decide which is to give way to the other. I leave the question where it is. I shall assume in the defendant’s favour that an action will not lie for damage caused by pumping water only.
Rigby LJ agreed that the defendants were liable but (at p244) said of Popplewell v Hodkinson:
The court recognised the possibility of such a right as that claimed by the plaintiff being conferred by grant express or implied, which in my judgment involves the conclusion that when support to buildings from water is enjoyed for twenty years, the right to it becomes absolute.
Rigby LJ’s dicta have received support, albeit again only by way of obiter dicta, in the decision of the Court of Appeal in Brace v South East Regional Housing Association Ltd [4] EGD 961; (1984) 270 EG 1286. The defendants had demolished a house which before demolition had offered support to the plaintiff’s house. This meant that the moisture in the clay under the plaintiff’s house dried out causing the clay to shrink, with consequential subsidence damage to the plaintiff’s house. The Court of Appeal affirmed the High Court decision that the defendants had by removing support caused the subsequent damage and were therefore liable in nuisance for interference with the plaintiff’s easement of support. The court rejected an argument that the case was simply one of damage caused by drawing off of water and therefore not actionable.[1]
In discussing the rule in Popplewell v Hodkinson, Eveleigh LJ was prepared to assume for the purposes of the Brace case that there is no prescriptive right to support from water alone and that where a right of support has been acquired against a neighbour’s land that neighbour is not liable for a weakening of that support attributable only to the withdrawal of water.[2] Nevertheless, he also quoted with approval the dicta of Rigby LJ discussed above and asserted that whether or not a right of support from water can be prescribed for is an open matter. Dillon LJ also considered the matter to be open and at p1289 expressed agreement with the dicta of Rigby LJ.
The proposition suggested by Rigby LJ in Jordeson that an easement for support by water is capable of being acquired by grant (including prescription) is quoted with approval by the Law Commission in their Published Working Paper no 36 Appurtenant Rights (1971), para 68. However, at this point a note of caution has to be entered. It has been observed by Paul Jackson, the author of The Law of Easements and Profits (at p 170), that Rigby LJ’s dicta as to a possible prescriptive right to support by water stem from a misreading of Cockburn CJ’s judgment in Popplewell v Hodkinson. It will be recalled that Rigby LJ’s view was based upon his belief that in Popplewell. “The court recognised the possibility of such a right as that claimed by the plaintiff being conferred by grant express or implied . . . .” However, what the court in fact said was ((1869) LR 4 Exch at p 293):
Such an obligation can only arise out of the rule that a man cannot derogate from his own grant, and as in this grant, there is in our opinion no such obligation express or implied, our judgment must be for the defendant.
This reference to the doctrine of non-derogation of grant does not imply that such a right is capable of subsisting as a valid easement. Indeed there are instances of rights capable of being acquired under the non-derogation from grant principle which are not recognised as capable of being easements (eg a right to a flow of free air not flowing through any defined aperture or channel). Thus the possibility of such a right being recognised as an easement depends upon whether a court would be prepared to say that it had all the characteristics of a valid easement. Available evidence suggests that they would not. In Phipps v Pears [5] 1 QB 76 at p 83 Lord Denning MR said:
. . . a negative easement . . . must be looked at with caution. Because the law has been chary of creating any new negative easements.
One reason why this may be so is the difficulty in establishing the necessary elements of a prescriptive right. An essential element of such a claim is that user by the dominant owner must be “as of right” and this is not satisfied where the user was secret. It is not secret if it is “of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment”: Union Lighterage Co v London Graving Dock Co [2] 2 Ch 557 at p 571. Support by subterranean water may not be easy to detect and for this reason to permit its acquisition by prescription is arguably not acceptable.
Conclusion
By way of summary it can be said that where damage is caused to a person’s property solely by another landowner abstracting from his land water percolating in undefined channels under that land no claim in negligence or nuisance will lie. Furthermore, it is extremely doubtful whether a right to support of land or buildings on land by water can be acquired as a valid easement.
The conclusion that a plaintiff who has suffered damage to his property through removal of adjoining subterranean water support, in circumstances where the defendant could have avoided such damage by the exercise of reasonable care, is without a remedy was obviously reached with some reluctance by Plowman J in the Langbrook Properties case (at p 1440). Slade LJ hinted at a similar concern in the Stephens case at p 384 where, after concluding that a landowner can abstract subterranean water flowing in undefined channels beneath his land regardless of the consequences, he stated: “Whether or not this state of the law is satisfactory is not for us to say.” The Law Commission in their Working Paper no 36 at p 34 clearly thought that the law is most unsatisfactory:
Our present view is that the refusal to recognise support by water as a natural incident of ownership is anomalous; and, it may be added, considerable difficulty may be experienced in borderline cases in attempting to draw a distinction beween “water” and “silt” which, in the present context, appears to have no scientific basis.
Hence the Law Commission (at p 66) proposed that all land should be burdened with an obligation
not to do anything which will withdraw support from any other land or from any building, structure, or erection which has been placed on it;[3]
Such a reform would of course extend liability significantly. It would place an absolute liability on the person whose actions have caused the damage and would not depend on negligence. It would also extend beyond the case of adjoining owners, but as the Law Commission stated (at p 34):
we appreciate that since such damage may occur at a distance from the operations causing it the risk of withdrawing support by water may not be easily measured (or foreseen); but in many cases, the damage will have arisen in consequence of the defendant’s profit making activities and we think he should accept the potential liability as a normal (and perhaps insurable) commercial risk.[4]
It is submitted that there is an unanswerable case for reform of the present law. The price of protection for a landowner’s abstracting water from his own land is too high and places an unacceptable risk on innocent landowners who suffer damage as a consequence. It is difficult not to agree with the view expressed in 1977 by the Ontario Court of Appeal that:
To conclude that those who abstract percolating water have an unbridled licence to wreak havoc on their neighbours would be harsh and entirely out of keeping with the law of torts as it exists today.[5]
The most appropriate instruments of reform are, on the one hand, the imposition of a strict liability as proposed by the Law Commission for the policy reasons to which they refer and, on the other hand, a solution based on negligence. The former solution has the merit of certainty and is modelled on the natural right of support which land enjoys from adjoining land. However, support which arises as a result of subjacent water is peculiar. As the Law Commission acknowledge, it can be removed as a result of actions some distance away. In these circumstances it seems unjust to impose liability in the absence of fault and this may suggest that a more appropriate solution would be to impose a duty of care on abstractors of water to avoid foreseeable harm to the property of other landowners. (Large-scale abstractors may be held to have foreseen the risk of harm even where the damaged property was not contiguous to that on which the abstraction complained of took place.)
It may be considered that this is a more equitable solution to a resolution of the conflicting rights of support and abstraction than a total reverse of the existing principle of immunity. It is submitted that Popplewell v Hodkinson bedevilled the rational development of the law in this area by wrongly extending the authorities on rights of ownership of percolating water and the right to abstract to the separate issue of removing support from land by the abstraction of water. Developments in the law of negligence since that time suggest that it would not be inappropriate to impose a duty of care on a defendant abstractor to take reasonable care to avoid acts which one could reasonably foresee would cause injury to other landowners.
It is a pity that the Court of Appeal did not feel able to grasp the nettle in Stephens v Anglian Water Authority and remove the unjust anomaly of immunity which exists at present where support is removed from land by the abstraction of water.
References
[1] See also the Australian case of Todorovic v McWatt [1972] Tas SR9, where a landowner who excavated his land thereby causing a neighbour’s adjoining land to dry out and subside was held liable for withdrawal of support.
[2] See further, English v Metropolitan Water Board [1907] 1 KB 588 at p 602, where Lord Alverstone CJ stated: “. . . notwithstanding the comments upon it by Rigby LJ in Jordeson’s case, . . . it seems to me that Popplewell v Hodkinson does decide that if the case is . . . one of . . . the support of water, no action can be maintained.” See also Gill v Westlake [1910] AC 197.
[3] This obligation now applies in Queensland, Australia. See “A Report of the [Queensland] Law Reform Commission on a Bill to Consolidate, Amend and Reform the Law relating to Conveyancing, Property and Contract etc” (1973) and s 179 of the Property Law Act 1974-1978 (Queensland).
[4] For a discussion of how economic analysis might affect the legal response see Bruce A Ackerman Economic Foundations of Property Law.
[5] Pugliese et al v National Capital Commission et al (1977) 79 DLR (3d) 592 at p 615 per Howland JA. The court concluded that in so far as the plaintiffs’ land was supported by water they had a right not to have that right interfered with in so far as that interference was a result of negligence or nuisance. See also Penno v Government of Manitoba (1975) 64 DLR (38) 256 (Man CA).
Martin Davey is a lecturer in law at the University of Manchester.
