Rance v Elvin

An easement for the free and uninterrupted passage of water through pipes is distinct from a right to a supply of water. It requires the servient owner to allow water reaching the pipes to pass and not physically interfere with it. It does not require that owner to arrange or pay for the supply. The distinction, applied through Schwann v. Cotton (1916) 2 Ch. 459, preserves the easement even where the source lies outside both properties. A servient owner may decline to pay the supplier, but must not obstruct water otherwise entering the system.

The owner of Chantry Farm House claimed an easement under a 1977 conveyance granting the passage of water through pipes situated on adjoining land. The adjoining land was later conveyed to Malcway, while the existing metered supply continued. Malcway paid the water supplier for all water passing through the meter.

Mr Justice Nicholls dismissed the claim, treating the asserted right as imposing a positive obligation on the servient owner to pay for water consumed at Chantry Farm House. The appeal concerned whether the conveyance granted a right to a supply of water or only a right to the passage of water entering the pipes. A further argument concerning statutory liability for water charges was raised for the first time on appeal.

1. Disposition. Browne-Wilkinson LJ delivered the leading judgment. Griffiths LJ agreed, and Sir George Waller agreed that the appeal should be allowed. The court declared that an easement was appurtenant to Chantry Farm House for the passage through the pipes of any water entering them on, in or under Malcway’s land. It gave liberty to apply for an injunction and awarded the appellant costs here and below, including the County Court costs taxed on Scale 3.
2. Nature of the easement. The conveyance granted a right to the passage of water, not a right to require anyone to secure a supply. The two rights were legally distinct. The easement imposed only a negative burden: Malcway had to permit water reaching the private system to pass through the pipes and had to refrain from physically interrupting that passage. Fracturing the pipes or turning off an available supply could constitute actionable interference.
3. Malcway was not obliged to arrange or pay for water supplied through the meter. If it stopped paying and the Water Company consequently cut off the supply, the easement would not require Malcway to restore it. The existence of a meter and the arrangements made for obtaining water did not defeat or enlarge the easement.
4. The court applied the reasoning in Schwann v. Cotton (1916) 2 Ch. 459: the absence of an established right to obtain water from the source did not prevent an easement for passage through the servient property.
5. The court declined to entertain a new argument based on section 30(1) of the Water Act 1973, as amended by the Water Charges Act 1976. The point had not been clearly argued below, further evidence might have been required, and the Water Company might have needed to be joined and would not have been bound by the decision.
6. Obiter payment observations. Browne-Wilkinson LJ considered that a person knowingly using water paid for by the servient owner would in any event be liable in quasi-contract to reimburse the resulting expenditure. Waller expressed the same conclusion as an implied contractual obligation. Those observations did not form part of the easement itself.

1. Court of Appeal (Civil Division) Allowed the appeal, declared the easement, granted liberty to apply for an injunction, and awarded costs here and below.
2. High Court Mr Justice Nicholls dismissed the claim, holding that the asserted right imposed a positive obligation inconsistent with an easement.