Martin & Anor v Childs & Anor

An easement to run services through conduits, coupled with rights to enter land for installing, repairing, renewing, maintaining, cleansing and inspecting them, must be construed in the context of the conveyance and the circumstances known or reasonably contemplated at the time.

The ancillary right to install does not ordinarily authorise the construction of a wholly new system on an entirely different route where existing conduits serve the granted right. Such ancillary powers exist to secure enjoyment of the principal easement. A dispute about interference with the water supply is distinct from the issue of trespass and cannot be determined where permission to appeal is confined to construction.

The parties owned adjoining properties served by a shared water supply. The appellants sought to lay a larger pipe across the respondents’ land, following a new route and connecting to the existing system between the storage vessel and the farm buildings.

The respondents brought proceedings in trespass. The appellants relied on a 1992 conveyance granting rights to run water and other services through conduits in, under or over the retained land, together with rights of entry for specified purposes. His Honour Judge Behrens gave judgment for the respondents and awarded £100 damages. He dismissed the appellants’ counterclaim concerning alleged interference with the water supply and limited permission to appeal to construction of the conveyance.

The central issue was whether the reference to installing conduits permitted the appellants to lay a new pipe on a different route.

1. Appeal dismissed. The conveyance granted a principal right to run water and other services through conduits on the retained land. The rights to enter the land for installing, repairing, renewing, maintaining, cleansing and inspecting the conduits were ancillary to that principal right.
2. The word installing had a meaning distinct from repairing and renewing. It could cover the introduction of a new conduit required for additional services, including services not provided through an existing pipe at the date of the conveyance. It did not, in the circumstances, authorise the appellants to insert a new conduit over an entirely different route to serve the house.
3. The extent of rights granted by a conveyance was to be construed having regard to the circumstances existing at the date of the conveyance and known to, or reasonably contemplated by, the parties. The existing water pipes and the established arrangement for supplying the properties were therefore material. The ancillary entry rights did not extend to laying new water pipes in a different position or of a different dimension.
4. The trial judge’s reference to priorities in the water supply was legally questionable, because the appeal did not turn on priority. Nevertheless, his conclusion that the clause did not permit installation of a completely new system was correct and was not undermined by that reference.
5. Lord Justice Pill expressed doubt about the judge’s approach to the counterclaim. The relevant issue might have been whether the respondents had interfered with rights conferred by the clause, rather than merely whether the appellants had insufficient water. Those observations were obiter and speculative, as the appeal was confined to trespass and construction.

The appeal was dismissed with costs, subject to detailed assessment unless agreed.

• Court of Appeal (Civil Division): Appeal from the decision of His Honour Judge Behrens sitting as a Deputy High Court Judge on 19 January 2001. The appeal was confined to construction of the 1992 conveyance. Appeal dismissed with costs.