Mitchell v Potter & Anor

The construction of a grant of water rights depends on the grant read as a whole and in the context of the circumstances existing when it was made. A provision for taking water in common indicates that the right is non-exclusive, but does not itself create an equal or prior right to abstract. An express right to draw the amount reasonably required for domestic and farm purposes confers a substantive right to abstract that amount, subject to sufficient supply. It is not merely a maximum or restriction. Practical difficulties for other users cannot displace clear conveyancing language. A decision concerning differently worded rights and an upstream reservation does not establish a general rule for later grants.

The claimant owned farmland supplied by a reservoir situated on the defendants’ adjoining uphill land. A 1986 conveyance granted him rights to take water from the reservoir, convey it through the existing pipeline and draw such an amount as was reasonably required for domestic and farm purposes. The defendants acquired the adjoining property subject to those rights.

On a preliminary issue, the Deputy District Judge declared that the supply was shared and that neither party had first call. His Honour Judge Overend allowed the claimant’s appeal and declared that the claimant was entitled to draw the amount reasonably required, with the defendants entitled to the residue. The defendants appealed on the construction of the grant. The central issue was whether the claimant’s right was a prior right to draw his reasonable requirements or only a right to the residue after the defendants’ reasonable use.

1. The Court of Appeal, in the judgment of Lord Justice Jonathan Parker, with Lord Justices Jacob and Sedley agreeing, dismissed the appeal. The question was one of construction of the 1986 conveyance. Whether the rights were technically a profit à prendre or an easement did not assist in determining their nature or extent.

2. The reservoir and pipeline were artificial constructions capable of being the subject of a grant. The words providing for the claimant’s rights to be exercised in common with the vendors and their successors indicated that his rights were non-exclusive. Those words had to be construed with the whole grant.

3. The critical provision gave the claimant a clear right, as against the defendants, to abstract from the reservoir as much water as was reasonably required for domestic and farm purposes, subject to the sufficiency of the spring’s supply. The provision was not merely a restriction or maximum. If that had been intended, clearer wording such as a stated prohibition on taking more than the specified amount would have been expected.

4. Beauchamp v Frome Rural District Council [1938] 1 AER 595 did not establish a general rule that a downhill user was limited to the residue. That decision concerned differently worded rights and an express reservation relating to upstream pipes. Its construction could not govern the present grant, which contained an express right to draw the amount reasonably required.

5. Practical difficulties caused to the defendants could not justify departing from the clear meaning of the conveyance. The preliminary issue did not determine whether the claimant’s actual use was reasonable. That question could be addressed at a later stage if the proceedings continued. The appeal was dismissed, with costs reduced from £6,041.20 by £475.

• Court of Appeal (Civil Division): [2005] EWCA Civ 88 — dismissed the defendants’ second appeal and upheld the declarations made below.
• Plymouth County Court: His Honour Judge Overend, 29 July 2004 — allowed the claimant’s appeal from the preliminary issue decision and declared that the defendants were entitled only to the residue after the claimant’s reasonable requirements.
• Plymouth County Court: Deputy District Judge Battell, 22 April 2004 — declared that the supply was shared, that the claimant was limited to water reasonably required for domestic and farm purposes, and that neither party had first call.