Bate & Anor v Affinity Water Ltd

An easement to lay, maintain and use utility pipes may be valid even where the dominant tenement is not expressly identified, provided it can be established by construing the grant and considering admissible extrinsic evidence. Land containing a borehole and pumping equipment may accommodate such an easement, and the undertaking of a statutory utility may itself be capable of being a dominant tenement.

Private easement rights and statutory powers may arise and operate concurrently. Where statutory preconditions are satisfied, the undertaker’s intention to exercise the statutory power, or its knowledge of that power, is immaterial. For prescription, user must be nec vi, nec clam, nec precario. A mistake by the servient owner about the existence of the right does not necessarily prevent user being as of right.

The claimants owned land at 25–27 Potter Street, Bishops Stortford. A water main had been laid beneath the property in 1948, following a 1947 deed granting rights to lay, maintain and use it. In 2005 the defendant installed a service pipe, stop tap and meter beneath the rear part of the property to supply adjoining premises.

The claimants alleged continuing trespass and sought declaratory and injunctive relief, damages and interest. The defendant relied on the 1947 deed, prescription and statutory powers under the Public Health Act 1936 and the Water Industry Act 1991. The central issues were whether the deed created an easement, whether any easement arose by prescription, and whether the relevant works were authorised by statute.

1. Disposition. The claim was dismissed. The water main was protected by a valid express easement, the defendant’s predecessor had also exercised statutory powers in laying and maintaining it, and the 2005 installation was authorised by statutory powers.
2. Express easement. The essential characteristics of an easement included a dominant and servient tenement, accommodation of the dominant tenement, separate ownership, and capability of forming the subject matter of a grant. The dominant tenement need not be expressly identified in the deed. It could be identified by construction of the deed and admissible evidence of the circumstances known to the parties.
3. The relevant dominant tenement was the land containing the trial borehole and pumping equipment. The water main transported water extracted from that land and therefore accommodated it in its business use. The court also approved the reasoning in Re Salvin’s Indenture [1938] 2 All ER 498: in an appropriate case the whole undertaking of a water undertaker, comprising corporeal and incorporeal hereditaments, could constitute the dominant tenement.
4. Prescription. If the express easement had failed, a prescriptive easement would have arisen by lost modern grant. User from 1969 was open and without force. The earlier licence granted by the former owner did not bind successors in title, and mere acquiescence by later owners did not amount to a new licence. A mistaken belief by the servient owner that the user was authorised did not prevent it being user as of right.
5. Statutory powers. The statutory right to lay and maintain a water main could coexist with a private easement. Where the statutory conditions were fulfilled, the undertaker’s subjective intention or knowledge was immaterial. The passageway was a “street” under the Public Health Act 1936. The rear court was not necessarily a street, but reasonable notice had in any event been given before the 1948 works.
6. In 2005 the rear area was held to be a “street” under the Water Industry Act 1991, because it was available as a shortcut despite being privately owned and lacking a public right of way. The defendant therefore could install the service pipe, stop tap and meter without prior notice. Alternatively, reasonable notice had been given.
7. The court added that, even if trespass had been established, substantial loss had not been proved. The claim was dismissed.