Peter Gosling & Anor. v Daniel Bradbury & Anor.

An easement to take water by means of a specified pump carries ancillary rights reasonably necessary for its exercise, including the uninterrupted passage of electricity required to operate that pump. Such ancillary rights must themselves be capable of existing as easements and therefore impose only negative obligations on the servient owner. They do not require the servient owner to arrange or maintain the utility supply, although wrongful interference with a negative easement may justify a later order requiring positive steps to undo its consequences. A party cannot generally raise on appeal a factual issue not argued or determined below, particularly where it requires new evidence.

The respondents, trustees of the will trust of Dennis Anstey, owned the dominant land, Rashwood Lodge. The appellants owned the neighbouring servient land, Ford Farm. A 1982 conveyance reserved a right to take water from a borehole by means of a pump and pipes on Ford Farm.

After the appellants cut off the electricity supply to the pump, the respondents sought declarations and injunctive relief. District Judge Shorthose declared that the water easement included ancillary rights concerning the passage of electricity and associated access and infrastructure, and that the appellants’ conduct constituted unlawful interference. The appeal challenged the necessity, nature, validity and effect of those rights.

The appeal was dismissed.

1. Necessity. The express easement was a right to take water by means of the pump. The relevant question was whether electricity was necessary to operate that pump, not whether water might reach the land by some alternative method. The possibility of another power source could not defeat necessity, since that reasoning would mean that no particular power source could ever be necessary.
2. Negative character of the ancillary rights. An easement carries ancillary rights reasonably necessary for its exercise. The ancillary rights here required the servient owners to tolerate the passage of electricity, the use or installation of infrastructure, and associated access. They imposed no positive obligation to provide or maintain wiring or arrange an electricity supply. The distinction between a right to the supply of a utility and a right to its uninterrupted passage was material.
3. Benefit to the dominant land. The argument that arsenic contamination meant that the water easement no longer benefited Rashwood Lodge was not open on appeal. It had not been pursued at trial and would require further factual and expert evidence. In any event, the requirement that an easement accommodate the dominant land concerns the nature of the right, rather than necessarily requiring proof that it continues to provide a particular level of benefit in present circumstances. The judge expressed doubt about any further qualitative or quantitative requirement, without deciding the point.
4. Interference and new evidence. The finding that the appellants had wrongfully interrupted the electricity supply was a finding of fact made at trial. Untested post-judgment evidence did not displace it, and the principles in Ladd v Marshall did not permit its admission on appeal.
5. The question whether later remedial relief might require positive action to reverse the consequences of wrongful interference remained open and was not determined on this appeal.

• High Court (Chancery Division): District Judge Shorthose delivered judgment on 6 November 2020, declaring that the water easement included ancillary electricity and access rights and that the appellants had unlawfully interfered with them.
• High Court (Chancery Division): Mr Justice Zacaroli dismissed the appeal on 6 February 2023.