Mitchell v Potter & Anor

J U D G M E N T

1. LORD JUSTICE JONATHAN PARKER: This appeal raises a question of construction of a grant of water rights. The appellants, Miss Potter and Mr Janes (the defendants in the action), are the freehold owners of a property at South Tawton, Okehampton, Devon consisting of a bungalow and some 16 acres of surrounding land known as Stonecross ("Stonecross"). The respondent, Mr Mitchell (the claimant in the action), is the owner of some 90 acres of adjoining farmland lying below, and to the north of, Stonecross (I will call Mr Mitchell's land "the farmland"). He is also the owner (jointly with his wife) of the farmhouse situated on the farmland. To avoid confusion, I will refer hereafter to Mr Mitchell as "the claimant" and to Miss Potter and Mr Janes together as "the defendants".

2. Prior to September 1986 both Stonecross and the farmland formed part of a farm called Addiscott Farm, which was owned by Mr and Mrs Holman. By two Conveyances dated 29 September 1986 Mr and Mrs Holman conveyed the farmland to the claimant and the farmhouse situated on the farmland to the claimant and his wife. On 28 October 1986 they conveyed Stonecross to Miss Potter and a Mr Ewings. Subsequently, Stonecross was conveyed into the names of the defendants.

3. Situated on Stonecross is a concrete reservoir which is filled from a spring. From that reservoir a single pipe leads downhill (that is to say northwards) across the boundary of Stonecross and on to the farmland. Water from the reservoir flows through this pipe by force of gravity and forms a source of supply to the farmland. There are also one or more pipes leading off from the main pipe and providing a supply of water from the reservoir to Stonecross itself. That was also the position on the ground as at 29 September 1986 when the two conveyances to which I have referred were made.

4. Those two Conveyances are, in all material respects, in identical terms. For convenience therefore I will refer to the conveyance of the farmland to the claimant. By clause 1 of that Conveyance ("the September 1986 Conveyance") Mr and Mrs Holman conveyed the farmland to the claimant together with the following rights:

"(i) Full right and liberty for the purchaser and his successors in title to take water from the reservoir situated in field O.S. number 2404 on the said adjoining land to the south of the property in common with the vendors and their successors in title as owners thereof.

(ii) The right to convey the same through the pipeline now laid from the said reservoir to the said property and to draw from the said reservoir such an amount of water as may be reasonably required for domestic and farm purposes.

(iii) The right to enter upon pass along and break up the land adjoining the said pipeline for the purposes of cleansing repairing and replacing or maintaining the said pipeline and for no other purposes whatsoever doing thereby as little damage as possible to the said pipeline and paying full compensation for any damage caused ..... "

There are further rights in relation to the construction of a new pipeline to the detail of which I need not refer.

5. Clause 2 of the September 1986 Conveyance contains covenants by the vendors, Mr and Mrs Holman, for themselves and their successors in title, not to pollute the water supply and to repair and maintain the reservoir and the pipeline.

6. By the Conveyance dated 28 October 1986 Mr and Mrs Holman conveyed Stonecross to Miss Potter and Mr Ewings subject to the rights granted by the two Conveyances dated 29 September 1986.

7. In the action, which is brought in the Exeter County Court, the claimant asserts that by virtue of the September 1986 Conveyance he is entitled to draw from the reservoir such an amount of water as is reasonably required for his domestic and farm purposes as owner of the farmland, and he seeks declarations to that effect. He also alleges that the defendants have unlawfully interfered with that right in a number of respects, and he seeks injunctive relief and damages. By their Defence, the defendants assert that the claimant's right to draw water from the reservoir is limited to "the residue of water after the defendants have abstracted" - I think it must be - "[water for] their reasonable use".

8. On 10 January 2004 District Judge Harvey directed the hearing of a preliminary issue in the following terms:

"2 ..... Whether on the true construction of the conveyance dated 29 September 1986 the claimant (i) is entitled to draw from the reservoir such an amount of water as may be reasonably required for domestic and farm purposes before the defendants are entitled to draw any water from the reservoir or (ii) is only entitled to draw from the reservoir such an amount of water as may be reasonably required for domestic and farm purposes after the defendants have drawn such an amount of water for their reasonable use or (iii) is entitled to draw such other amount of water as the court shall think fit."

9. The preliminary issue was heard by Deputy District Judge Battell on 22 April 2004. By his order of that date he declared that the water supply from the spring and the reservoir is shared between the parties; that the claimant is limited by the terms of his grant to such an amount of water as is reasonably required for domestic and farm purposes; and that neither the claimant nor the defendants are entitled to first call on the supply of water.

10. In paragraphs 8 and 9 of his judgment, the Deputy District Judge said:

" 8 What would seem to me to be within the mind of any conveyancer at that time, bearing in mind, as I say, that it is a limited resource, was that the resource should not be abused. Therefore it would be quite in order and to be expected that there would be a limitation - or there may be a limitation - attaching to the right to use the supply. The supply was, as is said in the general right, to be used in common with the vendors. But as I say, I interpret (ii) as by way of restriction and that therefore the supply was only for the purposes for which water is to be used, that is for domestic and farm purposes, and that it was such an amount as was reasonably required for that purpose. It is a shared supply and the words 'in common' makes that clear.

9 This means therefore that the supply is not to be shut off to either property and what may come through at any particular time may be limited, of course, to what the other is doing, but that there is still a supply there and available. I do not find that either the claimant or the defendants have first call on the particular supply."

The Deputy District Judge expressed his conclusion in paragraph 12 of his judgment as follows:

"I find, therefore, that the water supply from the spring and reservoir is shared; that the claimant is limited by the terms of his grant to such an amount as is reasonably required for domestic and farm purposes and I find that neither is entitled to first call on the supply."

11. The claimant appealed and his appeal was heard by His Honour Judge Overend. By his order dated 29 July 2004, the judge allowed the appeal and made declarations in the following terms:

"That the claimant is entitled to take water from the reservoir situated at the point marked 'SP' on the plan lodged and marked 'A' in common with the defendants and to convey the same through the pipeline laid from the reservoir to the farm along the route marked for the purposes of identification only coloured blue on the plan and to draw from the reservoir such an amount of water as may be reasonably required for domestic and farm purposes.

That the defendants are entitled to draw the residue of water in the reservoir after the claimant has taken such amounts as he reasonably requires for domestic and farm purposes."

12. The defendants applied to this court for permission for a second appeal. On 11 November 2004 Lord Justice Chadwick granted such permission. In giving his reasons for granting permission he said:

"I am satisfied that an appeal would raise an important point of principle - that is to say, the relative rights of the uphill and downhill landowners to water from a natural source under a grant, the form of which is in common use."

13. Before the judge, Mr Guy Adams (for the claimant, the appellant before the judge) submitted that the rights in question were profits à prendre, as opposed to easements, on the basis that the water in question is contained in a reservoir and the right is a right to take it from the reservoir via the pipe. He accordingly sought to rely on authorities relating to profit à prendre.

14. For the defendants (the respondents before the judge), Mr Andrew Eaton Hart relied on the decision of this court in Beauchamp v Frome Rural District Council [1938] 1 AER 595. The situation on the ground in that case was not unlike the situation in the instant case, in that there was a spring from which a pipe led downhill, with pipes leading off it at various points to different properties. All the land in question was originally in the common ownership of Sir John Horner. In 1923 he sold off the farmland at, so to speak, the end of the pipe; and that land subsequently became vested in the plaintiffs. By the Conveyance, he granted the purchasers of that land the right "as now enjoyed in common with others having the like right" to the supply of water from the spring, but reserving to himself, his heirs and assigns "an easement and right for a line of water pipes". That was a reference to the pipes situated, as it were, upstream of the plaintiffs' land.

15. In 1934, by which time Sir John Horner had died, his widow sold the pipes lying above the plaintiffs' land and the water rights relating to them to the defendant council. As a result of certain alterations made by the defendant council to that system of pipes, the supply of water to the plaintiffs' land was reduced. The plaintiffs claimed injunctive relief, on the basis that their rights to water from the spring had been infringed. The central issue in the action was as to the nature and extent of those rights, as granted to the plaintiffs' predecessors under the 1924 Conveyance.

16. At first instance, Farwell J held that, on its true construction, the grant did not extend to preventing the supply of water being diminished, whether by tapping the pipes or by any other means. The Court of Appeal reversed that decision. The only judgment was given by Sir Wilfred Greene MR (with whom Clauson LJ and Luxmoore J agreed). After setting out the relevant terms of the grant, the Master of the Rolls said (at page 597 D-G):

"As a pure matter of construction - and the first thing that has to be done is to construe the grant, and to construe it in relation to the facts as existing at the time - it seems to me clear beyond the possibility of doubt that the right conferred by the words which I have read is a right to the grantees to receive by means of the [big] ¾ in. pipe all the water required at their farm, subject to this, that they could get only what was left after the persons entitled to draw down the existing branch pipes had taken what they wanted. In other words, it was a grant of the residue, of what should reach them after the water had been taken by the persons entitled to take water from those branches. That, it seems to me, is the minimum to which they were entitled. What the extent of that water might be would, of course, vary. It would vary in accordance with the amount of water coming from the spring and with the amount of water taken from time to time by the persons entitled to draw water through the branches, but that the right was intended to be a real right, and was in fact a valuable right, is beyond the possibility of doubt."

The Master of the Rolls accordingly concluded at page 598 G-H:

"Accordingly, the plaintiffs are entitled to complain of any subtraction of water from the water supply other than a subtraction through the existing pipes, or pipes of the same diameter substituted for them."

17. Before the judge Mr Eaton Hart submitted (as he submits to us) that Beauchamp v Frome is of direct assistance in this case, albeit that the wording of the grant in that case is not precisely the same as the wording of the grant in the instant case. He relies in particular on the words "in common with others having a like right", pointing out that the same words are to be found in sub-paragraph 1 of the September 1986 Conveyance. He submits that those words give rise to a clear inference of an intention that there should be a sharing of the water from time to time available. He submitted to the judge, as he submits to us, that the construction contended for by the claimant in the instant case gives rise to serious practical difficulties so far as the defendants are concerned in that they cannot know what the residue of the water is at any particular time, and if they abstract water they may inevitably run the risk of facing a claim for an infringement of the claimant's right.

18. Mr Adams responded to that argument by saying that no practical difficulties had been encountered for many years, and that the reality was that it was open to the vendors to reserve rights over the pipes situated at Stonecross (as the vendor did in Beauchamp v Frome ) had they wished to do so. He submitted that in any event the task of the court in the instant case is simply to construe the grant in the September 1986 Conveyance; and that Beauchamp v Frome is of no assistance to the court in undertaking that task.

19. I can now turn to the judge's judgment. In paragraph 9 of his judgment the judge, having discussed the various authorities, concluded that the rights granted by the September 1986 Conveyance were rights in the nature of a profit à prendre rather than an easement. The judge turned to the construction of the grant, and in the concluding paragraph of his judgment he expressed his conclusion as its true construction as follows:

"As a matter of construction, I conclude that the grant was of a right to draw such amount of water as may be reasonably required for domestic and farm purposes assuming the reservoir has sufficient water for those purposes and as a matter of construction I conclude that the vendor merely retained the right to the residue after the claimant's rights had been exercised. It follows on that construction that Deputy District Judge Patel's [( sic )] construction was wrong as a matter of law and the appeal is allowed."

20. On this appeal, Mr Eaton Hart has substantially rehearsed the arguments he addressed to the judge, but with this qualification that he and Mr Adams accept - plainly correctly, in my judgment - that the issue as to whether the rights are properly described as rights amounting to a profit à prendre or an easement is not an issue which is of any assistance in determining what the nature of that right was by construing the grant contained in the September 1986 Conveyance. Mr Eaton Hart relies, once again, on Beauchamp v Frome for the proposition that (and I quote from paragraph 4 of his written skeleton):

"Where an easement is granted for a water supply through a pipe in common with others having the same right, the 'downhill' water user is only entitled to the residue of the water after all the 'uphill' users have drawn water for their needs."

He points out that in the instant case, in contrast to Beauchamp v Frome , there could have been no reservation (in a strict conveyancing sense) of rights over Stonecross in favour of the vendors since the vendors were retaining Stonecross on the occasion of the September 1986 Conveyance. He relies strongly, as he did before the judge, on the words in the September 1986 Conveyance - "in common with the vendors and their successors in title as owner thereof". He submits that this plainly indicates an intention that the supply of water in the reservoir should be shared and that that intention would be frustrated if the construction contended for by the claimant were to be adopted.

21. In his written skeleton argument Mr Adams accepts, as he did before the judge, that the extent of the rights granted by the September 1986 Conveyance is a question of construction. He submits that the authorities on profits à prendre are of no assistance and he submits that the judge answered the question of construction correctly.

22. This is indeed a pure question of construction, just as the question which rose in Beauchamp v Frome was, as the Master of the Rolls described it, "a pure question of construction". As such, it does not, in my judgment, give rise to any point of general principle. In making that observation, I have in mind what Lord Justice Chadwick said when granting permission for a second appeal. But at the same time I bear in mind that the flow of water through the pipe which leads to the farmland is not a natural watercourse; both the pipe and the reservoir are artificial constructions and are therefore susceptible to grant. It follows, in my judgment, that given that there is no authority in which the terms of the grant were identical with those of the grant in the September 1986 Conveyance, there is no assistance to be gained in the instant case from references to authority. In particular, the words "in common with the vendors and their successors in title as owner thereof" have to be construed in the context of the entirety of the grant. It is to noted that in Beauchamp v Frome there was no equivalent provision to that to be found in paragraph 2 of the grant of the September 1986 Conveyance which expressly grants a right to draw from the reservoir "such an amount of water as may reasonably be required for domestic and farm purposes".

23. In my judgment, the words "in common with the vendors and their successors in title" do no more than indicate that the claimant's rights in relation to water from time to time in the reservoir were non-exclusive.

24. The critical provision, to my mind, is the reference in sub-paragraph (ii) to the right which I have just quoted. I cannot accept Mr Eaton Hart's submission that sub-paragraph (ii) is concerned merely with the mechanics of abstracting water from the reservoir and with the route by which that water is to be abstracted. In my judgment, that provision gives the claimant a clear right, as against the defendants (but subject always, of course, to the sufficiency of the supply of water to the reservoir from the spring), to abstract as much water from the reservoir as is reasonably required for his domestic and farm purposes. Nor, in my judgment, is it correct to construe that provision (as the Deputy District Judge did) as merely a limit or maximum. Had the draftsman of the September 1986 Conveyance intended to provide simply for a limit or a maximum, one would have expected him to do so in terms, for example by including such words as "no more than" the specified amount.

25. I recognise that the existence of such a right creates serious practical difficulties for the defendants, but in my judgment that is, unfortunately, the inevitable consequence of the grant of a right in such terms. At all events, the existence of practical difficulties cannot, in my judgment, justify a departure from what I would regard as the clear meaning of the relevant provisions of the September 1986 Conveyance.

26. I would only add that of course we are not concerned in addressing the preliminary issue with any question as to the reasonableness of the user of water by the claimant. If this litigation is to proceed - a prospect which I would, for myself, view with regret - then that may be an issue to be resolved at a later stage. At this stage, as I say, we are concerned only with the resolution of the preliminary issue.

27. For the reasons I have given I would dismiss this appeal.

28. LORD JUSTICE JACOB: I agree.

29. LORD JUSTICE SEDLEY: I also agree.

Order: Appeal dismissed with the costs in a sum to be reduced from the sub-total of £6,041.20 by £475.00.