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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mitchell v Potter & Anor [2005] EWCA Civ 88 (20 January 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/88.html Cite as: [2005] EWCA Civ 88 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HIS HONOUR JUDGE OVEREND)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE JACOB
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JOHN HENRY MITCHELL | Claimant/Respondent | |
-v- | ||
YVONNE RUTH POTTER | First Defendant/First Appellant | |
ALEXANDER WILLIAM STUART JANES | Second Defendant/Second Appellant |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR A EATON HART (instructed by Stones of Okehampton, Devon) appeared on behalf of the Appellants
MR G ADAMS (instructed by Stephens & Scown of Exeter) appeared on behalf of the Respondent
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Crown Copyright ©
"(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.
"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."
"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."
"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."
"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."
"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."
"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."
"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.
Order: Appeal dismissed with the costs in a sum to be reduced from the sub-total of £6,041.20 by £475.00.