Daniel Greatrix, a principal associate solicitor in our property dispute team, successfully secured an order of the court confirming the existence of an Easement and Ancillary Rights to take water from an electrically powered pump, which must include a right to the supply of electricity to that pump.
Our clients property in Droitwich Spa had the benefit of a right reserved by a 1982 conveyance (although technically lost by the principle of ‘unity if seisin’) to take water from a borehole (or natural spring / artesian well) and through pipes on adjoining land (the ‘servient land’), with a right to enter the servient land for the purposes of inspecting, cleansing, repairing and maintaining the spring, pipes and apparatus used in connection with the water supply. The water was used to feed the livestock of our client.
To extract water from the spring, electricity was required but, following a dispute over the rights reserved, shortly after the Servient Land was brought by the defendants, the servient owners cut off the supply of electricity to the pump.
On our application, the county court granted a declaration that the servient land was subject to the reserved rights of the 1982 conveyance (as the existence of those rights were known, being used and would have been obvious on a reasonable inspection, at the point at which the defendants purchased the servient land) and that this must include ancillary rights to enjoy the passage of electricity across the servient land to supply power to the water pump (including rights to make use of existing apparatus and to install new apparatus with cabling, with appropriate rights of access).
These were considered negative obligations (and so could run with the land), as all that was required of the servient owner was not to interfere with the existing supply. The Defendants appealed, but this was dismissed.
Summary
An express easement is granted together with all ancillary and incidental rights reasonably necessary to make the grant effective. So, for example, a right of drainage should, by necessity, carry with it a right to enter the servient land for such things as repair and maintenance, or clearing, when necessary.
Any ancillary right must itself, however, be capable of subsisting as an easement. It must therefore possess the fundamental characteristics of an easement, which requires (amongst other things) an imposition of only negative obligations on the owner of the servient land. In this case, the Defendants tried to argue that the ancillary right would impose a positive obligation on them to maintain a supply of electricity.
It was clear however from the County Court’s declaration that the ancillary right was not an obligation on the servient owner to maintain a supply of electricity, but a right for the dominant owner (our client) to connect the pump to a supply, even in the event that the existing connection was curtailed, which was the case here when the servient owner took steps to disconnect.
There was no positive aspect to this right; it was negative in nature, requiring the servient owners to suffer the passage of a supply across their land only and not to interfere with it.
