This appeal, by the owners of Ford Farm, relates to easements and the extent of ancillary rights.
In a 1982 conveyance, Rashwood Lodge reserved the benefit of a right over neighbouring Ford Farm to take water from the spring by means of a pump and pipes along with the right to enter the farm for the purpose of inspecting, cleansing, maintenance and repair, making good any damage caused'.
The right was enjoyed by Rashwood Lodge until the owners of Ford Farm cut off the electricity supply to the pump moving the water subject to the easement in 2019. The owners of Rashwood Lodge subsequently applied to the Court, and successfully obtained a declaration that they were entitled to access the water supply from the borehole and an injunction restraining the owners of Ford Farm from interfering with it.
The owners of Ford Farm (the Appellants) challenged the findings of the Court on the following grounds.
- That the Judge had failed to conclude that the supply of electricity is necessary to the exercise or enjoyment of the easement;
- That the Judge was wrong to conclude that the easement granted an ancillary right to the passage of electricity via Ford Farm to the pump because such a right is positive in nature;
- The Judge was wrong to hold that the easement was a legal easement because it imparted no benefit to Rashwood Lodge;
- The Appellants had not interfered with water easement and/or its ancillary rights; and
- The Judge was wrong to conclude the easement was a legal easement because correspondence exchanged a number of years after the conveyance suggested that positive obligations were imposed on the owner of Ford Farm by the easement.
On appeal, points 1, 3 and 4 were dismissed on the basis they had not been raised at trial.
In response to the second point, it was held that the ancillary right to enjoy the passage of electricity across Ford Farm did not impose a positive obligation on the owners or their successors in title but merely required them to suffer things to be done on the Property. The ancillary right to the passage of electricity was not, therefore, deemed to be a positive obligation as claimed and did attach to the easement.
Before being dismissed, the third ground argued by the appellant was that the right did not provide a benefit to Rashwood Lodge (and therefore could not be an easement) because the water contained levels of arsenic unsafe for human and animal consumption. Although ultimately dismissed, the Judge noted that the right to a passage of water across neighbouring land 'is undoubtedly something which is capable of providing a benefit to the dominant land itself and it not merely personal to the landowner' and the water quality was not determinative to whether there was a benefit.
Finally, under the fifth ground of appeal, the validity of the easement itself was challenged. The appellants argued that the easement imposed a positive obligation on the owners of Ford Farm to supply and pay for electricity (relying on correspondence created a decade after the easement) and so could not be a legal easement. This was rejected by the Court on the basis of the well-known rule that a contract is to be constructed in light of the circumstances reasonably known to both parties at the time of execution.
The appeal was ultimately dismissed and the trial Judge's findings upheld. This case is a useful reminder of the key characteristics of easements and the potential for ancillary rights.
