Bate v Affinity Water Ltd  EWHC 3425 (Ch)
Guy Fetherstonhaugh QC and Fern Horsfield-Schonhut acted for the successful defendant instructed by Richard Bedford of Burges Salmon. This case will be of particular interest to practitioners for its consideration of Re Salvin’s Indenture  2 All ER 498, on the question of whether the undertaking of a water undertaker can constitute a dominant tenement.
The claim concerned the legal basis of the presence of a water main and service pipe on the Claimants’ property. The Claimants asserted the pipe was a trespass and claimed an injunction and damages. The Defendant water undertaker asserted that the pipe was in place pursuant to an express easement, alternatively by virtue of its statutory powers, and in the further alternative by virtue of a prescriptive right.
HHJ Paul Matthews, sitting as a judge of the High Court, found that the dominant tenement contemplated by the parties was the small area of land where the Defendant’s borehole and pumping equipment were situated, a few yards away from the Claimants’ land. Notwithstanding that it was not expressly identified in the deed, it was identifiable by reference to extrinsic evidence. Accordingly, there had been an express grant of an easement. If that was wrong, then an easement had been acquired by prescription. Such acquisition was not prevented by the mistaken belief of the servient owner that the user was other than as of right.
The judge nevertheless went on to comment on Re Salvin and the Claimants’ argument that it was inconsistent with subsequent case law, in particular Newcastle under Lyme Corporation v Wolstanton Ltd  Ch 92. He considered that the dicta of Evershed J in that case were directed to a different issue, namely whether the statute under which the undertaker in that case acted itself created a property right; Evershed J had not been concerned with whether an express grant would fail for want of a dominant tenement. Stockport Waterworks Company v Potter (1864) 3 Hurl & C 300, on which the Claimants also relied, could also be distinguished as being a case where the purported dominant tenement was too far away to be accommodated by the servient tenement. The judge expressed his own view that Re Salvin is likely correct.
The judge also accepted the Defendants’ argument that the pipe was laid by way of statutory powers. In the absence of authority on the point, the judge held that the water undertaker was not required to make an election as to whether it was proceeding by way of private law grant or statutory power, nor was it required to make a conscious decision to use that power in order to exercise it. The judgment also considers the meaning of ‘street’ in the context of s.15 Public Health Act 1936 and the Water Industry Act 1991.
The judgment is available here.
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