A cottage on Mull had no public water supply. The owner had a right to draw water for domestic purposes from a ‘spring or well’ on neighbouring land, but without any guarantee as to its sufficiency, purity or suitability; ‘and for the above purpose to lay and maintain at the expense of my said disponee and her foresaids adequate water pipes for the purpose of withdrawing water for the purposes aforesaid.’ The owner of the cottage employed a firm, carried on by the man behind the company that owned the land on which the source of water lay, to construct a piped water supply from the source to her cottage. The work was not done satisfactorily and the owner terminated her contract with the firm and employed other contractors to complete the necessary works, which included a dam and settling tank. The company threatened to remove the entire installation, on the ground that, due to a misdescription of the source of the water in the title, the owner of the cottage had no servitude whatever over its land. She brought proceedings to interdict the company from interfering with her water supply. The company contended that, even if the misdescription point were rejected – as it was – the settling tank should none the less be removed, on the ground that, in terms of the disposition, the dominant proprietor had no right to do anything more than lay water pipes on its land.
Held: The company’s appeal failed. It was not entitled to remove the settling tank. Although the right to construct and maintain a settling tank on the servient land was different from the right to lay pipes on the land, a servitude right to lay pipes could carry with it an implied right to construct a settling tank on the servient land, where the works ‘were essential to make the servitude effective’ (Lord Reid) or were ‘essential to the carrying out of the purpose for which the original servitude was granted’ or were a ‘means of obtaining an effective supply of water’ (Lord Guest).
After noting that the company admitted that some kind of dam was necessary to provide a source from which water would flow into the pipe, Lord Reid said: ‘And if it is equally necessary for the enjoyment of the right to draw a domestic water supply from this point that there should be a settling tank, in my opinion the making of such a tank is equally authorised by the grant. The owner of the dominant tenement must not erect works of a size or character beyond what is necessary for the enjoyment of the right granted. But it must have been the intention of the granter of the servitude should have a right to construct on his land such works as were essential to make the servitude effective, and I find nothing in the wording of the grant to prevent that from being done.’
Lord Guest pointed out that without the settling tank, the pipes became blocked, and said ‘If the respondent was entitled to draw water from the stream and she was entitled to collect the water by means of a dam and to take it by means of pipes for domestic purposes, my view is that the servitude comprehended that she would be given an effective water supply system. Ferguson on The Law of Water, page 264, states the matter thus: ‘The principle appears to be that that may be done which is essential to the carrying out of the purpose for which the original servitude was granted . . .’ Without a settling tank the water supply granted by the servitude would be rendered useless as the pipes would be at times blocked. Whether the settling tank be regarded as part of the system of water pipes or as a means of obtaining an effective supply of water, I am clearly of opinion that the appellants cannot object to the presence of the settling tank.’
Judges:
Lord Reid, Lord Guest
Citations:
Unreported, 20 June 1967
Jurisdiction:
Scotland
Cited by:
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 14 May 2022; Ref: scu.260031