The dominant land at the time of sale contained a house ‘adapted for about twenty-five inmates, and only part of the drainage of the house rain into the ditch or moat’ on land retained by the vendor. The purchaser subsequently extended the house, ‘and turned it into a lunatic asylum in which 150 persons were resident’ and also ‘altered the drains and made them all discharge into the ditch or moat’. An easement had been expressly granted, in a lease, and enlarged on acquisition of the freehold. The easement was to drain sewage through a drain into an existing open cesspool ditch on the servient property. The change in the dominant tenement caused a large increase in the volume of sewage that went into the open cesspool.
Held: ‘There had been a stipulation in the lease that the buildings were not to be altered without the lessor’s consent, which was never asked for. The right to the passage of soil was not an unrestricted right, but was at that time to some extent limited, as the mansion-house could not be enlarged without the consent of the lessor, and it must be held that the grant was on the same terms as the lease. The words as to the passage of soil could not be held to apply to any additions to the buildings. The Plaintiff, therefore, had not made out a right to the passage of soil and water from the building in its enlarged state. It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition.’ ‘It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition. In ascertaining the extent of the right of a user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle . . . in Williams v James … as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is, in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase. It had also been argued that the easement must be measured by the quantity which the ditch would contain, but there was no authority for such a doctrine, which would give rise to very difficult questions. Some similar questions might no doubt arise in this case, as the owner of the easement might send down so large a quantity as not to leave room for the quantity sent by the owner of the land, but this would probably be of much less importance.”
Judges:
Sir Charles Hall V-C
Citations:
(1875) 10 Ch App 582
Jurisdiction:
England and Wales
Citing:
Cited – Williams v James 1867
A right of way had been granted over the plaintiff’s land for the benefit of ‘Nine acre field’ in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining ‘Parrott’s land’ had been mowed and stored on Nine acre field in the . .
Cited by:
Cited – Gardner and Gardner v Davis and others CA 15-Jul-1998
Three properties were dependent upon drainage through the plaintiff’s land. The soakaway system would not support increased usage. The appellant challenged an order denying an easement.
Held: The drainage easement was to be read according to . .
Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 07 December 2022; Ref: scu.185408