Easements: ancillary rights

The supply of electricity to a pump, which served a borehole on the servient land that pumped water to the dominant land, was an ancillary right because it was necessary for the enjoyment of the right expressly granted. In Gosling and others v Bradbury and another [2023] EWHC 199 (Ch); [2023] PLSCS 28, the appellants were the owners of a farm. The respondents were the trustees of a will, under which the beneficiary occupied the neighbouring lodge. The farm was sold to the appellants’ predecessors-in-title in 1982. The conveyance contained a water easement conferring on the owner of the lodge the right to uninterrupted passage of water from a borehole via a pump and pipes on the farm. The appellants were precluded from interfering with that right, but any work associated with the continued supply of water from the borehole was to be done or paid for by the owners of the lodge. In April 2019, the appellants cut off the electricity supply to the pump. The respondents sought a declaration that they were entitled to access to the water supply from the borehole and an injunction restraining the appellants from interfering with the supply of the same. At first instance, the court found that the respondents’ land had the benefit of a legal easement, which included ancillary rights to enjoy the passage of electricity across the appellants’ land to supply the water pump. The appellants appealed on a number of grounds, but the High Court gave short shrift to the same. In dismissing the appeal it observed that the grant of an easement carried with it the grant of such ancillary rights as were reasonably necessary to its exercise or enjoyment. The ancillary right must, however, be capable of subsisting as an easement and impose negative obligations on the owner of the servient land. The court below had applied the test of necessity. It found that the upward slope of the land on which the lodge was situated from the borehole necessitated the use of the pump. Additionally, the passage of electricity was an ancillary easement capable of existing as a legal easement. The ancillary rights declared imposed no positive obligations on the appellants or their successors-in-title. The right to the uninterrupted passage of a utility imposed a negative obligation on the servient landowner to take no positive step which prevented the passage of that utility onto the servient land, as well as its subsequent passage from the servient land to the dominant land. Elizabeth Dwomoh is a barrister at Lamb Chambers