Rance v Elvin (1985) 50 P&CR

Key point

  • Rights that impose positive obligations on the servient owner are not valid easements
  • The right to an uninterrupted supply of water flowing through another person’s land is a valid easement, even if the other person is paying for the water supply

Facts

  • C claimed an easement for the uninterrupted passage of fresh water through pipes on D’s land
  • The Judge found against C on the basis that there was a positive obligation to pay water charges
  • D was charged by the water company for the supply, and had a right to recoup payments from C

Held (Court of Appeal)

  • The right was a valid easement

Browne-Wilkinson LJ

  • There is a distinction between right to a supply of water and a right to uninterrupted passage of water coming into the pipes under D’s land
  • D is entitled to refuse to pay for the supply of water but if he is paying for it, he cannot stop C from using it as well
  • There is no positive obligation on D by the right to the passage of water supplied by another
  • D cannot do any physical act interrupting the passage of water
  • D is under no obligation to ensure that any water does in fact reach the private water system
  • The obligation to pay for such supply arises not from the existence of the easement but from the arrangements made by D for the supply of water to the private system

Commentary

Positive Obligation vs Negative Easement vs Positive Easements

  • A negative easement is a negative obligation on the servient owner to refrain from doing some act on their land (e.g. obligation not to remove a fence) – this is a valid easement
  • A positive easement is a right of the dominant owner to use the servient land and a corresponding obligation on the servient owner not to prevent such use (e.g. a right of way) – this is a valid easement
  • A positive obligation is an obligation on servient owner that requires them to do some positive act – this is not a valid easement

Analogies

  • In problem questions the facts of this case can be applied by analogy to obligations to allow the passage of electricity or gas through another person’s land