• The court found that the right to an uninterrupted passage of water was an easement.
  • If a right imposes a positive obligation on the servient owner of the land, then it is unable to be an easement. In this case, even though the owner of the servient land was paying for the water passage, it was still able to be an easement as the servient owner would have had to pay for the water anyway. It did not impose an additional positive obligation on him.
  • The claimant could not force D to pay for the water supply so C could use it, but rather, if D was already paying for it, then C had an easement to use it.

Facts of the case

  • D owned land on which there was a supply of fresh water. D paid charges for this fresh water supply.
  • C claimed he had an easement to have access to this water supply, despite D paying for it.
  • At trial, it was found that there was no easement, because the water supply imposed a positive obligation on D for C to access that water supply, and such was not capable of being an easement.

Issues in Rance v Elvin [1985]

  • The Court of Appeal (CA) had to determine whether the claimant did indeed have an easement with respect to accessing the defendant’s water supply.

Held by the CA

  • The right to the water supply was an easement.
  • The present case is distinct from situations whereby the supposed easement imposes an additional obligation onto the servient owner, because the defendant in this case was paying for a water supply anyway.
  • If the defendant stopped paying for the water supply, then the claimant would not be able to enforce the easement, as it would then impose an additional obligation to D. This is similar to if the water supply required maintenance for it to reach C- in this case it would also not be an easement because of the additional obligation.

Browne-Wilkinson LJ

  • “the right granted is a right simply to the passage of water and no more. It does not purport to confer any right to insist on someone else ensuring the presence of water in the pipes. However, if water in fact reaches the private pipe system under Malcway’s land by any means whatever, there is appurtenant to Chantry Farm House a right that such water shall be permitted to pass through the pipes to Chantry Farm. No positive obligation is imposed on Malcway by such right to the passage of water supplied by another. It is the classic form of an easement of passage.”

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