Cargill v Gotts

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE LAWTON,LORD JUSTICE TEMPLEMAN,LORD JUSTICE BRANDON
Judgment Date18 Dec 1980
Judgment citation (vLex)[1980] EWCA Civ J1218-1

[1980] EWCA Civ J1218-1

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice

Chancery Division

Before:

Lord Justice Lawton

Lord Justice Brandon

Lord Justice Templeman

David Cargill
Respondent
and
Brown Gordon Gotts
Appellant

MR. J. L. KNOX, Q. C. and MISS S. PRADMAN (instructed by Messrs. Collissons, London Agents for Messrs. Keefe Forman & Co.) appeared on behalf of the Appellant.

MR. V. R. CHAPMAN (instructed by Messrs. Daynes, Chittock & Back, Norwich) appeared on behalf of the Respondent.

1

LORD JUSTICE LAWTON
2

The first judgment will be delivered by Lord Justice Templeman.

LORD JUSTICE TEMPLEMAN
3

This is an appeal from a decision of Mr. H. E. Francis, Q. C., sitting as a deputy High Court judge in the Chancery Division and delivered on 26th October, 1979- The learned deputy judge held that the plaintiff, Mr. David Cargill, was entitled at common law to an easement to draw water from the defendant's Mill Pond at Gimingham in Norfolk for the purpose of farming the plaintiff's Grove Farm. The defendant, Mr. Gotts, appeals to this court.

4

The River Mun flows in a south-easterly direction from Clapham Dams and south of Grove Farm under the highway which runs north and south through the village of Gimingham. After crossing the highway, the river flows east to the sea at Mundesley. West of the highway the river broadens to the Gimingham Mill Pond which is separated from the highway by a narrow strip of land. The Mill Pond and the narrow strip of land which allows access from the highway to the Mill Pond are owned by the defendant. The plaintiff's Grove Farm comprises 4O0 acres and its southern boundary is 500 yards from the defendant's Mill Pond.

5

Since before 1927 water was drawn from Mill Pond by a water cart for use on Grove Farm, mainly for the purpose of watering horses and cattle. At first, the water cart carried a barrel with a capacity variously estimated at between 50 and 100 gallons. The water cart drew water from Mill Pond at intervals of time which varied according to the seasons and according to the recollection of the witnesses from four times a week to two or three times a day. In winter the Mill Pond was not used so much by Grove Farm because sufficient water wasavailable from another source. At threshing times and possibly at other times water from Mill Pond was or may have been used to operate steam driven machinery on Grove Farm.

6

About 1942 the plaintiff began to use water from the Mill Pond to spray crops on Grove Farm. The water barrel was replaced by a tank which held 250 to 300 gallons. Crop spraying which was originally carried out in April and May was progressively extended and intensified. By 1953 crop spraying was described as a practice and, in the late 1950's, the 250 gallon tank was replaced by a 900 gallon tanker called a bowser. This was later augmented by a second tank of 500 gallons so that 1,400 gallons in all could be drawn from the Mill Pond by means of a pump attached to the bowser at any one time. Between the middle 1950s and 1977 the quantity of water abstracted by the plaintiff from the Mill Pond increased ten-fold, but this increase was partly due to the fact that the plaintiff by 1977 was taking water not only for Grove Farm but for three other farms as well. Occasionally, the plaintiff drew 4,000 gallons in a single day. In February 1977 the defendant forcibly prevented the plaintiff from drawing water from Mill Pond and, by the writ in these proceedings dated 6th December 1977 the plaintiff claimed a declaration that he was entitled to draw whatever. water he required from the Mill Pond for the more convenient occupation of Grove Farm by virtue of the Prescription Act 1832 or, alternatively, by common law or, alternatively again, by the operation of the doctrine of Lost Modern Grant. The plaintiff also claimed an. injunction restraining the defendant from preventing the plaintiff from drawing water from Mill Pond and the plaintiff asked for damages. The defendant by his defence denied that the plaintiff had acquired any easement and further pleadedthat, since 1st July 1965, the plaintiff had been prevented by the Water Resources Act 1963 from drawing water from Mill Pond.

7

By section 23(1) of the Water Resources Act 1963 and orders made under that Act, it became illegal on and after 1st July 1963 subject to certain exceptions, for any person to abstract water from any source of supply except in pursuance of a licence under the Act granted by the appropriate river authority. The Mill Pond is such a source.

8

By section 24(1) the restriction imposed by section 23(1) "does not apply to any abstraction of a quantity of water not exceeding 1,000 gallons, if it does not form part of a continuous operation, or of a series of operations whereby in the aggregate more than 1,000 gallons of water are abstracted."

9

By section 24(2) the restriction imposed by section 23(1) does not apply to any abstraction from an inland water by or on behalf of an occupier of land contiguous to that water at the place where the abstraction is effected, insofar as the water is abstracted for use on a holding consisting of that land and is abstracted for use on that holding for inter alia agricultural purposes other than spray irrigation. This exception does not avail the plaintiff because Grove Farm is not contiguous to Mill Pond.

10

By section 27 an application for a licence to abstract water may be made by the occupier of land contiguous to the supply or by anyone who has a right of access to the supply. The plaintiff had a right of access to Mill Pond if he acquired an easement before 1st July 1965, but he did not apply for a licence prior to these proceedings.

11

By section 33 where any person abstracted water from a source of supply at any time within a period of five years endingwith 30th June 1965 he was, on application made to the river authority before 30th June 1965, entitled to a grant of a licence Joinder the Act. The plaintiff was thus entitled to a licence of right under the Act, a licence which would have been limited to the amount of water and the purposes for which he had used the water from time to time during the preceding five years; see section 35. The plaintiff did not apply for a licence of right under the Act.

12

In the result, the plaintiff acted illegally on every occasion when he abstracted water from Hill Pond after 30th June 1965 unless he is entitled to the benefit of the exception contained in section 24(1) and can establish that, every time his bowser abstracted 1,000 gallons or less from Mill Pond, that abstraction did not "form part of a continuous operation, or of a series of operations." The learned deputy judge held that "It was open to the plaintiff to abstract water from the Mill Pond consistently with the provisions of the 1963 Act provided he did not draw more than 1,000 gallons on any one occasion."

13

I am unable to agree. If the plaintiff planned to abstract 10,000 gallons by ten instalments of 1,000 gallons for the purpose of filling a swimming pool, then clearly each abstraction would form part of a series of operations designed to fill the pool, whether the instalments were abstracted on the same day or on ten separate days or at irregular intervals. If the plaintiff planned to abstract as much water as was needed to fill and maintain a swimming pool and employed a 1,000 gallon tank for that purpose, again each abstraction would form part of a series of operations designed to fill and maintain the swimming pool, whether the capacity of the pool was known or not, whether the pool leaked at an unknown rate or not and whether or not the1,000 gallon tank was filled once per day or on irregular days. Similarly, if the plaintiff planned to abstract 10,000 gallons to spray his crops or planned to abstract as much water as was necessary to spray his crops and employed a 1,000 gallon tank for that purpose, again each filling of the tank formed part of a series of operations designed to spray the crops. In my judgment, on the facts of the present case, each abstraction of water by the plaintiff formed part of a series of operations, the object of which was to help meet the water requirements of Grove Farm for agricultural purposes. Section 24(1) is not apt to authorise and was not intended to authorise any one person to abstract as much water as he pleases from any one source of supply provided only that each abstraction does not exceed 1,000 gallons.

14

I conclude that every abstraction of water by the plaintiff from Mill Pond after 30th June 1965 was illegal. It follows, in my judgment, that the plaintiff cannot rely on any abstraction of water carried out after 30th June 1965 in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity. The 1963 Act, however, does not contain any provision which destroys an easement already acquired. An easement of water acquired before 1st July 1965 may not lawfully be exercised without a licence, but does not cease to be an easement if a licence is not obtained nor does it cease to be an easement until a licence has been obtained. The easement remains an easement but cannot be exercised without committing an offence under the Act.

15

If the plaintiff can establish that, before 1st July 1965, he acquired an easement to take water from Mill Pond, then he will be entitled to apply for a licence and, if he is granted a licence, may thereafter lawfully exercise the easement to theextent justified by the easement but subject to any limitations and provisions imposed by the terms of the licence or any modification or renewal of the licence from time to time.

16

The plaintiff claims that the evidence established that, before 1st July 1965, Grove Farm acquired by more than twenty years user the right to water from the Mill Pond for agricultural purposes....

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