Gilson v Kerrier District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY |
| Judgment Date | 25 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0325-6 |
| Date | 25 March 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0325-6
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Orderof Mr Justice Templeman.
Lord Justice Buckley
Lord Justice Geoffrey Lane and
Lord Justice Goff
Mr. J.A.R. FINLAY, Q.C. and Mr. PATRICK POWELL (instructed by Messrs E.P. Rugg & Co., Agents for Messrs Frank & Caffin, Truro) appeared on behalf of the Appellant (Plaintiff).
Mr. MERVYN DAVIES, Q.C. and Mr. G.C. RAFFETY (instructed by Messrs Balderston, Warren & Co., Agents for Messrs Hancock & Lawrence, Helston) appeared on behalf of the Respondents (Defendants).
This is an appeal from the dismissal by Mr. Justice Templeman of this action on the 13th February last. The subject-matter of dispute is a watercourse traversing a farm called Trebarvah in the parish of Constantine in the County of Cornwall. The farm and the village lay at all material times within the district of the Defendant Council. The farm lies to the north of the village of Constantine. The Plaintiff is the owner of the fee simple of the farm. The watercourse is an artificial watercourse carrying water from certain springs situated some four miles to the north or north-west of Trebarvah. It seems that the water from these springs flows eastwards for a short distance in a natural course to a point in or near Ordnance Survey 830. There, instead of continuing to flow eastwards as it naturally would, it is diverted through an artificial course in a southerly direction through a farm called Trewardreva and another called Bosahan to a point on the boundary of Trebarvah at the north- east corner of Ordnance Survey 1039, which is a field called High Castle Rise and forms part of Trebarvah farm. The watercourse then makes a right-angled turn in a westerly direction across High Castle Rise to its north-west corner, where it passes under a road by means of a culvert and, having done so, turns immediately south down the western margin of Ordnance Survey 1036, which is another Trebarvah field, called Mowey Field. Near the southern extremity of that field it again passes by means of another culvert under the same road in an easterly direction into Ordnance Survey 1040, a third Trebarvah field called Lower Castle Rise, and flows south for a short distance down the western margin of that field, leaving the farm at the southwestcorner of Lower Castle Rise. It then apparently flows down the verge of the road in a south-easterly direction to the village of Constantine. It continues down what appears from the Ordnance Survey nap to have been the main street of the village and continues on in the same direction until it flows into a stream running through Ordnance Survey 2217.
At the point where the watercourse enters High Castle Rise there is a catchpit or pool of no very great size, and from that point to the north-west corner of High Castle Rise the watercourse is carried underground in a culvert or drain. At the point near the southern extremity of Mowey Field where the watercourse passes for the second time under the road, a pipe leads out of the watercourse through the farmyard of Trebarvah and rejoins the watercourse near where it leaves the farm in the verge of the road. Some means wore provided for access to the water from this pipe in the farmyard.
The Judge held that down to the point at which it enters High Castle Rise the channel was an ancient one. The learned Judge assumed that at that point it was diverted to the course downstream from that point which I have described in the year 1845. That assumption has not been challenged and indeed has been accepted by Mr. Davies in this Court.
In or about 1845 a public supply of water was brought to the village of Constantine by public subscription by means of the watercourse as I have described it. Except where it crosses High Castle Rise and at two points upstream from there, the watercourse at that time and for many years afterwards flowed in an open channel.
In 1899 the local authority, the East Kerrier District Council, sued the then occupant of Trebarvah in thelocal County Court for damages for having breached a dam on the watercourse forming part of or adjoining the catchpit in the north- east corner of High Castle Rise. We have a fairly full report of the case published in the "Falmouth Packet and Cornwall Advertiser" on the 13th May, 1899. The learned Judge inferred from the 1899 report that the dam was part of the works carried out in 1845, but I think this must have been a misapprehension on his part, for, according to the 1899 report, the particular dam which was the subject-matter of the County Court proceedings had been installed by the East Kerrier District Council. This would net have been until after 1875. The evidence as recorded indicated that formerly a mud obstruction had performed the function of the dam at that point. Neither the 1899 report nor any of the evidence in this case establishes what course the water followed before the works carried out in 1845. But, on the view which I take of the case, this is of no significance.
Whatever the history may have been, this watercourse was not, where it traversed Trebarvah, a natural stream. It was an artificially constructed watercourse used for the supply of water to inhabitants of the village of Constantine and its neighbourhood.
The Public Health Act, 1875, Section 64, provides as follows: "All existing public cisterns pumps wells reservoirs conduits aqeducts and works used for the gratuitous supply of water to the inhabitants of the district of any local authority shall vest in and be under the control of such authority, and such authority may cause the same to be maintained and plentifully supplied with pure and wholesome water". I do not think I need read the rest of the section.
In the County Court proceedings in 1899 the case of the Plaintiff Council (as it then was) was that the watercourse had vested in the Council under Section 64. In the present proceedings the Plaintiff similarly asserts that the watercourse vested in the Council under that section, but the Defendant Council denies this. Mr Davies has contended that, upon its true construction, Section 64 only applies to a supply of water fit for human consumption, and he says that the watercourse did not provide such a supply. It is true that the section empowers a local authority to provide a plentiful supply of pure and wholesome water, but I see no justification for limiting the operation of the vesting provision in the way suggested. In any case, the learned Judge found as a fact that the supply of water as established in 1845 was a supply for all purposes, and I set no reason to disturb that finding.
In my judgment, the watercourse with which we are concerned does fall within the words "conduits aqueducts and works" in Section 64. The supply of water to the inhabitants of the district was gratitous. It was gratuitous also so far as the occupants of Trebarvah were concerned, and the fact that the occupants of Trebarvah enjoyed benefits in respect of watering their cattle which were not enjoyed by other inhabitants does not seem to me to take the case out of the section. In the sense that this water supply was available to be enjoyed by all who had access to it anywhere along its course, it was a public supply; and, indeed, the history of its conception by public subscription and the fact that the public subscription was designed to provide water in the village clearly indicates, in my judgment, that this was apublic supply. Accordingly, in my judgment, this watercourse did vest in the Defendant Council by the operation of Section 64, and that was the view of the learned Judge.
It might be convenient to mention at this point that in 1969, due to a particularly heavy rainfall and to a blockage in the watercourse at or near the catchpit, serious flooding occurred. The flood water flowed down over Lower Castle Rise and flooded some bungalows situated to the south of that field on land which did not form part of Trebarvah. Thereafter, the Plaintiff from time to time urged the Council to carry out works of maintenance on the watercourse, but nothing was done and the Council eventually disclaimed any liability to carry out any such works.
The next question to which I turn is: What was the estate which vested in the Council under Section 64? In my judgment, what vested extends to all the works of a man-made kind which contributed to making the water available as a public supply to members of the public in the area. This must, in my opinion, embrace all the man-made or man-contrived diversions of the watercourse which resulted in the water being accessible to members of the public within the relevant area; and this, I think, must embrace the whole of the watercourse upstream to the point in 0.S.830 inhere it had been first diverted from what would otherwise have been its natural flow.
The learned Judge, in the course of his judgment at page 5 of the transcript, at "B", said: "I accept that Section 64 applied, the water in the first instance at any rate being provided for all purposes. I reject Mr. Mervyn Davies' next submission that the catchpit, Cornish drain andculverts" — I pause to say that the reference to the Cornish drain is a reference to where the water passes underground across High Castle Rise — "were not public works within Section 64 because the public did not have access to them. It appears from the 1899 report and from the evidence that the Council had access to the whole of the watercourse as it flowed through Trebarvah Farm on behalf of the public and for the purpose of maintaining the supply of water to the public in the village, and in my judgment that suffices". For my part, I think that the vesting operated not only in respect of the works...
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Blanchfield et Al v A.G. et Al; Cross et Al v A.G. et Al; Boyce v Masson; Barcant v A.G. et Al
...the State. 57 The court was required to construe a section which vested land absolutely in the State. 58 He cited the case of Gilson v Kerrier District Council [1976] 3 All E.R. 343 which demonstrated that the highway formula was not being adhered to. 59 On the plain language of the section......