Palmer and Another v Bowman and Another

JurisdictionEngland & Wales
Judgment Date14 October 1999
Judgment citation (vLex)[1999] EWCA Civ J1014-21
Docket NumberCase No CCRTF 1998 0976/B2Case
CourtCourt of Appeal (Civil Division)
Date14 October 1999
Palmer & Anr
Bowman & Anr

[1999] EWCA Civ J1014-21


Lord Justice Auld

Lord Justice Aldous

Mr Justice Rattee

Case No CCRTF 1998 0976/B2Case

No CCRTF 1998 0976/B2



Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Peter Birts QC (for the Appellant)

Mr Rayner James QC (for the Respondent)


Thursday 14th October 1999



These proceedings represent an unhappy dispute between neighbouring owners of land in Norfolk. The claimants allege that they are entitled to an easement entitling them to have their land drained into the land of the defendants, and that the enjoyment of such easement has been wrongly interfered with. The claimants failed before the judge below, His Honour Judge Mellor, sitting in King's Lynn County Court. He held that they or their predecessors in title had been entitled to an easement such as they claimed, but that it had been extinguished by abandonment. The claimants appeal against the latter decision. The defendants resist that appeal, but also seek to uphold the judge's dismissal of the claimants' case on the alternative ground that the judge was wrong to find that the claimants had ever been entitled to the easement they claim.


The claimants' land is agricultural land in Norfolk. It is known as Edwin's Farm, Sporle, near King's Lynn. It lies in the angle formed by the intersection of two public roads, Castleacre Road, running in approximately a north-westerly direction from the intersection, and Dunham Road running in approximately a north-easterly direction. The whole of the north-western boundary of Edwin's Farm abuts onto Castleacre Road, and the whole of its south-eastern boundary onto Dunham Road. It does not however include one area of land bounded on the north-west and south- east respectively by the stretches of Castleacre Road and Dunham Road nearest to the point at which those roads intersect. The northern part of this latter area of land, referred to in the proceedings as North End Farm, is owned as to part (the northernmost part) by the first defendant and the other part by the second defendant.


Edwin's Farm is made up of what were previously two holdings. One, which the claimants acquired in 1987, lies immediately to the north of North End Farm, having a common boundary with North End Farm, and its north-western boundary abuts onto Castleacre Road. The other holding now comprised in Edwin's Farm was acquired by the claimants in 1992. It adjoins the first holding, lying to the south of it. Along its south-western boundary it adjoins North End Farm. It stretches south eastwards right down to Dunham Road.


Thus, while the relative positions of the parties' land are best seen on a plan annexed to the amended particulars of claim in the case, the essential point for present purposes is that the defendants' land abuts onto Edwin's Farm along the full length of each of the northern and eastern boundaries of the defendants' land. The issues determined by the judge relate to ditches which used to run along those two boundaries between Edwin's Farm and North End Farm. At all material times there was also a ditch ("the roadside ditch") running along the road side of the boundary between Edwin's Farm and Castleacre Road. At one time the roadside ditch continued down Castleacre Road to its intersection with Dunham Road.


The ditches along the northern and eastern boundaries of North End Farm (to which I shall refer as "the north ditch" and "the east ditch" respectively) have been filled in, at least in part. The easement to which the claimants allege they are entitled for the benefit of Edwin's Farm has been variously described by them in the course of these proceedings, but in essence it is a right to have natural water from Edwin's Farm drained into and along the north ditch and the east ditch. By their particulars of claim the claimants also claimed a right to require the defendants to reopen those ditches and keep them open. Not surprisingly the claimants abandoned any such claim before this court, and instead seek a declaration that they have the right to go onto the defendants' land to reopen and maintain the ditches. The claim to an easement is based exclusively on the doctrine of lost modern grant. There is no suggestion of any express grant of such an easement.


In 1806 Edwin's Farm, until then common land in the manor of Spoorle, was the subject of an inclosure award in favour of one John Leveson Gower, already a substantial local landowner. The inclosure award included the following provisions:

"…and we the said commissioners do hereby order and direct that the several fences herein directed to be raised and made shall be made with ditches not less than four and a half feet wide at the top, fifteen inches wide at the bottom and three feet deep perpendicularly with a bank laid with spring and a stake bound hedge or other sufficient fence set on top…and we do order and direct that the said John Leveson Gower shall make and keep in repair fences against the Dunham and Castle Acre Roads and against the allotments of the said John Green, Adam Hall, Anne Scott, Tillot Hudson and Sarah Howard."


Tillot Hudson and Sarah Howard were predecessors of the defendants in title to North End Farm. The judge found that following that inclosure award a hedge, with a ditch on the far side of it from the inclosed land, was constructed around what is now Edwin's Farm. As the judge said, it would indeed be reasonable to infer that the ditches and hedges were constructed on the land inclosed by the award to comply with the terms of it which I have read. This would appear to confirm the reality of the rebuttable presumption of law that the hedges and ditches stood on Edwin's Farm, and not on the neighbouring land, and, in particular, not on what is now referred to as North End Farm. That presumption has most recently been described and applied by the House of Lords in Alan Wibberley Building Ltd. v. Insley [1999] 1 W.L.R. 894. However, at the date of the trial of this action in the County Court, the latest law on the subject of the hedge and ditch presumption was the decision of this court in the Wibberley case, which was later reversed by the House of Lords. It appeared to those representing the parties at the time of the trial that the effect of the application of the principles defined in that case by this court to the terms of a conveyance of Edwin's Farm in 1922 to a predecessor of the claimants was that the boundary between Edwin's Farm and what is now North End Farm ran along the centre of the hedges between them, thereby leaving the ditches on what is now the defendants' land. An express concession was made by solicitors representing the claimants, and accepted by the defendants, to the effect that the ditches in issue in this case belonged to the defendants and had belonged to them and their predecessors at all times since the hedges and ditches were constructed in or about 1806.


The claimants have not sought to be released from that concession, despite the fact that serious doubt has been cast on its justification by the House of Lords' decision in Wibberley, and it is common ground that this court now has to decide this case on the, I suspect wholly unreal, assumption that the ditches belong to the defendants and not the claimants. This is obviously a very unsatisfactory basis for a consideration of the claimants' case that they have acquired an easement of drainage into the ditch by prescription. For it may well be that in fact, during the time of the alleged prescription of such an easement, the claimants and their predecessors themselves owned the ditches concerned, making their acquisition of an easement over or in relation to them an impossibility. However, the conclusion which I have reached for reasons I shall explain later is that the claim to a prescriptive easement is misconceived regardless of any question of title to the ditches, so that the possible unreality of the concession as to title is, in my view, for present purposes immaterial.


However, doubts on the claimants' side about the true position relating to title to the hedges and ditches has caused a fundamental shift in the nature of the case sought to be made by them. They originally claimed simply a declaration of title to the hedges and ditches. They then, by amended particulars of claim, claimed in the alternative an easement of drainage in respect of the ditches. Since the concession made at the beginning of the trial their claim is based exclusively on an alleged lost modern grant of such an easement.


In the light of some of the arguments put before this court on behalf 0f the claimants, I think it is necessary to consider precisely what the easement alleged in the amended particulars of claim is. There has been no application to make any further amendment. The relevant allegations are to be found in paragraph 8 of the amended particulars of claim. It is sufficient to quote paragraph 8(a):

"(a) The Plaintiffs and their predecessors in title…have continuously from 1806 enjoyed openly and as of right the right to drain water from their land in to the said ditch [that is to say each of the north and east ditches] for the more convenient occupation of the Plaintiffs' said land and appurtenant thereto."


It has throughout been accepted, inevitably, by the claimants that the only water that has ever drained from their land into the north or east ditch is naturally accumulated rain water percolating through, or running over the surface of, their land. There is no suggestion that the claimants or their...

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