Stephens v Anglian Water Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 17 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0717-1 |
| Docket Number | 87/0752 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 1987 |
[1987] EWCA Civ J0717-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE FARQUHARSON)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Stephen Brown
Sir John Megaw
87/0752
THE HON. JOHN MELVILLE WILLIAMS Q.C. and MR. P. A. C. SAPSFORD (instructed by Messrs. Thompson Quarrell, London Agents for Messrs. Purdy & Holley, Alysham, Norfolk) appeared for the Appellant (Plaintiff).
MR. M. A. RAESIDE (instructed by Messrs. Mills & Reeves, Norwich, Norfolk) appeared for the Respondents (Defendants).
On 14th March 1986 Farquharson J. dismissed an appeal by the plaintiff in an action, Jennifer Elizabeth Stephens, from a decision of Mr. District Registrar J. R. Barker given on 27th June 1985. By that decision the District Registrar, on the application of the defendant, Anglian Water Authority, had struck out the plaintiff's claim pursuant to R.S.C. Order 18 and under the inherent jurisdiction of the court, on the grounds that it disclosed no cause of action. The learned judge refused the plaintiff leave to appeal to this court. She then applied to us for leave to appeal. Her application was listed on the basis that, if leave was given, the hearing of the subsequent appeal would immediately follow. With the consent of counsel on both sides, we heard the argument of the plaintiff's counsel, Mr. Melville Williams Q.C., on both the application for leave to appeal and (de bene esse) on the substantive appeal itself, together. At the conclusion of his argument we acceded to the plaintiff's application for leave to appeal to this court (which the defendant's counsel did not oppose) but dismissed her appeal. We intimated that we would give our reasons at a later date, and this we now do.
The action in substance raises a short but not unimportant question of law, which can be sufficiently stated as follows: Can a person whose land has subsided as a result of the abstraction by his neighbour of water percolating under the neighbour's land in any circumstances maintain an action in negligence against the neighbour for consequential damage?
The writ in the proceedings was issued on 6th December 1984 and was endorsed with a statement of claim. No evidence was filed on the defendant's subsequent application to strike out this pleading. Whether or not this accords with reality, we therefore have to assume for present purposes the truth of all the facts asserted in the statement of claim.
The material parts of the pleading are as follows:
"1. In January 1979 the Plaintiff was and remains the Owner of freehold property situate at 1 Great Yard, Saxthorpe, Norfolk where she then and now continues to reside.
2. The Defendants were and are statutory water undertakers in respect [of] inter alia the County of Norfolk.
3. In or about January 1979 the Defendants from land near Great Yard aforesaid, such nearby land belonging to the Defendants or in the alternative upon which they carried out extraction work with the permission of the owner, extracted such volume of water that part of Great Yard collapsed.
4. The point at which the said water extraction took place lies in close proximity to Great Yard aforesaid.
5. As a result of the collapse caused by the said action of the Defendants the value of 1 Great Yard aforesaid has depreciated considerably.
6. The matters complained of were caused by the negligence of the defendants, their servants and agents acting in the course of their employment.
PARTICULARS OF NEGLIGENCE
(a) Carrying out such water extraction despite warnings of the likely consequences.
(b) Failing to ascertain whether such water extraction would cause damage to Great Yard aforesaid or at all.
(c) Failing to ascertain whether there was any preferential underground connection between the point of such water extraction and Great Yard aforesaid.
(d) Failing to allow any or any sufficient margin for the effect of such water extraction upon the land and strata lying below Great Yard aforesaid."
The pleading finally contains an allegation that, by reason of the matters complained of, the plaintiff had suffered loss and damage. It gives particulars of such loss and claims damages and interest.
We pause to make certain observations on this pleading. First, with due respect to the pleader, we do not think that the drafting of the particulars of negligence is entirely satisfactory. For present purposes, however, we propose to read paragraph 6(a) of the pleading (favourably to the plaintiff) in the sense:
"Carrying out such water extraction despite warnings that it was likely to result in the collapse of all or part of Great Yard."
Secondly, the following features of the facts alleged (of which we must assume the truth) should be stressed:
(1) No allegation is made of water flowing in a defined channel either above ground or underground.
(2) No allegation is made of the abstraction of any mineral other than water.
(3) It is not alleged that the plaintiff is entitled to any easement, either of support or otherwise.
(4) No allegation is made of any derogation from any grant.
(5) The claim is framed in negligence alone and not in nuisance.
The issue of law now before this court (together with an issue arising from a parallel claim in nuisance) fell to be considered by Plowman J., on facts which were in material respects indistinguishable from those of the present case, in Langbrook Properties Limited v. Surrey County Council (1970) 1 W.L.R. 161. After a careful examination of a long line of authorities, Plowman J. (at p. 178) summarised his conclusions as to the legal position thus:
"The authorities cited on behalf of the defendants in my judgment establish that a man may abstract the water under his land which percolates in undefined channels to whatever extent he pleases, notwithstanding that this may result in the abstraction of water percolating under the land of his neighbour and, thereby, cause him injury. In such circumstances the principle of sic utere tuo ut alienum non laedas does not operate and the damage is damnum sine injuria.
Is there then any room for the law of nuisance or negligence to operate? In my judgment there is not."
In the penultimate paragraph of his judgment (at pp. 178–179) Plowman J. recognised that, on the facts which he was required to assume, this might be thought to be an unsatisfactory result, observing:
"If indeed the defendants could have avoided damaging the plaintiffs' property by the exercise of reasonable care, it may be asked why they should not be liable for their failure to do so."
However, he said:
"But so far, at any rate, as a court of first instance is concerned, it must, I think, be taken as settled that the restrictions which the law imposes on a landowner's freedom of action for the benefit of his neighbours are not such as to give the plaintiffs a cause of action in this case."
In a well sustained argument, Mr. Melville Williams attempted to persuade us that Plowman J.'s decision in the Langbrook Properties case, insofar as it related to the claim in negligence, was wrong. For that purpose he took us through a number of the leading authorities referred to in that decision and the later decision of Sir John Pennycuick V.-C. in Lotus Limited v. British Soda Company Limited (1972) Ch. 123.
Prom the authorities cited to us we derive (inter alia) the following conclusions as to the present state of the law:
(1) At common law the owner of land has, as an incident of his ownership, the right to have the surface of his land supported by subjacent strata of minerals on or under his neighbour's...
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