Sturdy and another (Plaintiffs Respondents) Cullinane (Defendant Appellant) Cullinane (Plaintiff Appellant) Sturdy and another (Defendant Respondents)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE UPJOHN,LORD JUSTICE RUSSELL |
| Judgment Date | 24 May 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0524-1 |
| Court | Court of Appeal |
| Date | 24 May 1962 |
[1962] EWCA Civ J0524-1
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Buckley
The Master of The Rolls Lord Denning
Lord Justice Upjohn and
Lord Justice Russell
MR PETER FOSTER, Q. C. and MR J. C. LEOWARD (instructed by Messrs Kimbers, Agents for Messrs Humphries, Kirk & Miller, Wareham) appeared as Counsel for the Appellant.
MR R. W. GOFF, Q. C, and MR G. T. HESKETH (instructed by Messrs Lovell, White & King, Agents for Messrs Neville-Jones & Howie, Wareham) appeared as Counsel for the Respondents.
I will ask Lord Justice Upjohn togive the first Judgment.
This is an appeal from the Judgment of Mr Justice Buckley given on the 27th April, 1961, and it concerns the mutual rights and obligations of adjoining owners in respect of the waters of the River Piddle which, broadly speaking, runs between their estates near Bere Regis in the County of Dorset. There were two actions before the learned Judge and two appeals before us, but the issues in the first action, Sturdy v. Cullinane raise the important questions; the second action is a quia timet action in which Cullinane was plaintiff and the Sturdy's defendants, and it will only be necessary to say a very few words about the second action at the conclusion of this Judgment, Cullinane is appellant in both appeals.
The plaintiffs in the first action are the owners of Trigon Farm, an estate on the north side of the valley through which the River Piddle flows. The first plaintiff, a gentleman born in 1874, comes on the scene effectively in the year 1895 when he was appointed agent to an uncle who was the then owner and occupier of the farm. He remained as agent until he himself became the owner and occupier on the death of his uncle in 1917. The defendant in the first action is the owner of the Binnegar Hall Estate on the south side of this volley. He purchased this estate from the Farrer family in 1946. They had been the owners for many years, For the rest of this Judgment I shall refer to the parties as Trigon and Binnegar.
Mr Justice Buckley has very properly set out the rather complicated facts end history relative to the course of the river between these two estates overthe last 150 years at length in his Judgment. I do not think it necessary to repeat those facts here at length, for there has been no challenge to any of his findings of primary fact but only to his conclusions of mixed fact and law. I shall only give such brief description, therefore, as isabsolutely necessary for the purposes of this Judgment.
The relevant lay-out is clearly shown on Document 25 in the appeal. This is the 1902 Ordnance Sheet, scale 1/2500 as marked and signed for the purposes of an agreement made in 1914, to which I refer later. I shall call this "the plan", Trigon farm and Binnegar Hill (part of Binnegar Hall Estate) are clearly shown and we are concerned with some 2,000 yards of the valley from two sluices shewn on the north west of the plan called in evidence the ford down to the south east corner where some withy beds start on the edge of the plan. Before 1810 the Piddle in its natural course meandered through the valley and was the parish boundary. Its original course was, therefore, shewn on the plan (sufficiently, at all events, for our purposes) by the parish boundary marking except between two points marked on the plan "B" and "C". No doubt too the original bed of the river was in the twentieth century straightened out from somewhat to the north west of point "A", also marked on the plan, down to about Binnegar Mill.
As the learned Judge held, between 1810 and 1820 substantial reconstruction of this part of the river valley took place to improve its drainage and the irrigation of the water meadows therein. At the ford already mentioned two sluices were created of equal breadth and identical height to take a substantial part of the river waters through two artificial channels plainly shown on the plan – a north channel which runs just to the south of Trigon Farm and now marked on the plan "River Piddle or Trent" and a south channel. Presumably at some time after this, though it may nave been contemporaneous, a mill was built at Binnegar mil to take advantage of the flow of water running through this channel, though the mill itself has now long been removed. At all events, the mill stream itself was made to flow back into the original bed of the river by the islands (Field 573 on the plan) while the mill by-pass rejoined the original bed a little higher up towards the west. Thence onwards the southchannel ran and runs on the original bed of the river to point "B" As the learned Judge held from the evidence of early tithe maps, the original course of the river turned north there for a few yards and then ran eastwards just to the north of point "C" and then meandered north and east as shewn by the parish boundary. At some time which cannot be ascertained, but was presumably at the same time as these artificial watercourses were made, this kink in the river at "B" was ironed out and an artificial course was made as shewn on the plan to "C" which then turned north at "C" and joined the original bed. However, some 70 yards to 80 yards north-north- east of "C", at a point shewn by a dumbbell, the river left its original bed and was made to continue east-north- east in an artificial channel until it rejoined the north channel by Purse Brake. I shall call this channel from "C" to the north channel the "cross channel1"
At "C", however, an artificial channel was made, presumably at the same time, running slightly to the south of east to point "E". At that point the river could flow through river hatches at "E" through a further artificial watercourse north east of Payards Plantation to regain the original bed of the river at the withy beds just off the south east of the plan. As I have said, this construction was to improve the drainage and irrigation of the water meadows and was accompanied by a complicated series of sluices and river hatches shewn on the plan put in then or sometime much later. Later developments are shewn on the Ordnance Survey of 1928, but nothing turns thereon. For the purposes of this Judgment it is only necessary to say that there are and have at all material times been; (1) at "C" (a) a river hatch or hatches to control the flow of water into the cross channel, and (b) meadow hatches to control the watering of the meadows 580 and 582. (2)At and about "E" (a) a river hatch to control the flow through the channel to the withy beds, and (b) meadow hatches and cuts to control the watering of the meadow 111and further meadow hatches nearby at "D" to control the watering of that field and also until 1934 to control a carrier or cut for the watering of the Trigon field 110. It is only necessary to add that after this construction, while the main north and south channels took the main flow, some water apparently continued to flow down the bed of the original river past point "A" as straightened from time to time until it was blocked up in about 1914. Thereafter some water continued to flow down it because it received the surface drainage as the result of the watering of the adjacent meadows from the north and south channels.
In 1914 Trigon and Binnegar entered into the all important agreement upon which ultimately the issues in this action depend. It was the agreement for the purposes of which the plan was signed and marked, and was drafted by the present plaintiff, then agent for his uncle, the then owner of Trigon, who was one party, and the other party being Colonel Farrer, the then owner of Binnegar. Ho professional assistance was obtained in its drafting and it is not surprising that strongly divergent views are held as to its true intent and meaning. It is clear that the object of the agreement was two-fold: first, to clarify and define the exact boundary between the two estates, a matter with which we are not concerned, and, secondly, (putting it broadly) to define the rights of Trigon and Binnegar to the water flowing down this valley.
The agreement is quite short and I propose to read it in full: "An agreement made this 15th day of April 1914 between Edward Sturdy Esq. of Trigon and Philip Farrer Colonel of Binnegar Hall Dorset their heirs and assigns defining the boundary and water rights between the two estates as follows: The boundary to be as shown by red dotted line on 25 inch Ordnance Haps of 1902 edition signed by both parties. Trigon to waive all right (1) to abstract water from the boundary lake at A, (11) to carry its Pickards watering water across Binnegar lower meadow at D, and in lieu thereof will be at liberty (l) To remove the hatchfrom A, (11) to construct a carrier about B with overflow for surplus water on removing its boundary river hatches C but should the said overflow to be constructed on Trigon be found to be placed at too low a level for the proper watering of Binnegar lower meadow Trigon undertakes to raise it so that the said meadow can be so watered. Trigon also agrees to so alter the cill of one of the three feet wide river hatches at E that it cannot be lowered further than to within two inches of such cill for the purpose of providing water for the Binnegar fish when Trigon has its turn for the water. Binnegar to waive all right to any water from Trigon below the boundstone F to enable Trigon to construct a river to the low level stream at Carey at a future date for the better draining of the valley. The meadow watering rights from the boundary river between the points A and E (subject to the before-mentioned right for Binnegar to the preferential two inches under the one three feet wide river hatch, and the overflow...
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