D granted P a right uninterrupted flow of water through water pipes situated under the retained land, with P contributing to the cost of the supply, but D was the party responsible for paying the meter. P claimed an easement of uninterrupted supply of water paid for by D, but with P owing D money in proportion to his usage. CA held that although P had a right to all water entering D’s pipes, and D could not interfere with this, on a true construction there was no duty for D to ever have water in its pipes.
Browne-Wilkinson LJ: An easement compelling D to buy water and put it in his pipes could not be an easement since it is a negative easement and not one of the exceptions under Phipps (there is a distinction between not obstructing access to water- passive, exception under Phipps- and supplying water- active, not excepted under Phipps). Here, there is a right to passage, which is an easement, and NOT a right to supply (which is not).
