Rance v Elvin [1985] 50 P & CR 9

• Defendant granted Plaintiff a right uninterrupted flow of water through water pipes situated under the retained land, with Plaintiff contributing to the cost of the supply, but Defendant was the party responsible for paying the meter.

• Plaintiff claimed an easement of uninterrupted supply of water paid for by Defendant, but with Plaintiff owing Defendant money in proportion to his usage.

• CA held that although Plaintiff had a right to all water entering Defendant’s pipes, and Defendant could not interfere with this, on a true construction there was no duty for Defendant to ever have water in its pipes. 

Browne-Wilkinson LJ

• An easement compelling Defendant 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). 

RELATED CASES

• Phipps v Pears