Rance v Elvin (1985) 50 P&CR 9

Court of Appeal

Basic Facts: C asserted an easement for the uninterrupted flow of fresh water through pipes on D’s land. However, the Judge ruled against C, citing the existence of a positive obligation to pay water charges. D was billed by the water company for the water supply and had the right to recover these payments from C.

Issue for the Court: When is an easement capable of being granted?

Held: The court held that a right to water supply over another’s land was an easement, as long as it did not require the servient tenement to bear a positive burden.

(Browne-Wilkinson LJ):

• An easement cannot impose a positive obligation to supply water; it only allows for the uninterrupted passage of water through the pipes. C has no right to force M to supply water but can claim a right to have water pass through the pipes. M is only required to refrain from interfering with the passage of water, without a duty to ensure water flow.