Green v Lord Somerleyton
| Green v Lord Somerleyton | |
|---|---|
 | |
| Court | Court of Appeal |
| Decided | 28 February 2003 |
| Citation(s) | [2003] EWCA Civ 198 |
| Case opinions | |
| Jonathan Parker LJ | |
| Court membership | |
| Judge(s) sitting |
Schiemann LJ Jonathan Parker LJ Sir Christopher Staughton |
| Keywords | |
| Easements | |
Green v Lord Somerleyton [2003] EWCA Civ 198 is an English land law case, concerning easements.
Facts
Green had dykes. Water from Lord Someleyton’s land drained into the dykes, and Green brought an action in nuisance to stop it happening after a serious flood that came from a lake on Somerleyton’s property. Water had flowed from it through marshland. The trustees of Lord Somerleyton’s land counterclaimed that they had an easement for the water drainage, from a 1921 conveyance by implied reservation.
The judge held there was no remedy in nuisance for naturally flowing water under Leakey v National Trust [1980] QB 485.
Judgment
Jonathan Parker LJ held that nuisance could cover floodwater. But Green had not made clear what action they ought to take, nor had he taken action to reduce risk himself. Furthermore, the provisions in the drainage deed were incorporated by reference into the conveyance to Green, and by implication those drainage rights were intended to be proprietary. So Somerleyton did have an easement of drainage.
| “ | 115. By those words, the 1921 Conveyance effectively incorporates by reference the entirety of the provisions of the 1921 Drainage Deed. To my mind, the clear inference to be drawn from this is that the provisions of the 1921 Drainage Deed were intended to have the character of proprietary, as opposed to merely contractual, rights. The 1921 Drainage Deed itself imposed obligations on Lord Somerleyton and his successors (a further indication that the parties were concerned with something more than merely contractual rights) to maintain and work the pump:
"... whenever requisite for the purpose of draining the said lands [i.e. Scale Marshes and Priory Marshes] and effectually drain the same." 116. It also imposed obligations on the purchaser, Mr Mallett, to keep the dykes on Priory Marshes "cleansed and open and in proper order". 117. Given the terms of the 1921 Drainage Deed, and their express incorporation by reference into the 1921 Conveyance, the conclusion seems to me to be inescapable that the 1921 Conveyance impliedly reserved to Lord Somerleyton and his successors in title to Scale Marshes an easement of drainage through the existing dykes in the terms claimed by the Trustees. |
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