On more than one occasion I have used these notes to warn of the dangers inherent in selling off part of a farm or yard where the remainder is retained for the benefit of the landowner. The legal casebooks have been littered with cases relating to this topic over recent years and yet another instance of such circumstances raising an issue was brought to light in the case of Mitchell v. Potter and Another.

 

This time, the issue did not relate to rights of way or the supply of electricity but, rather, access to a private water supply. In 1986 the owner of the farm sold a farm and farmhouse to 'M', retaining part of the land on which was situated a bungalow. In addition to the bungalow a spring rose to the surface on the land retained by the owner and this supply fed a reservoir which provided 'M' and his land with their principal source of water. When the sale took place, 'M' was given a right to take water from the pipe fed by the reservoir.

 

More specifically, the right was to take "such an amount of water as may be reasonably required for domestic and farm purposes". The original owner also used the same water supply for his own purposes and, crucially, the ownership of the retained land passed into new hands. The inevitable dispute arose when the owner of the retained land claimed that 'M' was only entitled to water after he, the owner, had taken such water as he required for his own use and that as uphill owner, he was entitled to take as much as he reasonably required thereby giving him priority over the supply.

 

The problem went all the way to the Court of Appeal and the Appeal Judges decided that 'M' had the first call on the water supply from the reservoir even though he was not the uphill user of the supply. It was noted that the grant of the right in the Conveyance did not express a limit on how much water 'M' could take. The Court did not dwell on the general law relating to such matters but merely restricted itself to an interpretation of the Conveyance by which the grant was made.

 

This emphasises the importance of ensuring that when any part of a property is sold off to a third party, the grant and reservation of rights must be expressed clearly and precisely so as to avoid the cost and inconvenience of future legal proceedings. Although I do not know exactly what caused the dispute in this case, it does signal the difficulties that may occur when the original owners of land sell on to people who were not party to the original Agreement. It is inevitable that newcomers may not share the same empathy for an arrangement which has worked well over the years and one cannot afford to be complacent in this respect.