England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
CHANCERY DIVISION
(His Honour Judge Rich QC sitting as a High Court Judge)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 February 2003

Lord Justice Jonathan Parker :

INTRODUCTION

1. This is an appeal by Mr John Green, the claimant in the action, from an order made by His Honour Judge Rich QC, sitting as a High Court Judge in the Chancery Division, on 8 July 2002. Permission to appeal was granted by Robert Walker LJ on 19 August 2002.
2. Mr Green is the owner of an area of marshland near Fritton, in Norfolk, known as Priory Marshes. The western boundary of Priory Marshes is formed by the river Waveney (which is tidal at this point); its eastern boundary by the main Great Yarmouth to Beccles road (the A143). Mr Green owns and farms nearby Priory Farm, and uses Priory Marshes as grazing for his cattle in the summer months.
3. On the opposite side of the A143 from Priory Marshes lies an area of marshland known as Scale Marshes. Scale Marshes forms part of the Somerleyton estate, and is owned by the defendants in the action, namely the Rt. Hon. Lord Somerleyton, Sir Nicholas Bacon and Mr Thomas Davies, as trustees of a Somerleyton family Settlement. In physical terms, Priory Marshes and Scale Marshes form a single area of marshland, divided by the A143. Indeed, prior to 1921 Priory Marshes formed part of the Somerleyton estate (Priory Marshes being, at that time, part of Scale Marshes). Adjoining Scale Marshes to the east is an area of land owned by Lord Somerleyton, on which is situated a lake known as Fritton Lake. The level of Lord Somerleyton's land is somewhat higher than that of Scale Marshes and Priory Marshes, so that rain and floodwater will flow naturally from it onto Scale Marshes, thence onto Priory Marshes and thence (subject to tidal levels) into the river. Hence I shall refer hereafter to Lord Somerleyton's land as "the Upper Land".
4. Running from east to west through more or less the centre of Scale Marshes, and (via a culvert under the A143) Priory Marshes, is a dyke called Mill Dyke. Mill Dyke leads directly to the river. To the South of Mill Dyke, and roughly parallel to it, is a dyke called Land Spring Dyke. (Land Spring Dyke once led directly to the river but at some time since 1983 (when Mr Green became the owner of Priory Marshes) the stretch of Land Spring Dyke nearest the river – i.e. on Priory Marshes – was filled in and the water diverted into Mill Dyke. Nothing, however, turns on this.) In addition, there are a number of smaller dykes, to which I need not specifically refer.
5. In December 1993, following a period of heavy rainfall, serious flooding occurred on Priory Marshes. It is common ground that some of that floodwater emanated from Scale Marshes and (via Scale Marshes) from the lake. Some further flooding of Priory Marshes has, it appears, occurred intermittently since then.
6. In the action, which was commenced in December 1999, Mr Green seeks declaratory relief directed at establishing liability on the part of the defendants (that is to say all three defendants in their capacity as owners of Scale Marshes and Lord Somerleyton in his capacity as owner of the Upper Land) for loss and damage caused by the December 1993 flood and by subsequent flooding. The primary declaration which Mr Green seeks is in the following terms:

"A declaration that the Defendants and each of them have no right to discharge water from Fritton Lake and/or [Scale Marshes] onto [Priory Marshes]".

7. A declaration is also sought relating to "eels or other contents of Fritton Lake or [Scale Marshes]".
8. Additionally, Mr Green seeks injunctions restraining the defendants and each of them from permitting water (or such "contents") to be discharged from Fritton Lake and/or Scale Marshes onto Priory Marshes. He also claims damages.
9. By his Re-Amended Particulars of Claim, Mr Green pleads primarily that Fritton Lake is not "present naturally" on the Upper Land; that it is a "reservoir" which Lord Somerleyton has at all material times "maintained"; that it is of such a size that it is reasonably foreseeable that water escaping from it is likely to damage Priory Marshes; and that Lord Somerleyton is accordingly liable for the damage to Priory Marshes caused by the flooding, under the rule in Rylands v. Fletcher (1868) LR 3 HL 330. The judge rejected that claim, and there is no appeal against that part of his decision.
10. Further or in the alternative, Mr Green claims against the defendants, as owners of Scale Marshes, in the tort of nuisance. Since there is now no live claim against Lord Somerleyton in his capacity as owner of the Upper Land, I shall refer to the defendants hereafter as "the Trustees".
11. The Trustees deny liability in nuisance and counterclaim for (among other things) a declaration that they are entitled to an easement of drainage of water from Scale Marshes into the dykes on Priory Marshes. Although the terms of the declaration sought may not make this entirely clear, their case is (and has been throughout) that they have an easement to use the dykes on Priory Marshes (that is to say, principally Mill Dyke) for the drainage of all water on Scale Marshes, including water which has emanated from the lake. By his Amended Reply and Defence to Counterclaim, Mr Green admits that the Trustees have an easement of drainage, but pleads that it is of a limited nature, and not such as to vest in them a general right to discharge water (including, in particular, water emanating from the lake) into the dykes on Priory Marshes.
12. By his order, made following the trial of the action, the judge dismissed Mr Green's claim and made the declaration sought by the Trustees on their counterclaim.
13. Mr Green appears on this appeal by Ms Caroline Hutton; the defendants appear by Mr Nicholas Caddick and Mr Alexander Learmonth. Neither Ms Hutton nor Mr Learmonth appeared at the trial.

THE PHYSICAL FEATURES IN MORE DETAIL

14. For a fuller understanding of the issues which arise on this appeal, some further detail is required of the physical features of the area in question.
15. I start in the east, with Fritton Lake. In his Report, prepared for the purposes of this action, Dr Williamson (the single joint expert witness on historical matters) describes Fritton Lake thus:

"Fritton Lake, also known as Fritton Decoy, is one of the 'broads' which form so distinctive a feature of the landscape of eastern Norfolk and north east Suffolk. These areas of water are all man-made features, mainly the consequence of medieval peat-digging. .... Fritton [Lake] reach[es] a depth of nearly six metres in places. In appearance it is different from most other broads, in that it is surrounded by well-wooded and steeply-rising land.... By the nineteenth century ... the lake had acquired other functions. It was already used for pleasure-boats and was exploited as a water source by the Lowestoft Gas and Water Company. .... In or around the 1950's a number of weirs were constructed across the three main outfalls at the lake's western end. These are very simple structures – no more than several wooden planks laid one above the other – which serve to maintain the water at around 0.6 metres above natural maximum level. In times of heavy rain the water runs over and around these obstacles. .... [T]he installation of these simple weirs did not impound the water to any very significant extent: they are not associated with any form of artificial dam of embankment. Their erection did not materially change the size of shape of the lake ...."

16. Later in his Report, Dr Williamson says this:

"Fritton Lake is artificial, in the sense that it is man-made. But it is not in any meaningful sense a 'reservoir' because it was not created to hold water but was instead, like a flooded gravel pit, an unintended side-effect of extraction. It is true that water has been regularly taken from the lake by the water company [a matter to which further reference is made below], and is still being extracted. It is also true that in the 1950s the level of water within the lake was artificially raised by c. 0.6 of a metre by the construction of weirs at the main western outfalls. But no artificial dams or embankments were created and the weirs simply maintain water within the lake at times of reduced inward flow, rather than control outflow at times of spate. .... I would emphasise that neither the creation of Fritton Lake in medieval times, nor the construction of weirs at its western end in the twentieth century, made any material difference to the line of natural drainage from the valley in which the lake lies, although these changes will certainly have reduced the amount of water flowing along the line of natural drainage at certain times of the year."

17. From Fritton Lake, going west, the ground slopes downhill until it reaches an area of wetland or "carr" ("the Carr Land"). Running through this area of sloping ground are a number of natural creeks and channels through which water from the Upper Land (including water overflowing from the lake) finds its way naturally onto the Carr Land.
18. Mr Colin Wright, the joint expert witness on drainage matters, states that, geographically, the whole catchment within the valley at the head of which lies Fritton Lake is in the order of 1780 ha. (4400 acres), of which some 1700 ha. (4200 acres) contributes to the lake. The remaining 80 ha. or thereabouts feeds directly into the lower-lying areas, including Scale Marshes and Priory Marshes.
19. Crossing the Carr Land in a broadly north-west/south east direction is a lane called Blocka Lane. At the point where Blocka Lane reaches approximately the centre of the Carr Land there is a ford. Running from the ford in a north-westerly direction, alongside Blocka Lane, is a dyke called the Blocka Run (also known as the Run Dyke). The Blocka Run continues in a north-westerly direction before turning westwards, away from Blocka Lane and continuing along the northern boundary of Scale Marshes and Priory Marshes until it reaches the river. From time immemorial until recent times (as to which, more later), water flowed down the Blocka Run and thence (via a tidal flap designed to prevent the incursion of salt water from the river) into the river.
20. Dr Williamson describes the Blocka Run thus (in Part 3 of his Report):

"This [i.e. the Blocka Run] was always more than a mere drainage ditch. It was a significant watercourse, carrying water from Fritton Lake to the river Waveney. .... Streams draining off the uplands, and across the marshes, always had sluices where they met the principal rivers, simple 'flap sluices' which enabled them to discharge at low tide, but which were held shut by the pressure of water at high tide. .... There is no real doubt that there had [sic] been a sluice here [i.e. where the Blocka Run met the river Waveney] since medieval times, preventing the penetration of tidal water up the [Blocka Run]. .... There is no doubt that the line of this watercourse has remained largely unchanged since early medieval times, for it is followed for its entire length by the parish boundary between Herringfleet and Fritton. .... The origins of the [Blocka Run] are not entirely clear. It is possible that it represents an entirely artificial channel, constructed when the marshes were drained as a replacement for this natural watercourse. On analogy with the situation elsewhere in the local marshes, however, it is more likely that it follows, more or less, the line of the natural watercourse, and in effect represents that watercourse, altered and improved to some extent at the time of reclamation. .... The [Blocka Run] thus represents either the original line of natural drainage from the valley in which Fritton Lake is situated; or an artificial watercourse of extreme antiquity..."

21. When the marshes were originally reclaimed in medieval times, a low embankment was constructed along the eastern bank of the river where it adjoins Priory Marshes. This embankment (which is still in existence) continues along the southern bank of the Blocka Run to the point at which the Blocka Run reaches the Carr land. At that point the embankment turns away from the Blocka Run and continues for a few yards in a south easterly direction.
22. It is common ground that when the Blocka Run was in use this last stretch of the embankment operated to intercept most of the water flowing into the Carr Land from the higher ground to the east (including Fritton Lake), and to divert it into the Blocka Run and (via the Blocka Run) into the river. I shall have to return to this.

THE RELEVANT DEEDS

23. As at 5 February 1921 Priory Marshes, Scale Marshes and the Upper Land were in the common ownership of the present Lord Somerleyton's grandfather, as part of the Somerleyton estate.
24. By a Conveyance dated 5 February 1921 ("the 1921 Conveyance") Lord Somerleyton's grandfather conveyed to a Mr Charles Mallett, by way of sale, Priory Farm (including Priory Marshes). The 1921 Conveyance was expressed to be:

".... subjected [sic] to and with the benefit of the provisions contained in a certain Deed of Covenant as to draining marshes of even date herewith executed by the parties hereto."

25. The Deed of Covenant there referred to ("the 1921 Drainage Deed") recites that Lord Somerleyton's grandfather was the owner of a "wind drainage mill" (i.e. a wind-operated drainage pump) situated at the point where Mill Dyke meets the river. (The site of this pump is not included in the land conveyed by the 1921 Conveyance: it accordingly remains part of the Somerleyton estate.) The 1921 Drainage Deed goes on to recite that the pump drained the water from Priory Marshes and from an area of land shown coloured blue on an annexed plan. We have not seen a copy of this plan, but it is accepted that the land coloured blue on it must have included Scale Marshes. However, without a sight of the plan it is not possible to ascertain whether the land coloured blue extended beyond Scale Marshes to include the whole or part of the Carr Land or the Upper Land.
26. The operative part of the 1921 Drainage Deed contained mutual covenants. Lord Somerleyton's grandfather covenanted on behalf of himself and his successors as owners of the pump at their own cost (and for so long as Mr Mallett and his successors observed and performed the covenants imposed on them) to keep the pump in proper working order, to replace it as required, and to:

"... work the same whenever requisite for the purpose of draining the said lands and effectually drain the same PROVIDED ALWAYS that the said Lord Somerleyton his heirs and assigns owner or owners for the time being of the said [pump] shall not be liable for any flooding of the said hereditaments or any damage thereto caused or necessitated by extraordinary floods or by the stoppage of the [pump] unless such stoppage shall occur by reason of his or their wilful neglect or default."

27. For his part, Mr Mallett covenanted on behalf of himself and his successors to pay to Lord Somerleyton's grandfather and his successors an annual drainage rate of a fixed amount of £7. 15. - , with a provision for variation of the amount of the rate by arbitration. Mr Mallett also covenanted, on behalf of himself and his successors:

".... at his or their own cost [to] stop up rat and mole holes and other holes in the river and marsh walls [i.e. the embankment] and banks upon [Priory Marshes] and also keep the said walls and banks in good and substantial repair and also cleanse and scour and keep cleansed and open and in proper order the [Blocka Run] the Mill Dyke and the Land Spring Dyke ...."

28. On 30 August 1929 Lord Somerleyton's grandfather conveyed the whole of Scale Marshes, the Carr Land and the Upper Land to the trustees of a family Settlement.
29. On 11 October 1954 a Mr John Henry succeeded Mr Mallett as owner of Priory Farm (including Priory Marshes).
30. On 12 May 1958 the settlement trustees and Mr Henry entered into a further Drainage Deed ("the 1958 Drainage Deed"), which was expressed to be in substitution for the 1921 Drainage Deed. The 1958 Drainage Deed recites that the settlement trustees had at their own expense installed a 4.5-5 ton automatic electric drainage pump on the approximate site of the original wind-operated pump and that the pump drew water from Priory Marshes and from Scale Marshes. In the operative part of the 1958 Drainage Deed, Mr Henry covenanted to work the pump:

".... whenever necessary for the purpose of drawing water from the marsh dykes and draining [Priory Marshes] and [Scale Marshes]",

and to pay for the electricity used by the pump. He also covenanted to be responsible for all repairs to the pump other than capital replacements. Covenant (d) by Mr Henry is in the following terms:

"Draw and keep clean the Main Drains [an undefined expression] running through the said Marshes .... so that the water level can if necessary be reduced to within six inches from the lowest level of the culvert under the [A143] and also that he will draw and keep clean and clear his half of the [Blocka Run] so as to prevent flooding of [Priory Marshes or Scale Marshes] Provided Always that Mr Henry shall not be held liable if such flooding is caused by the other part of the [Blocka Run] not having been kept clean and clear."

31. The 1958 Deed went on to impose on the settlement trustees an obligation to keep the pumphouse in good repair and at their cost to renew the pump if necessary. This obligation was expressed to be subject to two provisos which are of significance for present purposes. They are in the following terms:

"PROVIDED ALWAYS and it is hereby agreed that neither party shall be liable to the other party in respect of flooding arising from abnormal circumstances such as a breach in the River Wall or extraordinary rainfalls or the stoppage of the working of the [pump] caused otherwise than by the neglect or fault of the parties hereto .... PROVIDED ALSO that should either party consider that owing to factors arising during the passage of time the terms of this Deed are unfair and should be varied then in default of any agreement thereon between the parties hereto or in the case of any dispute arising out of the terms of this Deed or the performance thereof or as to the rights liabilities or duties of the parties hereto or otherwise .... touching the subject matter hereof such dispute shall be referred to a single arbitrator to be agreed upon by the parties hereto and in accordance and subject to the provisions of the Arbitration Acts 1889-1934 or any statutory modification thereof for the time being in force and in making his award by way of fixing new terms hereof or upon any such dispute such arbitrator shall consider among other things both the terms of this Deed and any measures necessary to ensure the proper and adequate drainage of both [Priory Marshes] and [Scale Marshes]."

32. I will refer hereafter to the first of the two provisos just quoted as "the exempting proviso".
33. Thus the 1958 Drainage Deed altered the arrangements contained in the 1921 Drainage Deed in two main respects. First, the 1958 Drainage Deed placed the responsibility for maintaining and operating the pump on Mr Henry and his successors (under the 1921 Drainage Deed that responsibility lay on the Somerleyton estate): hence under the 1958 Drainage Deed no drainage rate is payable to the Somerleyton estate. Second, the provision for arbitration in the 1958 Drainage Deed is in very much wider terms than the equivalent provision in the 1921 Drainage Deed, in that whereas the arbitrator's powers under the 1921 Drainage Deed were limited to varying the drainage rate, under the 1958 Deed his powers extend to fixing new terms: in effect, to reforming the arrangements as he sees fit, bearing in mind the terms of the existing arrangements and the need to "ensure the proper and adequate drainage" of Priory Marshes and Scale Marshes.
34. On 14 February 1964 Mr Henry conveyed Priory Farm (including Priory Marshes) to a company owned by him.
35. On 10 August 1973 the settlement trustees conveyed the Upper Land (which includes the Carr Land to the east of Blocka Lane) to the present Lord Somerleyton.
36. On 14 February 1984 Mr Henry's company conveyed Priory Farm (including Priory Marshes) to Mr Green. Thereafter, it is common ground that the arrangements set up by the 1958 Drainage Deed ("the 1958 drainage arrangements") continued in operation, with Mr Green operating and maintaining the pump. We understand that the pump is currently being replaced (at the Trustees' cost).

THE CONDITION OF THE BLOCKA RUN

37. According to a Drainage Study prepared by Mr Wright in 1994, the Blocka Run was last cleaned out in the early 1950's. The Study continues:

"Up until this time, it is thought that [the] Blocka Run was, in the main, self-cleansing under the natural flow of water through it but since the 1950s and the erection of the dams at Fritton Lake, the flow has decreased and this has had the effect of reducing the velocity of water passing through the dyke which has slowly silted up. The principle of the self-cleansing effects of [the] Blocka Run led to a situation where maintenance of the dyke was believed by Lord Somerleyton not to be required and the Blocka Run fell slowly into disrepair.

The flow of water into the River Waveney from the Blocka Run was previously controlled by a tidal flap valve maintained by a marshman, but this has silted up and is no longer usable without substantial repair/replacement, for which working in tidal waters would be necessary. Gales over the last 40 years have resulted in trees, bushes, etc. falling into and obstructing the dyke, which now merely serves to act as a storage channel. It holds water at a high level, flooding the [Carr Land] and the boggy peatland surrounding the dams at the western end of Fritton Lake ....

[The] Blocka Run and its sluice are effectively irrecoverable without considerable repairs and expense. .... repairs would include substantial tree clearance, regrading and desilting and replacement of the outfall in tidal waters. [The] Blocka Run no longer forms an integral part of the drainage system and merely serves as an amenity to the land immediately to the north."

THE ACTIVITIES OF THE LOCAL WATER COMPANY

38. In his Report, Mr Wright states (and it is common ground) that in the mid-1980s the Lowestoft Water Company was established at Lound, near the north-eastern end of Fritton Lake (the far end, for present purposes); that thereafter the water company extracted substantial amounts of water from Fritton Lake, under arrangements agreed between it and the Somerleyton estate; and that as a result of these abstractions the flow of water from Fritton Lake via the Upper Land onto the Carr Land was materially reduced. It is also common ground that this process of water abstraction, coupled with a period of comparatively dry summers, caused the Blocka Run to silt up through lack of use. In the late 1980s, however, water abstraction from Fritton Lake effectively ceased. By that time the Blocka Run was, as Mr Wright describes it (see above), effectively a storage channel.

THE JUDGE'S JUDGMENT

Findings of fact

39. The judge made the following material findings of fact, none of which is challenged on this appeal (although Ms Hutton invites us to make additional findings of fact which the judge did not make but, as she submits, should have made):

"The landscape, as most English landscape, is man-made. The lake [i.e. Fritton Lake] although probably natural in origin, had its present extent and contours determined by peat extraction in the Middle Ages or earlier" (judgment p.2C-D).

"In the winter of 1993 to 1994 the claimant's land was flooded by water flowing from the lake over Scale Marsh under the A143 and onto his land. It appears that this followed a combination of rainfalls together representing an event more remote than 1 in 25 years" (judgment p.3G-H).

"The flood was not cleared because the pump broke down. It was blocked by eels swept down by the water. So the breakdown may itself be said to have been caused by the exceptional weather. .... No fault has been proved in the breakdown" (judgment p.3H-4C).

The abstraction of water from Fritton Lake by the water company from the 1960s onwards had the effect of reducing any flow out of the lake. "At the end of the 1980s, however, and in the period immediately before the 1993 flood, abstraction had declined and the lake was already full at the time of the exceptional rains to which I have referred." (Judgment p.4F-G.)

The Blocka Run follows – approximately – the natural line of drainage down the valley (judgment p.8C). "It is an artificial watercourse of great antiquity. It is a dyke whose bed has been dug out and it has ..... been embanked over the years in the course of which the course has almost certainly been altered. It is protected from incursion by the tide by a tidal flap. Before such embankment and protection, [water] would have run to the river by various creeks through the marshes. Before the war, however, it ran through its banks as a free-flowing stream. As such, with modest maintenance it was self-cleansing. .... Certainly by the time at which the water company raised the weir on the lake in 1954 the [Blocka] Run was already described as "congested". Nonetheless, at the time of the [1958 Drainage Deed] it still operated as a watercourse" (judgment p.8B-F).

The Blocka Run is ".... within the ownership of the riparian owners which extended to the middle of the stream at those points where the stream divided the ownership of the adjoining land. Thus, [in 1958], half the width of [the] Blocka Run below the A143 down to the River Waveney was in the ownership of Mr Henry .... It is that part which the [1958 Drainage Deed] required him to keep clear. Above the A143, at least half the width was owned by the Somerleyton estate" (judgment p.8G-9B).

".... by the mid-1960's the tidal sluice on the claimant's section of the [Blocka] Run was blocked so that the Run no longer operated as a drainage channel from the lake" (judgment p.9B-C).

".... the first complete impediment to the functioning of the [Blocka] Run as a drainage channel, namely the silting up of the tidal sluice, occurred .... within the length which the claimant's predecessors had undertaken to maintain" (judgment p.12B-C).

Water flowing from the lake and over the Carr Land would, when the Blocka Run was operating, enter the Blocka Run. "Water crossing Blocka Lane would be intercepted by the [Blocka] Run .... and would be prevented from entering the lower drainage system in the marshes which feeds into Mill Dyke by the artificially raised ground level which protects the marshes from the Blocka Run [a reference to the embankment described earlier]." (Judgment p.9D-F.)

"... the consequence of the silting up of the Blocka Run [was] that any water from the catchment area of the valley, including the lake, which is not abstracted by the water company, finds its way onto [Scale Marshes] and thus onto .... Priory Marshes" (judgment p.10H-11A).

".... these areas [i.e. Scale Marshes and Priory Marshes] must, by reason of their level, at all times have been the natural receptor of such water as was not captured and retained by the embanked Blocka Run. Even when the [Blocka] Run was operative, there must have been some such water, whether because it made its way [along what] Mr Wright has described as its present route or because the [Blocka] Run had backed up when its tidal flap was closed or because it escaped to the marshes by seepage or leakage from the [Blocka] Run. It is .... for this reason that .... the marshes are marked on old maps as 'liable to flood' – not adjacent to the river but at their eastern end nearest to the lake. I accept that when the Blocka Run was operative these flows were small and the marshes played little part in the drainage of the catchment of the valley above Blocka Lane, which I will refer to as 'the upper catchment'. " (judgment p.11A-E).

"The reason .... why the marshes played so little part in the drainage of the upper catchment was the artificial embankment of the [Blocka] Run .... This itself became over the centuries more essential to the continuation of the drainage pattern because that pattern itself led to the drying out of the marshes and their consequent compaction and resulting reduction in level" (judgment p.11E-G).

Maintenance of the Blocka Run was "neglected by the owners of both marshes as the water company's level of water abstraction appeared to make the continued function of the [Blocka] Run unnecessary" (judgment p.12 A-B).

The overflow from Fritton Lake onto Scale Marshes which resulted in the flooding of Priory Marshes did not constitute an artificial watercourse or a diversion of the artificial course of the Blocka Run (judgment p.19B-C).

".... the damage to the claimant's land .... has at most been caused by the blocking of the artificial channel which enabled the lake water to escape without entering the claimant's land. The damage which the claimant's land has suffered is due to its own natural deficiency of being below the level of the catchment of the Fritton valley and of course also below the River Waveney so it is dependent upon pumping to relieve it of flooding from natural drainage" (judgment p.24A-C).

The 1958 Drainage Deed

40. Based on his findings of fact, and in particular his findings that the December 1993 flooding arose out of "the abnormal circumstances of extraordinary rainfalls and the consequent stoppage of the [pump] caused otherwise than by any proven neglect of the parties" (judgment p.12D-E), the judge concluded (at p.12D) that it was "beyond argument" that the exempting proviso in the 1958 Drainage Deed (quoted earlier) applied, with the consequence that there was no liability on the defendants under the 1958 Drainage Deed for any resulting loss and damage suffered by Mr Green.
41. The judge then went on to consider the rights and liabilities of the parties outside the terms of the 1958 Drainage Deed, noting that it was common ground that since Mr Green was not a party to the 1958 Drainage Deed he would no longer have to assume the burden of the arrangements for which it provided if he chose not to accept the benefit of those arrangements. He turned first to the defendants' claim to an easement.

The Trustees' claim to an easement

42. Before the judge, the Trustees contended primarily for an easement impliedly reserved (alternatively regranted) by the 1921 Conveyance. In the alternative they contended for an easement by prescription, applying the doctrine of lost modern grant. The easement contended for is, as I indicated earlier, an easement of drainage through the dykes on Priory Marshes of water (including water emanating from the lake) flowing along the dykes on Scale Marshes and through the culverts under the A143.
43. In paragraph 2.6 of his Reply and Defence to Counterclaim (settled by Mr John Ross Martyn, who appeared for Mr Green at the trial) Mr Green pleads as follows:

"By way of implied reservation under the provision in the 1921 Conveyance which referred to the 1921 [Drainage] Deed there was reserved to the owner of the [wind-operated pump] an easement to draw water by pumping operations from the blue land to the site of the [pump] through [Priory Marshes], and thereby to drain [Scale Marshes]. The easement reserved was not a general and unrestricted one to discharge water from the [Scale Marshes] onto [Priory Marshes]. Further and in any event, neither the 1921 Conveyance nor the 1921 [Drainage] Deed nor both of them together created any easement to drain Fritton Lake through [Priory Marshes]." (My emphasis.)

44. As I understand it, it is the words in italics in the above quotation which raise the true issue between the parties on this aspect of the case, viz. whether the Trustees' (admitted) easement extends to water flowing from Scale Marshes onto Priory Marshes which has emanated from the lake. In the course of argument on this appeal, Ms Hutton made it clear that if she had drafted the Reply and Defence to Counterclaim she would not have admitted the existence of any implied easement, but she did not seek to withdraw the admission or otherwise to amend the pleading.
45. As to the claim to an easement by prescription, Mr Green pleads (in paragraph 2.8 of his Amended Reply and Defence to Counterclaim):

".... if, which is denied, the defendants and their predecessors in title have acquired any easement of drainage by prescription, it is an easement to draw water by pumping operations from [Scale Marshes] to the site of the [pump] through [Priory Marshes], and thereby to drain [Scale Marshes]. It is not a general and unrestricted easement to discharge water from [Scale Marshes] onto [Priory Marshes]. Further and in any event, it is not an easement to drain Fritton Lake through [Priory Marshes]." (My emphasis.)

46. So the alternative claim based on the doctrine of lost modern grant raises the same issue as to the extent of any easement.
47. After referring to the terms of the 1921 Drainage Deed, the judge concluded (at p.15B) that "the implied easement of drainage must .... in the absence of express words, include whatever water is or may be naturally on [Priory Marshes and Scale Marshes]". He continued:

"How else could they be drained? How can the working of the [pump] not be "requisite" to draining the area of such water as is naturally on it, irrespective of any potential diversion if, as a matter of fact, that potential is not realised [a reference to the unusable Blocka Run]? My analysis of the evidence as to the drainage system shows that but for the artificial embankment of the [Blocka] Run the water naturally in the marshes would include water draining from the upper catchment.

[Priory Marshes] is in exactly the same position as regards water from the River Waveney which but for the river walls would likewise naturally be found on the marsh as a result of incursions from the River Waveney. The [1921 Drainage Deed] therefore contains a covenant by Mr Mallett to maintain the river walls. He also obliged himself to in terms similar to those repeated in the 1958 Drainage Deed to keep the [Blocka Run] cleansed and in proper order. No such obligation, however, was imposed on the vendor or the owner of [Scale Marshes] although works on [Scale Marshes] could maintain the embankments which separated the drainage systems. I accept that the owner of [Scale Marshes] would not be entitled to introduce water into the marsh dykes, for example, by diverting either its natural flow or an artificial watercourse. However, in the absence of any obligation, express or implied, to maintain the artificial watercourse [i.e. the Blocka Run] I see no reason why the implied easement of drainage, which it is agreed must necessarily be implied, should not apply to whatever water arrived naturally upon [Scale Marshes]. For these reasons, I conclude that the effect of the 1921 Conveyance is that [Scale Marshes] does have attached to it an easement of drainage into the dykes on the claimant's land including the Mill Dyke of such water as arrives on [Scale Marshes] naturally, including any outflow from the lake."

48. The judge then turned, for completeness, to the alternative way in which the defendants' put their claim to an easement, based on the doctrine of lost modern grant. At p.16D of the judgment, the judge expressed himself as not satisfied that the doctrine was applicable in the instant case, since in his judgment (and applying dicta of Eve J in Honey v. Siversprings Bleaching and Dyeing Co Ltd [1992] Ch 268 at 281) the user relied on by the defendants in support of a prescriptive right lacked the requisite degree of certainty and uniformity for the establishment of such a right. In this connection the judge observed (at p.16E) that it was not clear that, while the Blocka Run was still in operation, "anything other than the smallest percolation occurred because most water which would otherwise have flowed [into] the [Blocka] Run was abstracted by the water company".
49. By a Respondents' Notice, the Trustees assert (in case it may be necessary for them to do so) that the judge was wrong to reject this alternative basis for the claim to an easement.
50. The judge then went on to consider the position in the absence of any relevant proprietary right vested in the defendants. He turned first to the Rylands v. Fletcher claim, rejecting it on the facts. As noted earlier, this part of the judge's decision is not appealed and I can accordingly move on to the claim in nuisance.
51. In support of the claim in nuisance, Mr Ross Martyn (for Mr Green) relied strongly – as does Ms Hutton before us – on the decision of this court in Leakey v. The National Trust [1981] QB 485 ("Leakey"). It was argued on behalf of Mr Green that, applying Leakey, the Trustees owed Mr Green a duty to take reasonable steps to prevent Priory Marshes being flooded as a result of water emanating from the lake flowing from Scale Marshes through the culverts under the A143 and onto Priory Marshes, and that they had breached that duty.
52. The judge concluded, relying on Thomas & Evans Ltd v. Mid-Rhondda Co-operative Society [1941] 1 KB 381 ("Thomas") and on the Australian case of Elston v. Dore (1982) ALR 577 ("Elston"), that no 'Leakey duty' (if I may so describe it) arises in relation to the natural flow of water, and that accordingly no such duty arose in the instant case. As the judge put it (at p.24E):

"The natural flow is not, I think, therefore, to be regarded as a hazard which would bring into play the duty of care held to arise in Leakey's case."

53. Despite that conclusion, the judge nevertheless went on to consider whether, on the assumption that a Leakey duty arose in the instant case, the Trustees had breached such duty. He concluded that they had not. He expressed his conclusion thus (at pp.25F-26B):

"Although in 1958 the parties no doubt expected the upper catchment to continue to drain at least predominantly through the artificial channel of the [Blocka] Run, they were clearly aware of the propensity of the marshes to flood and the necessity to drain [Scale Marshes] into [Priory Marshes] and thus to pump water into the river. They made what seemed to the then parties a reasonable apportionment of responsibility. The owner of [Scale Marshes] was to provide the pump and replace it if need be. The owner of [Priory Marshes] was to operate the pump. If circumstances changed, then the procedure for reconsidering responsibility was set out. In my judgment, the owners of [Scale Marshes] are entitled to rely on this agreement [i.e. the 1958 Drainage Deed] as a discharge of their duty of care if it arose, notwithstanding the easement of drainage which I have held to exist."

54. By their Respondent's Notice, the Trustees rely on a number of other factors as supporting the judge's conclusion on this aspect of the case.
55. Finally, the judge noted that in the course of giving evidence Mr Green had suggested that he had offered to clear his part of the Blocka Run. As to that, the judge said this (at p.26D-E):

"The terms and timing of such offer were vague in the extreme. There may be terms which if formally and clearly proposed would be unreasonable for the defendant[s] to refuse. Any such proposal is, however, in my judgment, best considered in the course of an application to vary the terms of the 1958 Drainage Deed on the ground that 'owing to factors arising during the passage of time it has become unfair'."

THE GROUNDS OF APPEAL

56. Mr Green challenges the judge's decision on two grounds (section 7 of Mr Green's Appellant's Notice contains a further ground of appeal which was not pursued before us). Firstly, he asserts that in concluding that the 1921 Conveyance impliedly granted an easement of drainage which entitled the defendants to drain through the dykes on Priory Marshes water emanating from Fritton Lake the judge misconstrued the 1921 Conveyance and the 1921 Drainage Deed. Secondly, he challenges the judge's conclusion that he has no remedy in the tort of nuisance, asserting in particular that the judge was wrong to conclude that no Leakey duty arose in the instant case.

THE RESPONDENT'S NOTICE

57. As already mentioned, by a Respondent's Notice the Trustees assert (as additional reasons for upholding the judge's decision) firstly that the judge was wrong to reject their alternative claim to an easement, based on the application of the doctrine of lost modern grant; and secondly that there are a number of additional factors (listed in the Notice) which support the judge's conclusion that if a Leakey duty arose in the instant case, they have not acted unreasonably and accordingly have not breached that duty.

THE ARGUMENTS ON THE APPEAL

The arguments for Mr Green

58. Ms Hutton begins by pointing out that Mr Green's claim is in respect of a continuing nuisance. She refers us to paragraph 11 of the Re-Amended Particulars of Claim, which pleads that:

"…. from on or about 26 December 1993 water from Fritton Lake has continued to escape therefrom onto [Scale Marshes] from where it has continued to escape onto [Priory Marshes] damaging the same". (Emphasis supplied.)

59. She also refers us to the pleaded particulars of loss and damage, which include items of damage relating to the period from the beginning of 1994 until the commencement of the action. For example, £3,311.61 is claimed in respect of the cost of the electricity required to operate the pump during that period. It is to be noted, however, that no particulars of subsequent occurrences of flooding are pleaded.
60. Turning to the physical features on the land, by way of preamble to her submissions on the law, Ms Hutton submits that in 1921 there were, in effect, two separate systems of drainage in operation. She identifies one such system as relating to the drainage of what the judge called the 'upper catchment area' (which includes Fritton Lake), the judge's finding being that most of the water from that area was caught by the embankment where it extends across the northern part of the Carr Land and drained into the river via the Blocka Run. (She accepts, however, as she has to on the judge's findings, that not all the water from the 'upper catchment area' found its way into the Blocka Run.) The second system of drainage, on her analysis, related to the drainage of Scale Marshes and Priory Marshes through the various dykes (principally the Mill Dyke and, in 1921, the Land Spring Dyke). That situation, she submits, is to be contrasted with the situation which existed in December 1993, when, by virtue of the fact that water could no longer flow down the Blocka Run, there was in effect only one system of drainage for the entirety of Priory Marshes, Scale Marshes and the Upper Land. That, she submits, is the starting-point for a consideration of the issues of law which arise.
61. As to the judge's findings, she does not seek to challenge the findings which he made, but she submits that he should have made a further finding to the effect that by 1993 it was reasonably foreseeable by the Trustees, who were fully aware that the water company had by then ceased to abstract water from Fritton Lake, that if nothing were done to clear the Blocka Run floodwater emanating from the Upper Land would cause flooding on Priory Marshes.
62. As to the existence of a Leakey duty, Ms Hutton submits that the duty arises in relation to naturally flowing water as it does in relation to water the flow of which has been artificially diverted. She submits that in so far as Thomas decided otherwise, it cannot be reconciled with Leakey and must now be treated as having been wrongly decided. As to the Australian authority Elston, on which the judge placed reliance, she submits that that case provides support for her submission in that in Elston water was penned back by the defendant, thereby causing flooding on the claimant's land; hence the defendant in that case had caused an interruption to the natural flow of water from the claimant's land. In the instant case, she submits, the Blocka Run is (on the judge's findings) an artificial channel, and in allowing it to become blocked the Trustees are in essentially the same position as the defendant in Elston. Ms Hutton also relies in this connection on Rees v. Skerrett [2001] 1 WLR 1541 and Abbahall Ltd v. Smee [2002] EWCA Civ 1831 ("Abbahall"), both decisions of this court. She submits that a Leakey duty of care arises where a defendant removes an artificial feature of the landscape which operates as flood protection. That, she submits, is effectively what the Trustees did in the instant case in failing to keep their stretch of the Blocka Run clear. She also relies on the decision of this court in Holbeck Hall Hotel Ltd v. Scarborough Borough Council [2000] QB 836 ("Holbeck Hall") as an example of a case where a duty of care arose where the damage complained of was caused by natural forces.
63. As to breach of the Leakey duty by the Trustees, she submits, relying on Marcic v. Thames Water Utilities Ltd [2002] QB 929 CA ("Marcic"), that the evidential burden of proving that they acted reasonably lies on them: she submits that the principle res ipsa loquitur applies in the instant case. She submits that the Trustees have not discharged this evidential burden, since they have not shown that they took any steps at all to prevent the flooding which occurred. She submits that, leaving aside the possibility of clearing out their stretch of the Blocka Run, the Trustees could have installed a larger pump, or perhaps have persuaded the water company to resume the abstraction of water from Fritton Lake. They might also have prevented the flooding by constructing some entirely new system of drainage. She accepts that the judge made no findings on this aspect of the case, but submits that he should have done. In any event, she submits, the absence of findings does not prejudice Mr Green's case, since the evidential burden of proof lay on the Trustees.
64. As to the easement claimed by the Trustees, Ms Hutton submits that, given the existence of what she describes as the two separate systems of drainage in operation in 1921 (see above), there is no basis for implying into the 1921 Conveyance the reservation of an easement which extends to water emanating from Fritton Lake. In any event, she submits that pre-1925 the law did not allow the implication of a reservation in a conveyance, and that the equitable device of implying a regrant by the purchaser cannot aid the Trustees in the instant case since there is no evidence as to whether Mr Mallett executed the 1921 Conveyance.
65. As to the alternative basis on which the Trustees claim an easement (lost modern grant), Ms Hutton submits, relying on Palmer v. Bowman [2000] 1 All ER 22 CA, that the natural flow of water is an incident of the ownership of the land, and as such is not capable of being the subject-matter of an easement. She further submits that no easement can have arisen under the doctrine of lost modern grant since the flow of water emanating from the lake onto Priory Marshes has, over the years, been too uncertain and intermittent to provide a sound basis for the application of the doctrine. She accordingly supports the judge's rejection of this alternative basis of claim.

The arguments for the Trustees

66. Mr Caddick submits that we should be extremely cautious about revisiting any of the judge's findings of fact, bearing in mind the obvious care with which he considered and evaluated the expert evidence. In particular, he reminds us of the judge's findings that the Blocka Run, even when in full working condition, did not account for the entirety of the water emanating from what the judge called the 'upper catchment area' (judgment p.11B); that the eastern end of Scale Marshes has always been liable to flood (ibid. p.11C-D); and that Scale Marshes and Priory Marshes are "the natural receptor of such water as was not captured and retained by the embanked Blocka Run" (ibid. p.11A-B).
67. So far as damage to Priory Marshes caused by the December 1993 flood is concerned, Mr Caddick submits that although Mr Green was not a party to the 1958 Drainage Deed nevertheless he effectively adopted the 1958 drainage arrangements by working and maintaining the pump (the site of which, it will be remembered, remains part of the Somerleyton estate). He submits that for so long as Mr Green accepts the benefit of the 1958 drainage arrangements, he is also subject to the burden of them.
68. Turning then to the terms of the 1958 Drainage Deed, Mr Caddick submits that the exempting proviso affords a complete defence to Mr Green's claim in respect of the December 1993 flood. Given the judge's findings (judgment p.3H-4C) that the cause of that flood was the blockage of the pump and that no neglect had been proved, the exempting proviso operated to exclude any liability of the Trustees in respect of the December 1993 flood which might otherwise have existed.
69. Mr Caddick accepts, however, that that conclusion does not resolve entirely the dispute between the parties. He agrees with Ms Hutton that in the circumstances it was necessary for the judge to address the issue as to the parties' rights and liabilities in relation to flooding and drainage otherwise than under the 1958 drainage arrangements.
70. As to the allegation of a continuing nuisance (see paragraph 11 of the Re-Amended Particulars of Claim, referred to earlier), Mr Caddick points out that the claim in respect of subsequent flooding has never been particularised; and that, apart from the suggestion that the Trustees should have taken steps to clear their stretch of the Blocka Run, at no stage has Mr Green indicated what steps he contends the Trustees should have taken with a view to minimising the risk of damage to Priory Marshes by flooding. As to the judge's reference at the end of his judgment to a suggestion by Mr Green that he would be willing to clear his stretch of the Blocka Run, Mr Caddick tells us that that suggestion was made for the first time after the dispute had arisen.
71. Turning to the law, Mr Caddick submits that no Leakey duty arises in relation to naturally flowing water. He relies for this proposition, as he did before the judge, on Thomas and on Elston. He submits that in Elston the High Court of Australia was right to conclude that Thomas is authority for the proposition that there can be no liability in nuisance in respect of naturally flowing water, and that Megaw LJ was in error when, in Leakey, he characterised Thomas as a case in which a duty of care had arisen but had not been breached. Whilst acknowledging that the thrust of recent authority has been towards the establishment of a general duty to act reasonably towards one's neighbours, he submits that Thomas remains good law. He also relies in this connection on the Canadian case of Loring v. Brightwood Golf & Country Club Ltd. (1974) 44 DLR (3d) 161.
72. In the alternative, on the footing that Thomas is inconsistent with Leakey, Mr Caddick submits that for liability in nuisance to arise there must have been some invasion of or interference with the enjoyment of the claimant's land, and that no liability in nuisance can arise where land is simply returned to its natural state. Thus, he submits, Elston establishes that for liability in nuisance to arise in relation to naturally flowing water there must at the very least have been some interference with the natural flow of the water, and in the instant case there has been no such interference. He points to Home Brewery Co Ltd v. William Davis & Co [1987] QB 339 ("Home Brewery") and Bybrook Barn Centre Ltd v. Kent County Council [2000] CA (unreported) ("Bybrook") as cases in which there was an element of man-made interference with the natural flow.
73. Mr Caddick further submits that if (contrary to his submissions) the Trustees were under a Leakey duty, they nevertheless discharged that duty.
74. In the first place, he joins issue with Ms Hutton's submission (based on Marcic) that the principle res ipsa loquitur applies in the instant case, with the consequence that the evidential burden is on the Trustees to prove that they have acted reasonably. He points out that in Marcic sewage was escaping into the claimant's cellar from the defendant's premises, so that it is easy to see why in such circumstances the Court of Appeal concluded that the burden was on the defendant to prove that he had acted reasonably in allowing that to happen. By contrast, he submits, the principle res ipsa loquitur can have no application in relation to naturally flowing water.
75. Mr Caddick supports the judge's conclusion that the 1958 drainage arrangements represented a reasonable apportionment of responsibility in meeting a common problem. He also points to the further factors listed in the Respondent's Notice as negativing any breach of duty by the Trustees. Those factors are:

that the principal reason why the Blocka Run fell into disuse was the abstraction of water from Fritton Lake by the water company in exercise of its statutory powers;

that the Trustees might reasonably rely on the water company to deal with potential problems;

that Mr Green had not maintained his part of the Blocka Run (nor, for that matter, had the other riparian owners);

that the Blocka Run, when in use, intercepted what the judge found to be the natural flow of water;

that the Trustees had no reason to apprehend that the pump was going to fail;

that the clearing of the Blocka Run would be disproportionate in terms of cost to the damage likely to be caused to Priory Marshes by intermittent flooding;

that the person primarily responsible for protection Priory Marsh from flooding was and is Mr Green himself;

that Priory Marsh is, as the judge found, inherently liable to flooding; and

that as Mr Green's interest in Priory Marshes is a commercial one, it is the less reasonable to expect the Trustees to expend money on preserving that interest.

76. As to the implied easement which the judge found to exist, Mr Caddick submits that the 1921 Drainage Deed makes clear that the parties intended that water on Scale Marshes be drained through the dykes on Priory Marshes, and he submits that there is no justification for concluding that the parties intended that this should not apply equally to water emanating from the Upper Land. Hence, the provision in the 1921 Conveyance which effectively incorporated into the 1921 Conveyance the benefit and burden of the covenants in the 1921 Drainage Deed must, he submits, have been effective impliedly to reserve to the vendors (alternatively, impliedly to regrant to the vendors) an easement of drainage of such water through the existing dykes on Priory Marshes.
77. Alternatively, Mr Caddick submits that the judge's rejection of the prescriptive claim, based on the doctrine of lost modern grant, was wrong. He submits that the judge's findings of fact are sufficient to found such a prescriptive claim. Thus, the judge found that even when the Blocka Run was fully operational some water from the lake flowed naturally onto Scale Marsh and thence onto Priory Marsh. He further found that, when the Blocka Run was out of use, virtually all the overflow from the lake would have flowed over Scale Marsh and Priory Marsh, in addition to other water flowing onto Scale Marsh.

CONCLUSIONS

Liability in nuisance (absent any easement)

78. In Leakey, this court held that an occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is natural or man-made (the "hazard" in Leakey being an unstable mound of earth which was present on the land not as a result of any human action or activity on the land). As to the nature and extent of such duty of care, Megaw LJ said (at ibid. p.524D-E):

".... the nature and extent of the duty is explained in the judgment in Goldman v. Hargrave [[1967] 1 AC 645] at pp.663, 664. The duty is a duty to do that which is reasonable in all the circumstances."

79. Before I address directly Mr Caddick's submission that the Leakey duty does not arise in relation to "naturally flowing water", there are four introductory points I would wish to make.
80. In the first place, the Leakey decision itself has been subjected to detailed analysis in a number of subsequent authorities (see, for example, the House of Lords decision in Delaware Mansions Ltd v. Westminster County Council [2002] 1 AC 321 HL ("Delaware"), the decisions of this court in Holbeck Hall, Bybrook and Abbahall, and the decision at first instance in Home Brewery). In the circumstances, it would be both inappropriate and unwise for me to attempt to travel the same ground, beyond the extent necessary to address Mr Caddick's submission based on Thomas. For the purposes of this judgment, therefore, I shall take as read the relevant passages in those authorities.
81. Secondly, the expression "naturally flowing water" is capable of bearing more than one meaning. In the context of Mr Caddick's submissions, I take it to mean not simply water flowing in its natural direction (i.e. downhill) but water flowing downhill in "natural" surroundings, or, at the very least, over a "natural" surface. But in the English landscape – most of which (as the judge rightly pointed out at p.6C of the judgment) is man-made – the distinction between "natural" features and those which are "artificial" in the sense that they owe something to human agency may not be an easy one to draw. Take the Blocka Run, for example. The judge found that the Blocka Run to be "an artificial watercourse of great antiquity" which follows, albeit approximately, the natural line of drainage down the valley. For all I know, the same might be said of the river Waveney itself, in the sense that it may over the centuries have altered course to some degree as a result of the clearing of primeval forest and the advent of agriculture. Similarly, the evidence before the judge was that the drainage of the marshland via the Blocka Run, coupled with the abstraction of water from Fritton Lake, had had the effect of drying out the marshland so that its level fell even further. So what at first glance may appear as a wholly "natural" feature of the landscape may, on further examination, turn out to owe something to the intervention of man. To my mind, therefore, in the context of the English landscape a distinction between "natural" and "artificial" features is an inherently uncertain foundation on which to rest a decision as to the existence of liability in nuisance.
82. Thirdly, in considering whether a Leakey duty exists in any particular case it is to be borne in mind that, like a tortious duty of care, a Leakey duty does not exist in the abstract. A claimant suing for breach of a Leakey duty must show "that the duty was owed to him and that it was in respect of the kind of loss which he has suffered" (see Banque Bruxelles SA v. Eagle Star [1997] AC 191 at 211G-H per Lord Hoffmann, in the context of the tortious duty of care). So whilst the question whether, on Leakey principles, liability in nuisance exists in any particular case may logically be approached by asking firstly whether a Leakey duty arose, secondly, if so, whether it was breached, and thirdly what damage resulted from the breach, the overall question is whether the loss claimed is a loss for which, on Leakey principles, the claimant is entitled to compensation (see ibid. p.211B).
83. Fourthly, in Delaware (a case concerning encroaching tree roots) Lord Cooke of Thorndon said (at para 34):

"If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree."

84. If reasonableness between neighbours is the key to the solution of problems concerning encroaching tree roots, I can see no reason in principle why it should not also be the key to the resolution of a dispute such as has arisen in the instant case. The more so because I cannot draw any sensible distinction in this respect between unreasonably allowing fire to escape onto a neighbour's land (the situation in Goldman v. Hargrave, where the defendant was held liable for the resulting damage) and unreasonably allowing floodwater to do so.
85. Likewise, in L. E. Jones Ltd v. Portsmouth City Council [2003] 1 WLR 427 (another case concerning encroaching tree roots) Dyson LJ said (at p.431):

"In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard which constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to exercise that control so as to remove the hazard."

86. I can see no reason in principle why that basis of liability should not apply to floodwater as to tree roots.
87. Accordingly, in principle I would not be astute to find an exception to the Leakey duty in respect of "naturally flowing water" unless, as Mr Caddick submits, Thomas clearly establishes the existence of such an exception.
88. In Thomas, the defendants were tenants of shop premises which were situated between the highway on one side and the river Rhondda on the other. On the opposite side of the highway lay land belonging to the plaintiffs. The local authority had, with the freeholder's permission, erected a wall along the river bank at that point to protect the shop premises and the highway from flooding. The defendants wished to alter their premises by pulling down part of the wall and replacing it with the outside wall of a new building. Having obtained the freeholder's consent, the defendants began the works. They pulled down part of the wall and started to erect the new building, but the wall of the new building did not extend to the full length of the stretch of wall which they had pulled down, so that small gaps were left at either side. That was the state of the works when the river overflowed its banks. Floodwater flowed through the gaps, over the defendants' premises, across the highway and onto the plaintiffs' land. The plaintiffs claimed damages in negligence and in nuisance.
89. The county court judge concluded that the defendants had not been guilty of negligence. The issue then arose whether the defendants were under a duty at common law to take reasonable care in carrying out their building operations to avoid unnecessary damage to their neighbours. The county court judge held that they were, and that they had breached that duty by allowing gaps to be created in the wall. He awarded damages accordingly. The defendants appealed, contending that they were under no common law duty to maintain the wall. The plaintiffs contended that as occupiers of adjoining property they were entitled to the protection of the wall, and that the flow of water through the gaps in the wall was an interference with their rights. The Court of Appeal allowed the defendants' appeal.
90. The leading judgment was given by Sir Wilfred Greene MR. In the course of his judgment, he said this (at p.389):

".... [T]he case can be conveniently considered by taking, first of all, the position as it would have been if the demolition of the wall had been carried out by the freeholder, he being, for the purposes of this consideration, in occupation of the premises. The wall had been constructed upon his land under an agreement with the local Board, under which they were entitled to object to his removing it. He agrees with the local Board that for certain purposes he shall be entitled to remove it, and he does remove it. What right can that possibly give the respondents? They had no right to call upon Mr Idris Williams [the freeholder] or anybody else to erect a wall upon this land for the purpose of protecting their property. If Mr Idris Williams, for his own purposes, with or without the assistance and co-operation of the local Board, chooses to erect such a wall, on no principle of law known to me would a third person be entitled to insist on its continued existence. If this wall had been erected by the freeholder and taken down by the freeholder the next day, or a week, or a year afterwards, with the result that the floodwater took the course which it would have taken if the wall had never been there, I cannot see, on any principle known to me, that the respondents would have been entitled to complain. If it were not so, a person, in putting up a defensive work on his own land, would act at his peril, because by the mere fact of erecting it he would be conferring upon his neighbours, or persons in the neighbourhood, rights to insist that he should never remove the wall or building that he had put up. Such a doctrine, in my opinion, finds no support in any principle of our law. If the learned county court judge had considered the implications of his decision and had approached the matter from the angle of the rights of the respondents, rather than from the angle of the alleged carelessness of the appellants, I cannot help thinking that his decision would have been different from what it was." (My emphasis.)

91. Later in his judgment, Sir Wilfred Greene MR said this (at p.392):

"In the argument based on nuisance Mr Sandlands [for the respondents] submitted that the appellants, in pulling down this wall without proper excuse, caused water to flow on to their own premises, which ought not to have been there, whence it escaped to the damage of the plaintiffs. He said that the presence of the gap was an artificial work, and by means of that artificial work water was allowed to escape in the way that it did. I am afraid that the conception of these gaps as artificial works is one which my mind is unable to grasp. The assertion that the appellants pulled down the wall unlawfully, that is to say in its broader meaning, without proper excuse, really begs the whole question. Mr Sandlands also used the word "unlawfully" in a narrower sense, that is to say as meaning that the appellants exceeded the terms of their licence and therefore committed a trespass, which is what he contended in his argument on the question of negligence. I have already dealt with that and I do not propose to add anything to what I have already said, but why the pulling down of the wall was in the broader meaning of the term unlawful, I am afraid I am unable to appreciate. Mr Sandland endeavoured to suggest that the existence of these gaps, or the existence of what was left of the wall, coupled with the gaps, had in some way caused the flood water to flow in a direction, or volume, in which it would not have otherwise have flown. He suggested that the real complaint might be that the appellants had placed an artificial obstruction or maintained an artificial obstruction, on the banks of the river consisting of the front of their new buildings which, when taken in conjunction with the gaps, caused water to flow in a way in which it would not otherwise have flown. If any such case could have been made, it would have been a case on which evidence would have been required. It was not suggested that there was a particle of evidence in support of it, and it would be impossible for this Court, or any other court, to decide a matter which is fundamentally a matter of fact without having the necessary evidence before it. I accordingly dismiss that point.

Mr Sandlands, in the course of his argument, referred to a range of authorities from St.Helens Smelting Co. v. Tipping (I) to Donoghue v. Stevenson (2), and from Rylands v. Fletcher (3) to Sedleigh-Denfield v. O'Callaghan (4). I do not find in the general observations which he culled from some of the judgments and opinions in those cases anything which assists me to accept any of his arguments. The general observations in question must, of course, be read in the light of the facts of the cases to which they related. As it seems to me, the simple ground for deciding this case is that the respondents had no right to have the wall erected, they had no right to insist on its continuance, they had no ground of complaint whatsoever against anybody who rightfully took it down, and the appellants in this case rightfully took it down under their licence from the freeholder." (My emphasis.)

92. Sir Wilfred Greene then turned to the Court of Appeal decision in Nitro-Phosphate and Odam's Chemical Manure Co v. London and St Katharine Docks Co 9 Ch D 512, on which the county court judge had relied, which concerned a sea-wall. Sir Wilfred Greene MR concluded (at p.394) that nothing in that case afforded support:

"... for the proposition that where the riparian owner of land on a non-tidal river erects a wall for his own purposes, for the protection of his own land, a person owning land behind him is entitled to require that he shall never thereafter remove it, or any part of it."

93. Clauson and Goddard LJ agreed with Sir Wilfred Greene MR.
94. In Leakey, Megaw LJ said this about the decision in Thomas (at p.522E-F):

"The decision of this court in Thomas .... is not to be explained on the basis of some special principle of "naturalness" applicable to the digging of minerals on one's own land. That was a case of flooding from a river. But the decision itself, it appears to me, can be justified without any inconsistency with the Goldman v. Hargrave .... development of the law. There was nothing whatever which could be described as unreasonable, bearing in mind that an occasional flood in the river was foreseeable, in the defendants taking down an old protective wall on their own land in order to rebuild it. The fact that a flood happened to come before the wall was completely rebuilt could not, on any view, of itself give rise to liability on the defendants. But the potential liability of an owner or occupier to his neighbours for the overflow of a stream from his land on to their land does, indeed, give rise to possible injustice. To this I shall return later."

95. Megaw LJ returned to this subject in the context of the defendant's duty "to do that which is reasonable", with particular reference to the relevance of the parties' means in setting the relevant criteria, saying (at p.526G):

"Take, by way of example, the hypothetical instance which I gave earlier: the landowner through whose land a stream flows. In rainy weather, it is known, the stream may flood and the flood may spread to the land of neighbours. If the risk is one which can readily be overcome or lessened – for example by reasonable steps on the part of the landowner to keep the stream free from blockage by flotsam or silt carried down, he will be in breach of duty if he does nothing or does too little. But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, "You have my permission to come on to my land and do agreed works at your expense"; or, it may be, "on the basis of a fair sharing of expense". In deciding whether the landowner has discharged his duty of care – if the question were thereafter to come before the courts – I do not think that, except perhaps in a most unusual case, there would be any question of discovery as to means of the plaintiff or the defendant, or evidence as to their respective resources. It may be that in some cases the introduction of this factor may give rise to difficulties to litigants and to their advisers and to the courts. But I believe that the difficulties are likely to turn out to be more theoretical than practical."

96. I must now turn to the decision of the High Court of Australia in Elston. The facts in Elston were, essentially, as follows. Drains had been cut on the respondent's land, through which water drained from the adjoining land of the appellants. However, that was not the natural direction of drainage: absent the drains, water would not have flowed onto the respondent's land from the appellants' land. The respondent blocked one of the drains. As a result, the appellants' land was rendered more susceptible to flooding than if the area had remained in its natural state. The appellants claimed damages in nuisance. The High Court of Australia held that the respondent was not liable in nuisance, on the ground that the damage which the appellants had suffered was due not to the actions of the respondent but to "the natural deficiency of [the appellants'] land .... and to the fact that the respondent would no longer provide an artificial means of drainage to carry from the appellants' land water that would not naturally flow onto the respondent's land". The court concluded that "the respondent had no duty to help the appellants in this way".
97. In the course of the judgment of Gibbs CJ, Wilson and Brennan JJ, reference was made to Leakey and to Thomas, as follows (at p.583):

"In the present case, as we have said, the natural flow of surface water was not obstructed by the filling in of the long drain, for the natural flow was in the opposite direction. In such a case, it is difficult to see why the respondent should not have been free to block the artificial drain on his own land, even if to do that was not necessary for the enjoyment of his own land. Another decision which throws some light on the present case is that of the Court of Appeal in [Thomas]. In that case the appellants had built a wall along the side of a river to protect their own lands and an adjacent highway from flooding. In the course of building alterations they pulled down the wall, leaving gaps which they intended to fill by a new building, but the river suddenly rose and the respondents' land was flooded. It was held that the appellants were not liable either in nuisance or negligence. Sir Wilfred Greene MR who delivered the judgment of the Court of Appeal, said at p 389: "If this wall had been erected by the freeholder and taken down by the freeholder the next day, or a week, or a year afterwards, with the result that the floodwater took the course which it would have taken if the wall had never been there, I cannot see, on any principle known to me, that the respondents would have been entitled to complain. If it were not, so a person in putting up a defensive wall on his own land, would act at his peril, because by the mere fact of erecting it he would be conferring on his neighbours, or persons in the neighbourhood, rights to insist that he should never remove the wall or building he had put up." He went on to say (at p393) that "the respondents had no right to have the wall erected, they had no right to insist on its continuance, they had no ground of complaint whatsoever against anybody who rightfully took it down." The decision in that case was explained in [Leakey] on the grounds that there was nothing unreasonable in the action of the appellants in taking down the old protective wall on their own land in order to rebuild it. However, it seems to us, with all respect, that the judgment of Sir William Greene MR proceeded on the basis that the appellants had no duty to act reasonably. If there was such a duty, it must, in our opinion, have been created by the fact that the removal of the wall caused the flood water to flow onto the respondent's land. Where a person, by doing something on his own land, causes actual and material damage to another's land, the act of the first-mentioned person, although otherwise lawful, may be actionable if it was unreasonable having regard to all the circumstances, including the effect it was likely to have on the other land. For example, the neighbour of a railway company may have no right to require the company to maintain an embankment, and the company may lawfully cut trenches in the embankment, but if it does so when the consequence is to cast flood waters on to the neighbour's land, the company may be liable: see Whalley v Lancashire and Yorkshire Railway Co (1884) 13 QBD 131. A landowner may lawfully build a paved driveway on his land, but he may be liable in nuisance if he does so in such a way as to divert storm waters onto his neighbour's land: Bennetts v Honroth [1959] SASR 170.

If the respondent, by filling in the long drain, had diverted water on to the appellants' lands, it would have been necessary to decide whether his action in blocking the drain was a reasonable use of his own land in all the circumstances. But that was not the case. The filling in of the drain has not caused water to flow onto the appellants' lands; it has had the effect that the waters already on those lands, whether surface waters resulting from heavy rain or waters from flooded rivers or creeks, now cannot flow from those lands by the artificial drainage system that was made available by the cutting of the drain. Before the drain was cut the waters did not flow from the appellants' land to the respondent's land. The closure of the drain has not penned back water on the appellants' land, but has blocked the artificial channel which enabled the water to escape from those lands. The respondent's action has not caused the appellants' lands to be damaged, invaded or interfered with. The damage which the appellants have suffered is due to the natural deficiency of their lands, and to the fact that the occupiers of land other than the respondent have impaired the natural drainage system provided by Orchard Creek, and to the fact that the respondent would no longer provide an artificial means of drainage to carry from the appellants' lands water that would not naturally flow onto the respondent's land. The respondent had no duty to help the appellants in this way."

98. Mr Caddick submits that Thomas is authority for the proposition that where a landowner (A) who (or whose predecessor) has by artificial means obstructed the natural flow of water across his land so that it does not flow onto the land of his neighbour (B) subsequently removes the obstruction – however unreasonably – with the consequence that the natural flow is restored and B's land is flooded, A is not liable for that damage, Thus, he says, damage caused by the natural flow of water is not within the scope of the Leakey duty. He further submits, adopting the discussion of Thomas in Elston, that Megaw LJ was in error in Leakey in treating Thomas as a case in which no breach of duty had occurred since the defendants had acted reasonably.
99. I cannot accept those submissions. It is certainly the case that in Thomas this court held that there was no common law duty on the defendants to maintain the wall, and that it followed that the damage which the plaintiffs had suffered was not damage for which they were entitled to be compensated. But, in contrast to a statutory duty, the common law duty which underlies the tort of nuisance is not a duty which is writ in stone: it is a duty which reflects current attitudes and values, and as such it is inherently susceptible to a process of development and refinement. In my judgment, the tort of nuisance is not to be made the prisoner of precedent in the way Mr Caddick suggests. Life has moved on in the 63 years or so since Thomas was decided, and so has the law of nuisance. Had the actual decision in Thomas not been consistent with the application Leakey principles, there would have been force in Mr Caddick's submission based on the doctrine of precedent. But, as Megaw LJ pointed out in Leakey, the application of Leakey principles to the facts of Thomas would have led to precisely the same result. And that, as I read his judgment, was all that Megaw LJ was saying in the passage in his judgment which is discussed by the High Court of Australia in Elston. For my part, I do not understand Megaw LJ to be saying that the Leakey test of reasonableness was applied in Thomas. In terms, it plainly was not. But whether a decision on the issue of tortious liability is based on the absence of a relevant duty or on the absence of any breach of a relevant duty, the end result in law is that the same: viz. that the damage complained of is not damage for which the claimant is entitled to be compensated. That, I think, was the only point which Megaw LJ was making when referring to Thomas.
100. I therefore conclude, in respectful disagreement with the judge, that Thomas is not authority for the proposition that no Leakey duty arises in relation to naturally flowing water. I reach that conclusion with no reluctance, since it seems to me that the exception for which Mr Caddick contends would be anomalous and undesirable, and out of tune with current authority.
101. Nor, for essentially the same reasons, can I accept Mr Caddick's alternative submission based on Thomas, to the effect that no Leakey duty arises where land is restored to its natural state. In my judgment the nature and extent of the Leakey duty, as formulated by Megaw LJ (see paragraph 78 above), leaves no room for exceptions of that kind.
102. It follows that, absent any relevant easement, and given the parties' awareness of "the propensity of the marshes to flood and the necessity to drain [Scale Marshes] into [Priory Marshes] and thus to pump water into the river" (judgment p.25G-H), the Trustees will be liable to Mr Green in nuisance if and to the extent that the flooding of Priory Marshes in December 1993 and thereafter was attributable to their failure to do that which was reasonable in all the circumstances.
103. As to the December 1993 flood, I accept Mr Caddick's submission that the judge's findings that the flooding was caused by the stoppage of the pump and that the stoppage of the pump was not due to the fault either of Mr Green or of the Trustees bring the exempting proviso in the 1958 Drainage Deed into play, so as to exempt the Trustees from any liability which might otherwise have arisen on their part in respect of the December 1993 flood. Although Mr Green was not a party to the 1958 Deed, it is common ground that the 1958 drainage arrangements continued in operation after he acquired Priory Marshes in 1984, with Mr Green operating the pump which the settlement trustees had installed. In those circumstances it is clear, in my judgment, that Mr Green, having accepted the benefit of the 1958 drainage arrangements, was also subject to the burden of them to the same extent as if he had been a party to the 1958 Drainage Deed. Indeed, the contrary has not been seriously argued.
104. As to subsequent flooding of Priory Marshes, Mr Green's case in that respect has never been properly developed. As I pointed out earlier, paragraph 11 of his Re-Amended Particulars of Claim alleges that since December 1993 water from the lake has "continued to escape" from Scale Marshes onto Priory Marshes, but the allegation of a continuing nuisance has never been particularised, and there appears to have been little or no evidential investigation into that aspect of the case at trial. In consequence, no findings as to subsequent flooding were made by the judge. However, the allegation of continuing nuisance is pleaded, and I must address it.
105. In the first place, I reject Ms Hutton's submission that the evidential onus lay on the Trustees to prove that they acted reasonably. In my judgment, the instant case is not a case in which the maxim res ipsa loquitur has any application. Given that, as the judge found (judgment p.11A), Scale Marshes and Priory Marshes are the "natural receptor" for water emanating from the lake, the mere fact that water emanating from the lake has flowed onto Priory Marshes from Scale Marshes cannot, in my judgment, serve to shift the evidential onus onto the Trustees. The instant case is to be contrasted with a case such as Marcic, where the mere fact that sewage had emanated from the defendant's property called for an explanation from the defendant.
106. In the second place, at no stage prior to the commencement of proceedings was it made clear to the Trustees what it was that Mr Green expected them to do with a view to removing or reducing the risk of damage to Priory Marshes caused by floodwater (including water emanating from the lake) flowing from Scale Marshes onto Priory Marshes. Nor, for that matter, did Mr Green take any step himself with a view to removing or reducing that risk. Any suggestion on his part that he would be willing to clear his stretch of the Blocka Run was made, it appears, after the dispute had arisen; and in any event such suggestion as may have been made by Mr Green to that effect was dismissed by the judge as being "vague in the extreme" (judgment p.26D).
107. What, then, should the Trustees have done? As to the clearing of the Blocka Run, there can be no doubt that a joint effort by the Trustees, Mr Green and the other riparian owners to clear the Blocka Run would have substantially reduced (although, on the judge's findings, it would not have eliminated) the risk of water from the lake flowing onto Priory Marshes. But it does not lie in Mr Green's mouth to complain that the Trustees failed to initiate any such joint effort when he did not attempt to do so himself. Moreover, the clearance of the Trustees' stretch of the Blocka Run would have been of questionable effect unless Mr Green's stretch (including the tidal sluice, the silting up of which was the initial cause of the blockage) was also cleared. I also accept Mr Caddick's submission that the clearing of the Blocka Run would be disproportionate in terms of cost to the damage likely to be caused to Priory Marshes by intermittent flooding. As to the suggestion that the Trustees ought to have negotiated with the water company for the continued abstraction of water from the lake, this again was an aspect of the case which was not developed at trial, and the judge accordingly made no findings about it.
108. Further, the judge rightly (in my judgment) pointed to the continuing operation of the 1958 drainage arrangements by Mr Green and the Trustees as "a reasonable apportionment of responsibility" for the flooding of an area which was by its very nature liable to flooding. In addition, I agree with the judge that it is material that the 1958 drainage arrangements incorporate a wide degree of flexibility to meet changing conditions. If and to the extent that there is an issue as to whether a more powerful pump is required, that is an issue which can be addressed in the context of the provision for arbitration in the 1958 Drainage Deed.
109. In my judgment, therefore, the judge was plainly right to conclude that if a Leakey duty arose in the instant case (as I have concluded it did), the Trustees have not breached that duty. I should make it clear that that conclusion applies not only in respect of flooding occurring after December 1993 but also to the December 1993 flood, quite apart from the operation of the exempting proviso in the 1958 Drainage Deed.

The Trustees' claim to an easement of drainage

110. I turn, therefore, to the Trustees' counterclaim for an easement of drainage of water (including water emanating from the lake) through the dykes on Priory Marshes. Ms Hutton accepts that if the Trustees are entitled to the easement which they claim, the existence of that easement will constitute a complete defence to Mr Green's present claim and to any similar claims in respect of future flooding.
111. I turn first to the Trustees contention that the easement which they claim was impliedly reserved to the settlement trustees in the 1921 Conveyance. As noted earlier, it is admitted by Mr Green in his Amended Reply and Defence to Counterclaim that an easement of drainage was impliedly reserved in the 1921 Conveyance, but it is denied that that easement extends to the drainage of water emanating from the lake. In my judgment, if the reservation of any easement of drainage is to be implied into the 1921 Conveyance, such easement must, for the reasons given by the judge (judgment p.15B-D) extend to water emanating from the lake. To my mind, it cannot conceivably have been the common intention of the parties in 1921 that water emanating from the lake should be treated any differently from other water finding its way into the dykes on Scale Marshes and thence onto Priory Marshes. The question, then, is whether such an easement was impliedly reserved in the 1921 Conveyance.
112. In Pwllbach Colliery v. Woodman [1915] AC 634 at 646, Lord Parker of Waddington identified two classes of easement the grant of which might be implied. The first class consisted of easements of necessity. As to the second, he said this:

"The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. .... But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use." (My emphasis.)

113. I also remind myself that a heavy burden of proof lies on a vendor who claims that an easement was impliedly reserved as a matter of common intention (see In re Webb's Lease [1951] Ch 808 at 828 per Jenkins LJ).
114. I turn, then, to the 1921 Conveyance. As noted earlier, it contains the following proviso:

"And that this Conveyance is subjected [sic] to and with the benefit of the provisions contained in a certain Deed of Covenant as to draining marshes of even date herewith executed by the parties hereto ...."

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.
118. As to Ms Hutton's submission based upon the absence of any evidence as to whether or not Mr Mallett executed the 1921 Conveyance, that was not an issue which was raised before the judge, and in consequence the judge made no findings and reached no conclusions on it. Nor does it appear in Mr Green's grounds' of appeal. In the circumstances, it is not a submission which is open to her. In any event, Mr Green is on the face of it estopped from denying the existence of the implied easement by reason of his having continued to operate the 1958 drainage arrangements from 1984 onwards.
119. My conclusion that the Trustees are entitled to the implied easement which they claim renders it strictly unnecessary for me to address the alternative basis of claim, based on the doctrine of lost modern grant. In the circumstances, I do so briefly.
120. In my judgment, the judge was in error in rejecting this alternative claim.
121. In the first place, the instant case is in my judgment distinguishable from Palmer v. Bowman, where the easement sought was an easement to drain into the defendant's ditches rainwater falling onto the claimant's land. In Palmer v. Bowman, this court held that such a right was not capable of existing as an easement on the basis that it was an essential incident of the ownership of the land and not capable of forming the subject-matter of a grant. In the instant case, by contrast, the dykes in question have at all material times served both Priory Marshes and Scale Marshes. The water draining from Scale Marshes onto Priory Marshes is water which is already contained by the dykes.
122. In the second place, I consider that the judge was in error in his conclusion (judgment p.16G), citing Honey v. Silversprings, that the user relied on lacked the requisite certainty and uniformity to establish a prescriptive right. I accept Mr Caddick's submission that the judge's findings of fact provided a sufficient foundation for the prescriptive right claimed. In particular, the fact that one cannot be certain how much water which has flowed in the dykes over the years, or what proportion of that water emanated from the lake, does not seem to me to be a material factor. It is enough, in my judgment, that significant quantities of water would have been discharged into the river via the dykes on Scale and Priory Marshes, and that such water would on occasion have included water emanating from the lake.
123. Accordingly I would hold that the Trustees are entitled to the easement of drainage for which they counterclaim.

RESULT

124. I would dismiss this appeal.

Sir Christopher Staughton :

125. I agree.

Lord Justice Schiemann :

126. I also agree.

Order:

127. The appeal is dismissed and the Cross Appeal is allowed.
128. The appellant do pay the respondents' costs (i) of the appeal and (ii) of the respondents' cross appeal. Such costs to be subject to a detailed assessment if not agreed.
129. The Appellant do within 28 days pay the respondents the sum of £10,000 by way of an interim payment in respect of those costs.
(Order does not form part of the approved judgment)