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Andrew Scott Walby, Richard Scott Walby v Malcolm Scott Walby, Laura Scott Walby (2012)


There were no grounds on which to imply into a transfer of part of farming land and buildings an easement of drainage in favour of the retained land, either on the basis of necessity, mutual benefit or to give effect to any intention as to the particular use of the land retained.


In a claim for rectification of a transfer deed, the court considered whether the second claimant (D), the transferor, had impliedly reserved to himself an easement for drainage for buildings retained by him.

D owned the freehold of land and buildings over which he granted a tenancy to himself and his wife as a farming partnership. In 1989, he executed a transfer of part of the farm to the first defendant (M), his son, by way of gift. The land transferred, which included part of an existing building used for housing cattle and part of a yard in front of the building, was not delineated by a boundary following any physical feature of the building. In 2001, D sold to the first claimant (X), another of his sons, the land which he had retained at the time of the 1989 transfer (the retained land). A specialised drainage system was installed on the farm around the time of the 1989 transfer. On the basis that it was in existence prior to that transfer, D and X claimed that an easement of drainage had been impliedly reserved by the transfer to M.

D and X contended that an easement of drainage was impliedly reserved as an easement of necessity; that drainage easements had been both impliedly granted and reserved as reciprocal easements, since the drainage system operated for the benefit of both the land transferred and the retained land; and that the reservation of a drainage easement was necessary to give effect to a common intention of the parties as to a particular use of the retained land.


(1) The Law of Property Act 1925 s.65 had the effect of creating a legal easement in favour of the transferor even where the transfer was not executed by the transferee, whether the reservation was express or implied. Thus, the fact that M did not execute the 1989 transfer did not preclude D and X from arguing that the transfer impliedly reserved easements to D in relation to the retained land (see para.27 of judgment). (2) The test for implying an easement of necessity was a strict one. It was not enough to show that the easement was necessary for the reasonable enjoyment of the land retained; the facts had to be such that the retained land could not be used at all without the implication of an easement, Union Lighterage Co v London Graving Dock Co [1902] 2 Ch. 557 and MRA Engineering v Trimster Co Ltd (1988) 56 P. & C.R. 1 applied. In the instant case, there were no grounds on which to imply the reservation of a drainage easement on the basis of necessity because the absence of such an easement did not have much impact on the use that could be made of the retained part of the building and the yard, which were not self-contained parts (paras 32, 49). (3) The movement of effluent and other liquid began on the retained land. If the transfer had reserved a right to drain onto the land transferred, then the land transferred would have the burden of dealing with that effluent. However, if there were no reserved right of drainage, then the land transferred could refuse to accept effluent from the retained land. As it was far from clear that there would be an implied grant of a drainage easement in favour of the land transferred over the land retained, it was difficult for D and X to establish the case for an implied reservation of a drainage easement from the retained land onto the land transferred. The flow of effluent and other liquid onto the land transferred would be an obvious burden in excess of any arguable benefit. There was therefore no implied derogation from the express grant to M and no reason to hold that he took the land transferred in 1989 subject to the burden of being obliged to deal with effluent water from the land retained, Pyer v Carter 156 E.R. 1472 considered (paras 50-51, 56-58). (4) Given the factual findings in the instant case, it was not possible to hold that a drainage easement should be impliedly reserved to give effect to an intention that the retained land should be used in some definite and particular manner. It was therefore not possible to imply into the 1989 transfer the reservation of an easement of drainage in favour of the retained land (paras 59-60).

Judgment accordingly

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02 Nov 2012

Chancery Division
Morgan J

LTL 7/11/2012 : [2013] 1 P & CR DG6 : [2012] EWHC 3089 (Ch)

Practice areas
Real Estate