The claimants purchased land, containing garages and a storage shed, to the rear of a Victorian house, part of which was owned by the defendants. A drain ran from the claimants’ land into the sewerage system under the Victorian house. The claimants demolished the outbuildings and built two new houses on the land. They connected the pipes taking the waste water away from the new houses to the drain. The defendants subsequently removed part of a pipe from the drain so as to prevent the waste water from the houses from connecting to its sewer. The claimants brought a claim for a declaration that they had a right to an easement, by way of prescription or lost modern grant, permitting waste water to run under the defendant’s land in the drain. A judge granted the defendants’ summary judgment and the claimants’ appealed.
Morgan J allowed the appeal. There was, as yet, uncontradicted evidence that the buildings on the claimants’ land had previously used the drain to take sewage away from the land. Accordingly, there was a real prospect of showing at trial that the use of the drain included sewage and not just rain or surface water.