John Ewart and Others (Trustees of the late James Ewart) v. William and John Cochrane

Factual and Procedural Background

A tan yard established in 1779 in The City discharged surplus water through a drain that ran across what is now the Defendant’s garden, where the water collected in a cesspool and was absorbed by the soil. Both the tan yard and the garden were originally held by a single owner. In 1806 the two plots were conveyed together to Former Owner A. A further conveyance in 1819 transferred only the tan yard to the Plaintiffs’ predecessor in title; the garden passed separately to other owners. The 1819 deed contained no express reference to the drain.

In 1853 the Defendant blocked the drain at the boundary between the two properties, preventing water from the tan yard from reaching the cesspool. The Plaintiffs, now proprietors of the tan yard, raised an action in the Court of Session seeking restoration of the drain, removal of the obstruction, and an interdict against further interference.

The Lord Ordinary allowed proof on the age and use of the drain. Evidence showed that the drainage system had operated continuously for approximately sixty years, including periods when the two plots were held by different owners. The Court of Session concluded that a servitude in favour of the tan yard should be implied and that the Plaintiffs were entitled to reasonable access over the Defendant’s ground to repair the drain. The Defendant appealed to the House of Lords.

Legal Issues Presented

1. Whether, upon the 1819 severance of the formerly unified property, a servitude (easement) over the Defendant’s land in favour of the tan yard was implied despite the absence of an express grant or forty-year prescription.
2. If such an implied servitude existed, whether it carried with it a right of reasonable access for the Plaintiffs to enter the Defendant’s land to maintain and repair the drain.

Arguments of the Parties

Appellant's Arguments (Defendant)

• The Defendant, as absolute owner, was entitled to block the drain; the Plaintiffs had pled no valid servitude constituted by express grant or prescription.
• The properties had not been in separate ownership for forty years, defeating any prescriptive claim.
• An implied servitude could not arise without a written title expressly identifying the burden; reliance on the general words “parts and pertinents” was insufficient.
• Recognition of an implied right would unduly fetter an owner’s ordinary use of land and was unsupported by established Scottish doctrine.

Respondent's Arguments (Plaintiffs)

• A servitude can be constituted rebus ipsis et factis—by the very nature and longstanding use of the works—and therefore may be implied on severance of property.
• Continuous and apparent easements necessary to the enjoyment of the part conveyed pass by implication when land is divided.
• Here the drain was both continuous and necessary for the conduct of the tanning business; its existence was evident at the time of the 1819 conveyance and must be treated as included in the grant.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Judge Campbell, delivering the principal speech, affirmed the traditional rule in both Scottish and English law that, upon the severance of unity of ownership, any continuous and apparent easement necessary for the comfortable enjoyment of the property conveyed is presumed to pass by implied grant. The presence or absence of an explicit reference in the deed, or the elapse of a prescriptive period, is not decisive if the easement is shown to be necessary and in continuous use.

The evidence proved that, from the creation of the tan yard in 1779 until the obstruction in 1853, water had always drained through the same route—regardless of whether the tan yard and garden were in common or separate ownership. Because rerouting the drainage would have been simple, the continued choice to use the existing drain even when the garden and tan yard were in different hands demonstrated its necessity and apparent character.

Judge Chelmsford agreed, emphasising that the implication of a grant flowed from the practical necessity of the drain to the tanning operation. The judge rejected reliance on the novel doctrine of servitude rebus ipsis et factis as an independent ground; instead, the right stemmed from an implied grant contained within the 1819 disposition when construed in light of the surrounding circumstances.

Judge Kingsdown concurred without additional reasoning.

Holding and Implications

APPEAL DISMISSED; INTERLOCUTORS AFFIRMED WITH COSTS.

The House of Lords upheld the Court of Session’s decision, recognising an implied servitude in favour of the tan yard and confirming the Plaintiffs’ right to enter the Defendant’s land to repair and maintain the drain. The ruling directly binds the parties by restoring the drain’s function and restraining further interference. Although it does not establish new doctrine, the decision reinforces the established principle that necessary, continuous, and apparent easements pass by implied grant upon severance of formerly unified property.