Present .* Drieberg J.
FERNANDO et ol. v. DE SILVA.
100—0. R. Negombo, 34,635.
Right of way—Oart road—Way of necessity—Misjoinder of parties andcauses of action.
Where the plaintiffs, who owned distinct allotments or land,sued the defendant claiming a cartway of necessity over thedefendant’s land,—
Held, that the action was bad for misjoinder of parties andcauses of action.
The owner of a land which has access to the high road by a pathcannot claim a cartway unless the actual necessity of the casedemands it.
HIS was an action instituted by the plaintiffs, who were theowners of divided allotments of a land called Dawatagaha-
watta. They claimed a way of necessity for cart traffic from theirlands over the defendant’s land. Objection was taken in thelower Court that the action was bad for misjoinder of parties andcauses of action. The learned Commissioner o’f Requests refusedto uphold the objection and gave judgment for the plaintiffs.
Haylcy, K.C. (with Croos-DaBrera), for defendant, appellant.—There is a misjoinder of parties as well as of causes of action. Theplaintiffs are owners of separate lands. There are as many causesof action as there are lands. (Don Simon Appuhami v. MarthelisRosa,1 AnganpiUai v. Kurrukel.2)
Under the Roman-Dutch law a way of necessity cannot beclaimed beyond the actual necessity of the case. Here there isno proof that a cartway is a necessity, as the plaintiffs are shownto have have been content during the last fifty years with carryingtheir produce on their shoulders along the footpath. (Grotius 11.35, 7; 2 Maarsdorp 184.) Even if a cartway be considereda necessity, the plaintiffs have lost their right by prescription,inasmuch as they have not instituted their action all these years.
Rajapakse, for plaintiffs, respondents.—Although the plaintrefers to the title of the plaintiffs to the separate lots, there is reallyone land, Dawatagahawatta, and the plaintiffs are owners of itin undivided shares. There is no misjoinder, therefore. Theinterest of the plaintiffs against the defendant is joint. (Section 36of the Civil Procedure Code.) Even if there is a misjoinder, no
1 9 N. L. R. 68.
* 16 N. L. R. 231.
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prejudice has been caused to the defendant by it (Perera v.Fernandol); and in any case judgment-may be given to one of theplaintiffs and the action by the rest dismissed (section 11 of theCivil Procedure Code).
An owner of a land having a jus viae may maintain an actionfor broadening the path for a cartway of necessity (Attie v. SUva? ;Voet VIII., 3, 4): and the fact that such an owner has a right offootpath to the high road does not prevent him from claiming aright of cartway of necessity (Boteju v. Abtlinu 3).
The necessity for the cartway arose only recently, that is, whenthe plaintiffs’ coconut trees came into bearing and the nuts hadU) be carted to the high road.
>ctober 2,1928. Dbiebebg J.—
The respondents who are the owners of the lands A, B, C, and Din the plan in the sketch filed with the plaint ask for a way ofnecessity for cart traffic from their lands over the appellant’sland. They have at present a right of way along the footpath ABbut they want this enlarged into a cartway. These allotmentsare portions of Dawatagahawatta, which is lot No. 59,445 in theGovernment plan P 10 ~ and in the deeds are described withreference to that number.
The land is however now held in divided lots; A in extent2 acres 1 rood and 25 perches is owned by the first, second, andfourth respondents; B in extent 1 acre and 32J perches by thethird and fourth respondents; C in extent 2 acres and 2 roodsby the first and the fifth to the tenth respondents; D in extent1 acre and 1 rood by the sixth to the twelfth respondents. Thethirteenth respondent hold a lease- of a half of A and a one-fourthshare of C.
The objection taken in the lower Court that the action was badfor misjoinder of parties and of causes of action was not upheld.It has been raised again in the argument before me and I ain ofopinion that it must succeed.
Mr. Bajapakse sought to argue that the division was for con-venience of possession and that the title to these lots was notseparate and distinct. He pointed to some passages in the evidencewhich, he claimed, supported this. It is not possible, however,to consider the title of the parties on any other footing than thatpresented in the plaint.
Regarding these several lands as the subject of distinct andseparate ownership the claims of the owners of each of them to aright of way over the appellant’s land are separate and distinctcauses of action. The owners of each land have no doubt a common
14C.W. R. 148.* 8 N. L. R. 76.
• 7 C.W. R. 36.
Fernando v.de Silva.
Fernando v.de Silva
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Interest in the establishment of this road for it will benefit all ofthem, and.in the case of each claim there are common questionsof law and of fact to he determined, but the owners of any one landare not jointly interested with the owners of any other in the reliefclaimed. The joint interest is between the owners of each separateland.
There is therefore a clear misjoinder and the action must fail.
I need not refer to any authority on this point beyond the case ofDon Simon Appuhami et til. v. Marthelis Rosa.1
The only question is whether the respondents’ action should bedismissed or whether the action should be allowed for the benefitof some respondents and the action of the rest dismissed. It isnot possible however to adopt the latter course. The only witnessescalled on the main question were the thirteenth respondent andthe third respondent. The former has a leasehold interest in Aand C. He has no status in this matter and any inconveniencehe undergoes for want of a cart road cannot be considered.His chief reason is that he is vedarala and that it is very hardon his patients not to be able to drive in a cart to his house. Itis sufficient to say that he should not have engaged a housewhich was subject to this drawback. The third respondent who'with the first and second respondents owns lot A, is sixty yearsof age he has lived all his life on the land and apparently has notfelt the necessity of a cartway until recently when his aunt whowas ill had to be carried along the pathway to the road.
Both he and the thirteenth respondent seek to emphasize thedanger of the path by pointing to the case of a man who whenwalking along it was bitten by a snake and died.
So far as A, which is the only land, which can be dealt with,is concerned, the evidence is quite inadequate. The respondentsappear to have relied on the force of their united demand ratherthan on the actual merits of that demand for a cartway. Mr. Hayleyasked that I should express an opinion on the merits of this claim.If the action is dismissed for misjoinder of parties the respondentswill have the rights of bringing new and separate actions.
However, as the matter has been argued before me I may pointout that there appears to be a misapprehension as to what a wayof necessity is.
The Roman-Dutch law proceeded on a general maxim thatthere could be no blokland and therefore what was called a way ofnecessity was allowed “ as well for a person on foot, as with a wagon,in order to gather and carry off the fruits of the land or of drivingthe cattle to and from it,” (Kotze’s Van Leuwen, ed. 1881, vol. I.,p. 295). But this road by necessity can be claimed no further thanthe actual necessity of the case demands (Peacock v. Hodges2).
l (1906) N. L. R. 68.* Buchanan's Reports, 1876. p. 65, at p. 69.
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These lands lie a short distance from the Negombo-Mirigarna 1998.road. The land in that part of the country, as indeed is the case pwnm. j,in most rural areas, consist of numerous small holdings and neces- ^sarily comparatively few of them can have direct access by carts $e savato the main road. Under these conditions the respondents whoselands cannot be described as bloklands, because they have freeaccess to a road by the path, cannot say that a cartway is anecessity. Far from this being the case it would be a distinctluxury not enjoyed by the majority of owners of similar lands.
It has been claimed that a road is necessary to take the produceof these lands to the cart road. In my opinion there is no suchnecessity, for Hie limited produce of small extents like this caneasily be carried by men to the main road.
The appeal is, therefore, allowed and the judgment appealedfrom is set aside. The respondents will pay the appellant thecosts of this appeal and of the proceedings in the lower Court.
DERNANDO et al. v. DE SILVA