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Present: Grenier J.Feb. 6, lull
FERNANDO v. MENDIS et al
491—C. R. Negombo, 18,057.
Servitude—Destroyed by express or tacit abandonment.
The abandonment of a right of servitude to draw water from awell standing on another’s land destroys it, not only when such .abandonment is express, but also when it is tacit.
rj^HE facts are set out in the judgment.
A. St. V. Jay ewardene y for the appellants.
Wadsworth (with him Talaivasingham), for the respondent.
Cur. adv, vulL
February 6, 1911. Grenier X.—'
The plaintiff in this action claimed the right to draw water froma well standing on the defendants' land, which adjoins his land.
The plaintiff alleged as his cause of action that the defendants hadon June 4, 1910, filled up the well, and have ever since preventedplaintiff from drawing water therefrom. The defendants answered
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Feb. 6f 1911
that the plaintiff was permitted by them and their predecessors intitle to draw water, but they denied that ths plaintiff had acquiredany right to do so. They aJlpged further that the well was closedwith the consent of the plaintiff in the presence of the Inspector ofPolice and police headman.
At the trial the issues agreed upon were—
(J) Has the plaintiff acquired a prescriptive right to draw waterfrom defendants’ well ?
Did the defendants on or about June 4, 1910, forcibly
close the well and prevent the plaintiff from drawingwater ?
If so, what damage has plaintiff sustained ?
I accept the Commissioner's finding on the first issue, that theplaintiff had acquired the servitude in question by long user andprescriptive possession. .1 agree with him that the evidence ofpermissive user was quite inconclusive and should be rejected. Asregards the second issue, whether the closing of the well was forcible,the Commissioner found against the plaintiff. He was satisfiedthat the Inspector of Police was an impartial witness, and hisevidence was true that plaintiff did in .fact consent to the closure.
The Commissioner, however, gave judgment for the plaintiff on theground that as the consent of the plaintiff to close the well involvedan interest in immovable property, such consent should have beenembodied in a notarial document under the provisions of OrdinanceNo. 7 of 1840. A decree was entered up declaring the plaintiffentitled to draw water from the well, and ordering the first defend-ant to open up the well. In my opinion the Commissioner hastaken a wrong view of the law relating to a servitude of the characterin question. Under the Roman-Dutch Law, which should governthis case, there is what is known as the abandonment of a right ofservitude of this description. ’ According to Voet (8, 6, 5) “ theabandonment of a servitude destroys it, not only when suchabandonment is express, but also when it is tacit. As an example of a tacit abandonment, Voet mentions the casewhere something is conceded to the owner of the servient tenement,which naturally and of necessity obstructs the use of the servitude,as, for instance, if he be allowed to build on land set apart for theexercise of a right of way, or to raise his buildings, even althoughhe be burdened with a servitude of receiving raiu drops. In Nathan'sCommon Law of South Africa (yoi /., s. 722) reference is madeto the case of Edmeades v. Schecperswhere the facts and findingswere as follows : The plaintiff purchased lots of ground from aMunicipality, and the defendant had bought similar lots, againstthe transfer deed whereof was registered a servitude of grazingrights in favour of the landowners in the Municipality, the defendant
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reserving to himself only the right of building, and the defendantcultivated the land and continued doing so for sixteen to eighteenyears ; it was held that the plaintiff was entitled neither to damagesfor obstruction of his grazing rights, nor to an interdict, as thecultivation of the land was necessarily repugnant to the grazingright, and the plaintiff had lost his servitude, seeing that he lay byfor so many years and made no objection, it was apparently heldin the case cited above, a report of which is not accessible, thatthe dominant owner cannot plead he was silent, and never openlyacquiesced in the repugnant act, and that the servient owner cannotbe compelled to restore the property to its former condition, althoughVoet was of opinion that the dominant owner is compellable tomake good actual damage caused to the servient owner. Grotius,in bk. //., 37, IV.y says that such servitudes are lost by permittinganything to be done repugnant to the servitude ; as, for instance, incase any one permits the ground on which he had a right of way tobe built upon.
In the case now before me there was not a tacit but an expressabandonment of the right which plaintiff had acquired to drawwater. The Commissioner has found that the defendant gave hisconsent to the closure of the well, and, of course, it goes withoutsaying on the authorities l have referred to, that in thus giving hisconsent he completely abandoned his right of servitude, and cannotnow claim it in this action.
The judgment of the Court below must be set aside, and. theplaintiff’s action dismissed with costs in. both Courts.
FERNANDO v. MENDIS et al