HOWARD C.J.—Hendrick v. Samelis.
1940Present: Howard C.J.
HENDRICK et al. v. SARNELIS et al.
202—C. R. Gampaha, 8,248.
Servitude—Right of way acquired by prescription—Deviation of route by non-notarial agreement—Right does not attach to new route—Assent does notamount to permissive user.
A right of way acquired by prescription does not attach to a new routesubstituted by agreement in place of the old route in the absence of anotarial agreement or a user for the prescriptive period.
Dias v. Fernando (37 N. L. R. 305) not followed.
Assent to the use of a right of way by acquiescence does not preventthe period of prescription from running.
Don Dionis v. Saranhamy (1 C. W. R. 85) followed.
^ PPEAL from a judgment of the Commissioner of Requests, Gampaha.
H. V. Perera, K.C. (with him J. R. Jayawardana), for the plaintiffs,appellants.
Francis de Zoysa, K.C. (with him L. A. Rajapakse), for the defendants,respondents.
Cur. adv. vult.
June 20, 1940. Howard C.J.—
This is an appeal from a judgment of the Commissioner of Requests,Gampaha, dismissing the plaintiffs’ action. In view of the attitudeassumed by the defendants at the trial in denying that the plaintiffshad ever taken cattle over the land of the first defendant, the Commis-"sioner made a further order that the defendants would be entitled to onlyhalf costs. The plaintiffs claimed by prescription a right of way over acattle track six feet wide marked H, G, E, F in plan No. 1063, X 1,situated on the land of the defendants, and damages for obstruction oftheir right by the defendants. It was proved at the trial that the plaintiffshad acquired by prescription a right of way for their cattle over a trackmarked A, B, C, D, E, F on the said plan and situated on the land of thedefendants. It was admitted at the trial that eight years prior to theobstruction of which complaint is made by the plaintiffs, the plaintiffsand defendants by agreement substituted for the route A, B, C, D theroute H, G, E, F. The point, therefore, at issue between the parties waswhether the right of way acquired by the plaintiffs over the land of thedefendants attached to the new route effected by mutual agreement bydeviation of the old route. The learned Commissioner in finding for thedefendants held that the plaintiffs had not merely to prove user of thecattle track but also that they used it adversely and that their use of thecattle track through the new gate at “ H ” was not adverse. In comingto the conclusion that the plaintiffs’ user of the track was not adverse,the Commissioner .was apparently influenced by the fact that, they hadbeen permitted this user during the life of Amaris, the father of thedefendants. There was, however, no evidence of any formal agreement
between the plaintiffs and Amaris with regard to the former’s user of the
HOWARD C.J.—Hendrick v. Samelis.
cattle track. Assent by acquiescence does not prevent the period ofprescription running. In this connection I would refer to Don Dionis v.Saranhamy The reasoning, therefore, on which the Commissionerfound for the defendants is based on wrong premises.
The question as to whether the prescriptive rights of the plaintiffs withregard to the old route attached after the deviation to the new route hasbeen argued before me by xeference to Voet .and a number of decisions ofthis Court. It would be idle to pretend that I have not found considerabledifficulty in reconciling those decisions. The passages in Voet on whichreliance has been placed by the plaintiffs are to be found in Book VIII.,Tit. III., section 8. Those passages, however, as has been pointed outby Schneider J. in Madanayake v. Thimotheus “• make it clear beyond anymanner of doubt that the writer is speaking of only those servitudes whichare created in a particular way, namely, where the right is granted ingeneral terms without mention of the route over which it is to be-exercised.From the very terms of its creation the right is in theory exercisable overevery part of the land. It is, therefore, necessary for principles to be laiddown upon which the precise route should be determined. In indicatingthose principles Voet points out that the owner of the right having madehis election is bound to the route selected by him and so far as he isconcerned the rest of the land is free from the burden. This determinationof the route will not prevent the owner of the land which is the servienttenement from altering the route provided he allows another route whichin no way prejudices the owner of the dominant tenement. Theseprinciples cannot be made applicable to a servitude of way acquired byUser for the necessary period of prescription over a definite route. It isnot a right which can be said to extend over the whole of the servienttenement. It is acquired without the consent of the owner of the servienttenement and by possession adversely to him. Support for the viewtaken by Schneider J. in Madanayake v. Thimotheus is to be found in thejudgment of Lascelles C.J. in Karunaratne v. Gabriel Appuhamy et al.‘where it is stated as follows : —
“ In the system of law which prevails in Ceylon rights of way areacquired by user under the Prescription Ordinance, and the course ortrack over which the right is acquired is necessarily strictly defined.How far the principles of the Roman-Dutch law to which I havereferred are applicable to a case where the right to pass over a definedtrack has been acquired by prescription is a question of some difficulty.”In Kandiah v. Seenitamby1 it was held by de Sampayo A.J. that thereasoning in Voet 8. 3.8 was not applicable to a case where the veryquestion is as to the existence of a right of servitude and where one issought to be established by prescription, inasmuch as ex natura reipossession or user for purposes of prescription must be in respect of aparticular part or track of the land. Reference was also made by thelearned Judge to C. R. Mallakam, 16,080 (S. C. Min. June 26, 1909) inwhich Wendt J. laid down that “ the evidence to establish a prescriptiveservitude of way must be precise and definite. It must relate to a definedtrack, and must not consist of proof of mere straying across an open land
1 1 C. W. R. So.115 N. L. R. 257.
* 3 C. L. Rec. 82.* 17 N. L. R. 29.
HOWARD C-J.—Hendrick v. Samelis. „
at any point which is at the moment most convenient ”. The samereasoning was followed by Ennis J. in Morgappa v. Casie Chetty.1 In thiscase the learned Judge stated that one track cannot be substituted foranother without a notarially executed document or user of the new trackfor the full prescriptive period. He distinguished the case of Costa v.Livera ’ because in that case the existence of a right of way was admitted.The same principle was also formulated by Wendt J. in Andris v. Manuel *and applied by Fisher C.J. in Fernando v. Fernando * in which the casesof Madanayake v. Thimotheus, Karunaratne v. Appuhamy and Kandaiahv. Seenitamby were cited with approval.
In view of this volume of authority it might be thought that the matterhad been placed beyond the regions of doubt. In Dias v. Fernando’,however, it was held by Koch J. and Soertsz A.J. that, where a personacquired a right of way over another’s land and a deviation of the routewas effected>by a mutual agreement which was not notarially attested, theservitude attached to the new route. The decision of Koch J. was basedon the opinion of de Sampayo J. in Costa v, Livera ". From the wordingin the judgment of Soertsz J. it will be observed that the latter’s acquie-scence in the decision of the Court was given with great reluctance. Infact the reasoning of Soertsz J.’s judgment indicates that the decisionshould have been in favour of the defendant. It is, therefore, ofimportance to examine closely the grounds on which the judgment ofKoch J. are based. He states as follows : —
“ If the views expressed by this Court in Karunaratne v. GabrielAppuhamy; Fernando v. Fernando, Madanayake v. Thimotheus. Andrisv. Manuel and Morgappa v. Casie Chetty, are carefully examined, it willbe found that the correctness of de Sampayo J.’s opinion has neverbeen questioned. His view is that the incorporeal right to use remainedalthough the path along which it was used was changed. * What isprescribed by long user ’, he says, ‘ is not the ground, over which theway lies but the incorporeal right of the servitude ’.”
Scrutiny of the reports of the cases mentioned by Koch J. indicatesthat Costa v. Livera is not referred to in Karunaratne v. Appuhamy,Fernando v. Fernando, Madanayake v. Thimotheus or Andris v. Manuel.It is, therefore, difficult to understand how the learned Judge could drawany deduction as to the soundness of the decision in Costa v. Livera fromthe fact that de Sampayo J.’s opinion was not questioned. Incidentallythe earlier cases of Andris v. Manuel and Karunaratne v. Appuhamy werenot mentioned in Costa v. Livera. Hence it might with equal force besaid that the opinions expressed by the Judges in these earlier cases werenot questioned. The case of Costa v. Livera was mentioned and distin-guished in Morgappa v. Casie Chetty because in the earlier case theexistence of a right of way was admitted. In Costa v. Livera whilst theplaintiff’s right to use the old route was contested it was admitted by thedefendant that the plaintiff -had the right to use the new route. A rightof way was therefore admitted, and the question arose as to whether theplaintiff had abandoned the old route. The case was sent back for the
117 N. L. R. 31.* 31 X. L. R. 12C.
« 16 N. L. R. 26:‘ 37 N. L. R. 303.
* 2 S. C. D. 69.• 16 N. L. R. 26.
KEUNEMAN J.—Rotoeeno Umma v. Rahuma Umma.
re-trial of this question. It is difficult to understand how it can. beregarded as an authority for the proposition accepted by^Koch J. in Dias v.Femando (supra) and put forward by the plaintiff in this case. De Sampayo
J.does not even mention the case of Costa v. Liver a in the case of Kandiahv. Seeniiamby which, so it seems to me, is authority for the contraryproposition. In the circumstances I am of opinion that Dias v. Fernandois in conflict with the numerous other authorities that I have cited. Theright of a cattle track over the new route is based neither on ten yearsuser nor on a notarially executed agreement. The appeal therefore failsand must be dismissed with costs.
HENDRICK et al. v. SARNELIS et al