MAARTENSZ J.—Paranavitame v. District Road Committee, Galle. 135
1935Present: Maartensz J.
PARANAVITARNE. v. DISTRICT ROADCOMMITTEE, GALLE.
155—C. R. Galle, 14,041.
Thoroughfare—Overhanging trees—Power of District Road Committee to cuttrees—Claim for compensation—Ordinance No. 10 of 1861.
A District Road Committee is entitled to cut down trees overhanginga thoroughfare in its charge without being liable to pay compensation tothe owner.
PPEAL from a judgment of the Commissioner of Requests, Galle.
Croos da Brera (with him Ab ey war dene), for plaintiff, appellant.
H. V. Perera, for defendant, respondent.
April 12, 1935. Maartensz J.—
The plaintiff in this action sued for the recovery of a sum of Rs. 60, thevalue of four coconut trees which were cut down on his land by thedefendant committee.
The case for the plaintiff was that the defendant committee cut downthe trees in exercise of the powers vested in them by section 76 of the
1 2 c. L. W. 295.2 19 N. L. It. 413.2 19 N. L. R. 50.
136 MAABTENSZ J.—Paranavitame v. District Road Committee, Galle.
Road Ordinance, No. 10 of 1861, and that he was entitled to compensationfor the loss under the provisions of section 80.
The defendant committee in their answer pleaded that the trees werecut down as they were overhanging the District Road Committee roadbetween Unawatuna and Heentigala and that the committee was not liableto pay compensation.
The committee did not in their answer raise the plea that the trees werecut down in exercise of the powers created by section 90 of the RoadOrdinance, No. 10 of 1861, nor was it raised in the issue. It appears tohave been raised in the course of the trial, for the plaintiff produced letter(P 3) dated July 8 and 9, 1932, in which the Chairman of the District RoadCommittee had stated with reference to the notice on the plaintiff to cutdown the trees that as an act of grace he “ preferred to use the provisionsof section 76 of the Ordinance ”—that is Ordinance No. 10 of 1861.
The learned Commissioner has rightly pointed out that section 76 doesnot contemplate a notice being issued to the owner of trees overhanginga road requiring him to cut them down.
He also finds that the notice was not as a matter of fact issued underthe provisions of section 90 of the Ordinance. The Commissioner dis-missed plaintiff’s action on the ground that the trees did overhangthe road and the District Road Committee was entitled, apart from theOrdinance, to cut down the trees without becoming liable to pay compen-sation in exercise of the common law right of an owner to remove a treeoverhanging his land.
In appeal counsel for the defendant contended that the committee hadcut down the trees in exercise of the powers vested in Provincial and Dis-trict Road Committees by section 90 to cause the removal of obstructionsin and upon any thoroughfare, and the committee so far from beingliable to pay compensation was in terms of the section entitled to recoverthe costs which have been bona fide incurred in effecting such removal.
This contention is clearly untenable. Section 90 was enacted for thepurpose of enabling Provincial and District Road Committees to removeor abate obstructions and encroachments specified in section 84 of theOrdinance, after taking the steps provided by the section. Theobstructions and encroachments referred to in section 84, obviously donot apply to trees overhanging a road unless they constitute anobstruction to the use of the thoroughfare. There is no evidence in thecase that the trees which were cut down overhung the road in question tosuch an extent as to impede the free .use of it.
Another objection to the contention is that the committee could notproceed under section 90 independently of sections 84 and 88 with which itforms a group of sections enacted according to the sub-head to cope with“ encroachments ”. This proposition is so plain that it hardly requiresthe support of authority. But authority will be found in the case ofChairman, District Road Committee, Negombo v. Gabriel Croos1, wherePhear C.J. said : —
“ It was argued on behalf of the District Committee that thissection 90, not merely prescribes the course which the committee musttake after the procedure laid down by sections 84 and 88 has terminated
• (1879) 2 S. 'C. C. 105.
MAARTENSZ J.—Paranavitame v. District Road Committee, Galle. 137
in its favour, but that it is so far independent of those sections as tofurnish a starting point from which alone the committee may proceed,without having taken the previous step of making a survey, and givingthe owner or occupier of the premises notice of that survey, and so on,in pursuance of section 80. But to hold this would be in effect to ignore,not merely the obvious purpose of section 88, but the express wordsthereof, which are positive, that (in all cases) whenever it appears to thecommittee that a thoroughfare has been encroached upon, it shall(amongst other things) give notice in writing to the occupier of thepremises, that unless within a month, &c., he or the person underwhom he holds shall take legal proceedings for preventing the removal,&c., the committee will proceed with the removal, &c., in the mannerprovided by section 90. In view of this enactment nothing can well beplainer than that the committee has no authority to proceed with theremoval in the manner provided by section 90, if it has not previouslytaken the steps prescribed by section 88 ”.
There is as a matter of fact no inconsistency between the provisions ofsection 76 and section 90, and there is no necessity to seek to reconcilethem as the learned Commissioner has done. Section 76 is one of a groupof sections enacted to empower the officer in charge of any work upon anythoroughfare, the execution of which is directed by the Governor, to dothe acts specified in sections 71 to 78 in, through, or upon any land adjacentto a thoroughfare.
Section 76 enacts as follows: —
“ It shall be lawful for any such officer to cut and remove, and placeupon any ground adjacent or near, thereto, all trees, bushes or shrubs,and all leaves or branches or roots of trees that shall grow in or overhangany thoroughfare or cause any obstruction therein, and for that purposeto enter upon any land or premises with such persons, animals, andinstruments as may be necessary, and to proceed to do therein all suchthings as may be necessary for the cutting, lopping, or removing of suchtrees, bushes, shrubs, leaves, branches, or roots.”
Section 80 provides that—
“ Every person who shall sustain any loss, or damage by reason of theexercise of any of the powers and authorities conferred by thisOrdinance upon officers in charge of works to which it is applicable shallbe entitled to receive compensation for the same.”
The rest of the section is not relevant to this appeal.
Section 81 enacts—
“ Every Chairman of a Provincial or District Committee, within thelimits of the province or district for which such committee is assignedto act, the Director of Public Works; and every person authorizd inwriting by any such Chairman or Director of Public Works, shall andmay by themselves, their servants, workmen, and labourers, exercisethe several powers and authorities conferred by the Ordinance onofficers in charge of works to which this Ordinance is applicable.”
It is true that section 76 does not provide for a notice being issued to anowner of land adjacent to a thoroughfare requiring him to cut down anoverhanging tree; but it is to be presumed from the Chairman’s reference
138 MAARTENSZ J.—Paranavitame v. District Road Committee, Galle.
to section 76 in his letter P 3 that the trees in question were cut down inpursuance of the provisions of section 76 and section 81 of theOrdinance.
It was contended, however, that even if the trees were cut down underthe provisions of section 76 the plaintiff was not entitled to compensationas the loss or damage referred to in section 80 was loss or damage resultingfrom the officer not performing his duties in a proper manner, and not toloss or damage resulting from acts lawfully or properly done. I am notprepared to accept this contention. But I think a distinction must bedrawn between acts which would, but for the provisions of the Ordinance,constitute a trespass and acts which would not amount to a trespass underthe common law.
Appellant's Counsel referred to the provisions of sections 10 and 17 ofthe Ceylon Telegraph Ordinance, No. 35 of 1908. Section 10 containsprovisions similar to the provisions of sections 71 to 78 and section 80 ofthe Road Ordinance, 1861.
Section 17 provides that—
“Whenever a telegraph line has been placed under, over, along, oracross any immovable property, no person who, subsequent to the dateon which such telegraph line has been so placed, plants any tree orshrub which may be likely in the future to injure, impede, or interferewith such telegraph line, shall be entitled to reoieve any compensationshould such tree or shrub or any branch therefore be cut down under theprovisions of section 10
It was contended that the combined effect of these two sections was thatcompensation should be paid for trees and shrubs cut down unless theywere planted in the circumstances stated in section 17.
I do not think that any inference can be drawn from the provisions ofthe Telegraph Ordinance. Section 10 contemplates the laying of telegraphlines, over, along and across immovable property. There is in my judg-ment no analogy between a telegraph line along immovable property anda road running besides such property.
In my judgment the question whether or not the defendant committeeis liable to compensate the plaintiff for the trees which were cut downmust be determined by ascertaining whether the committee had a rightto cut down the overhanging branches apart from powers vested in it bythe Ordinance.
I think it is now settled law that the owner of a land has the right tohave cut down a tree overhanging his land or at least so much of it asoverhangs his land without paying compensation—CoOre Hamme v. Botego',Muttiah v. Dias % Malar v. Kirithatkandus, and Jayasundara v. Godage4—inthe last case Shaw J. was of opinion that an order of Court was desirablebut not in strict law necessary to entitle a landowner to clip overhangingbranches.
In the case of Dias v. Strong Clarence J. gave the plaintiff damagesbecause the trees were cut down without an order of Court. With duedeference I prefer to. follow the decision of Shaw J. If this view is correct
1 (1867) Ram. Rep. 1863-1868, p. 234.• (1887) 2 N. L. R. 83.
(1893) 2 S. C. R. 97.
(1921) 22 N. L. R. 345-
* (1878) 1 S. C. C. 103.
KOCH A.J.—Roosemalacocq v. Sally.
the defendant committee had the right to cut the overhanging part ofthe trees without recourse to the Courts. They exceeded their right incutting down the entire trees. But being coconut trees whether the wholeor the overhanging part was cut away makes no difference to theowner.
I am therefore of opinion, though not without hesitation, that thedefendant committee is not liable and I dismiss the appeal with costs.I would have had more hesitation in coming to this conclusion if this wasnot the first case as far as I know in which such a claim was made under anOrdinance which has been in force for about 74 years.
PARANAVITARNE v. DISTRICT ROAD COMMITTEE, GALLE