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Present: Bertram CUT. and Schneider J.
PERERA e. SAMARAKOON.
417—D. C. Colombo, 1,912.
Servitude—Owner of the dominant tenement acquiring am interest in theservient tenement—Is servitude extinguished?—Admission on apoint of kbw in the District Court—Is party making the admissionhound by the admission in the Appeal Court f
One of the owners of the dominant tenement does not lose hisservitude over the servient tenement by acqui ing an interest in thelatter.
“ An erroneous admission of counsel on a point of law has noeffect, and does not preclude the party from claiming his legal rightsin the Appellate Court.”
HE facts are set out in the judgment of the District Judge(H. A. Loos, Esq.):—r
The plaintiff sues the defendant for a declaration that he is entitledto a right of way for carts and other vehicles over the defendant’s landsBalawalakanatta and Haminewatta from the Gansabhawa road onthe south to his (plaintiff’s) fields on the north of the defendant’s lands,along the track marked XXX shown in the sketch P filed with theplaint.
He states that under and by virtue of the deed No. 2,703 datedDecember 9,1919, he became entitled to an undivided two-sevenths partof the land called Haminewatta and to an undivided two-sevenths of halfshare of the land called Balawalakanatta, and that in lieu of the saidshares of those two lands, he, by arrangement, lias been in possession ofa divided portion of the land called Haminewatta, in extent about 3roods, and depicted as lot C in the sketch P referred to above.
He states that the defendant is also a port owner of those two lands,and is in possession of a defined portion towards the south of his land,ilk extent about 1} acre, and depicted as lot D in the sketch.
The plaintiff alleges that he and his predecessors in title had forupwards of thirty years been using the right of way already referred to .through the defendant’s portion, and have acquired a title by prescrip-tion thereto, but that on or about March 25, 1920, the defendantobstructed that right of way by putting up across it two barbed wirefences at the points marked T and Z in the sketch P to his loss anddamage of Rs. 50 per annum. •
The defendant admits that the plaintiff is entitled to certain undividedshares in the two lands in question; but denies thatby arrangement heis In possession of a divided portion of Haminewatta in lieu of thoseshares./
Hie admits that he is entitled to an undivided interest in those twolands, but denies that he is in possession ofa defined portion as allegedby plaintiff.
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Ho denies that the plaintiff and hie predecessors in title have been 19M,
using the track XXX for thirty years, and that they have acquired a
right of way by prescription. He states further, that to the east of gomarah>onthe traok claimed by the plaintiff there is a footpath leading to thefields on the north, and furthermore, that there is a cart road along thewestern boundary of the said lands.
He denies that he obstructed the right of way referred to, and as a matterof law, he pleads that the plaintiff cannot maintain this action, inasmuchas he is a oo-owner of the lands over which he. claims the servitude.
The parties went to trial upon the following issues:—
Is the plaintiff entitled to a right of cart -way by prescription
along the track shown in plan Ho. 1,743 made by J. Rodrigo f
What damages, if any, is plaintiff entitled to ?
Is the plaintiff entitled by prescription to lot A in plan Ho. 1,743,
or is he entitled to the undivided shares set out in paragraph2 of the plaint ?
If the plaintiff is entitled to the undivided shares set out in the
seoond paragraph of the plaint, can he claim a servitude overthe land held in common ?
It was agreed that the damages, if any, should be assessed at Rs. 5 perannum.
It was also admitted by plaintiff’s counsel that no servitude is possibleover the land if the plaintiff holds an undivided share of it.
The plaintiff has sought to establish that a division took place betweenthe owners of the .two lands, aud that instead of undivided shares, dividedraid defined portions were allotted to each of them.
He has produced a document P1, which purports to be on “allotmentreceipt,” upon which he relies to prove that the division took place.
Admittedly, only a very few of the owners took part in that arrange-ment, and-1, am. of opinion that it cannot be accepted as evidence of aformal division between the owners.
There is no doubt that some of the owners in pursuance of that arrange-ment took possession of defined blocks and lived on andcultivated them,but, admittedly, severed of the owners were away from the village, andthe blocks which it is alleged were allotted to them would appear to havebeen unoccupied and uncultivated till recently, after those shares hadbeen sold to others.'
That there was no formed division and possession by the severalowners of divided and defined blocks, and that the division alleged tohave been made was not accepted by or acted upon by all the ownersseems to be clear, for so recently as in December, 1919, tbe deed in favourof the plaintiff himself purported to convey to him only undivided sharesof the lands.
If there had been a formal division in 1898, as alleged by plaintiff,which was acted upon, I would have expected the plaintiff’s deed toconvey to him the defined portion which he now states he is entitled to.
The plaint seems to suggest that the arrangement by which theplaintiff came into possession of a defined block was -made' after hispurchase, but no attempt has been made to establish such an arrange-ment subsequent to his purchase*
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There seems to be little doubt* upon the evidence* that the trackclaimed by the plaintiff has been used as a cart road for many years* fora deed No. 7*989 dated March 24* 1906 (F 2), under which defendant’sfather purchased a portion of the land in question* specifically excludesthe '* road running from the road bordering the eastern boundary tothe wela”; it is proved by the vendor on that deed that the road therereferred to as being excluded is the road now claimed by plaintiff.
I am not satisfied that the plaintiff is entitled to the defined lot Aclaimed by him, and I must hold that he is only entitled to the undividedshares set out in paragraph 2 of the plaint.
That being so, the plaintiff cannot, as admitted by his counsel* claimthe servitude in question* as the land is held in common by him with thedefendant and others.
I decide all the issues against the plaintiff. Let judgment be entered,dismissing the plaintiff’s action* with costs.
A. St F. Jayawardene, K.C. (with himTF. H. Perera), for appellant.
E. W. Jayawardene (with him E, O. P. Jayatileke), for respondent.
May 8, 1922. Bertram C.J.—
This case turns entirely upon a point of law, namely, whether oneof the owners of a dominant tenement who acquires an interest in aservient tenement thereby loses his servitude over the latter.
The plaintiff sought to establish that there had been an informalpartition of the servient tenement* and that his interest in that tene-ment had been converted into a divided interest; and further* thatthe part allotted to him was a part through which the right of wayin question lay. This was a question of fact, andwas decided againstthe plaintiff by the learned Judge* who held that the interests of thevarious persons entitled to the servient tenement must be still con-sidered as undivided interests. He understood counsel for theplaintiff in the Court below to admit that no servitude was possibleover the land if the plaintiff held only an undivided share of it* andaccordingly gave judgment for the defendant.
In this Court it was contended that the learned District Judge hadmisunderstood plaintiff’s counsel, that he intended to make no suchadmission, and that in law one of the owners of the dominant tene-ment does not lose his servitude over the servient tenement byacquiring an interest in the latter.
It was further urged that, even if it were the case, counsel forthe plaintiff in the Court below had mistakenly given up this point,it was . still possible for the proposition to be re-asserted in appeal.This contention appears to be sound. Mr. A. St. V. Jayawardene,who appears for the plaintiff, cited to us two Indian cases—27 Cal.L. J. at p. 499, where it was laid down that “ an erroneous admissionof counsel on a point of law has no effect, and does not preclude theparty from claiming his legal lights in the Appellate Court.” See
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also 38 Cal.-81 and Wattes v. Wattes.1 The principal point is there'fore open for argument. In any case no formal note of the suggestedadmission was made in the learned Judge’s notes, and-it is by nopieans dear to me that he correctly appreciated the .position ofplaintiff’s counsel.
On the point of law above defined plaintiff is entitled to succeed.The principle involved is that o£ the extinction of servitudes byconfusio. A servitude is extinguished when the servient anddominant land meet in the same hand, but there is no such confusionnlflBB the interest of the proprietor in both tenements is identical.As it is putina passage of the Digest 8, 3,27:Servitus extinguiturquia par utriusque dotnini ius in utroque fundo esse incipit.” It isexpressely laid down by Voet that an action claiming the existenceof a servitude is open even to a co-owner (etiam soda) wherever atenement owned in common is servient to a tenement which is theproperty of one of die oo-owners, or wherever a tenement which isthe property of one of the co-owners is servient to a tenement held incommon. (See Voet 8,5,1.) This is supported by various passagesfrom the Digest. Some of these may seem to relate to cases in whichthe interest acquired in a servient tenement is a divided interest.But there is one passage, that already quoted, which dearly relatesto undivided interests only. Si proprio meo fundo et propria tuoidem sermat manebit serribus, that is to say: “ If you and I are severallythe owners of tenements to both of which another tenement isservient, and we jointly buy that servient tenement, the servitudeis not extinguished ” 8, 3, 27. See also Wesenbecius 8, 6, 2: “ Utautem usu&fructus consolidations, ita servilities confusions extin-guuntur ; si idem utriusque prsedii dominvs in soUdum esse cceperit.Dico. in soUdum; nam si pro parte tantim, fiat dominvs pro parteservittiftem etiam totam retinebit.”
This question never seems to have arisen in TOngTinb law in thisform, but a corresponding question was discussed. (See Gate onEasements, 9th ed., p. 453): “ But in order that the easement shouldbe entirely extinguished, it is essential that the owner of die twotenements should have an estate in fee simple in both of them of anequally perdurable nature.” See Co. Lift. 313 a: “ They are saidto he extinguished when they are gone for ever, et tunc mmimtur,and can never be revived, that is, when one man hath as high andas perdurable an estate in the one as in the other.” It is thus hddthat to bring about a permanent extinction the estates must he ofthe same duration. American authorities have, however, gonefarther. Mr. A. fit. V. .Taya wardens haa nited tr>ng from an Aiwarinanbook, Freeman on Co-tenancy and Partition,, paragraph 187, anAmerican decision, Seed v. Wedtfi where the following principle isenunciated: “ A unity of possession or right that extinguishes aprescriptive right must he such that the party should have an estate
1 S 0. W. B. atp. m.* 18 Gray 884.
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in,the land a qua and in the land in qua, equal in duration, quality,and all other .dHomnstanees of right/* This principle is, in myopinion, identical with that of our own law.*
For these reasons the jteintifl, in my opinion, is entitled to theallowance of bis appeal, with costs, both here and in the Oourt below.
Sghneideb J.—I agree.
PERERA v. SAMARAKOON