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Present: Wood Renton J. and Grenier J,
June S, 1911
RANHAMY v. WIJEHAMY.
130—D. C. Kurunegala, 3,961
Public road—Obstruction—Action by private individual—Special damage.
A private person who seeks to recover damages for the obstructionof a public road is bound to prove that in consequence of suchobstruction he has suffered special damage.. By special damage ismeant some particular damage to him in addition to the generalinconvenience occasioned to the public. Where plaintiff provedthat owing to the obstruction he had no longer a proper road bywhich he can take his cattle to the market; that he had to go bya round-about way of two miles so as to reach his paddy fields ;that he had to hire out cattle for the cultivation of his fields, instead 'of, as before, cultivating them by his own cattle; that he- hadto take all his produce to market by the long road above referred. to, and to pay hire for its transport :■—
Held, that this was evidence of special damage within the meaningof the English law.
rjpHE facts are set out in the judgment.
H. A. Jayewardene (with him Rosairo)', for the defendant,appellant.—The plaintiff has not established a right of servitudewith respect to the paths. The finding of the District Judge thatthe paths are public paths is not supported by the evidence. Fora path to be declared a public path the user must have been fromtime immemorial ; thirty years can hardly be said to be timeimmemorial. See Allishamy v. Arnolishamy.1
Even if the paths be public paths, the plaintiff cannot succeedunless he proves special damage. The plaintiff has proved no specialdamage peculiar to himself, as distinguished from others who mayuse the road. Counsel cited Satuku v. Ibrahim,2 Winterbotham v.Lord Derby,9 De Silva v. Weerasinghe,4 Don Davith v. Agiris,5Pollock on Torts 405, 2 S. C. C. 195.
Vernon Grenier (with him A. St. V. Jayewardene), for respondent,not called upon.
June 5,1911. Wood Renton J.—
The plaintiff-respondent sued the defendant-appellant, in thisaction for a declaration of a right of way along two paths, A, B and
Cur. adv. vult.
1 (1898) 1 Tam. 26.
3 (1S77) 2 Bom. 406.
3 2 Ep. 316.
* (1896) 1 N. L. R. 308,
1 (1902) 1 Bal. J52.
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June Sf 1911
A C, in the plan filed in the case, and also for damages for theobstruction** of these paths by the appellant. The respondentbased his claim on prescriptive title and immemorial user. Theappellant denied the right of way which the respondent claims.The case went to trial on a great number of issues, some of whichseem superfluous, but none of which raised the questions whetherthe roads over which the right of way was claimed were public, orwhether, apart from prescription and immemorial user, the respon-dent was entitled to a right of way by necessity, or either, or bothof them. Evidence was led on both sides, and the learned Districtjudge held that the roads A B and A C were public paths, and thatthe respondent had a right of way over them. For the purposes ofthe present appeal we must take the finding of the District Judgethat the roads in question were public as correct. There is evidenceshowing that they have been used as such by the villagers for aperiod of time that may fairly be reckoned as immemorial. I donot think that we ought now to allow that point to be re-opened,or, on the other hand, to permit the respondent to contend that hehas in any way established a right of way by necessity. The casewas argued before us on the basis that its decision depended on theprinciples of English and not of Roman-Dutch law, and to thatground also I would adhere in disposing of the appeal. If theappellant would have stood in a better position under the Roman-Dutch than under the English law, we may be quite sure thatMr. Hector Jayewardene would not have failed to take the pointon his client’s behalf. The finding of the District Judge as to theobstruction of the paths by the appellant must also be taken ascorrect. There is ample evidence in the record to support it.
The respondent, therefore, seeks to recover, under the principlesof English law, damages for the obstruction of a public road by theappellant. He is bound, therefore, to prove that in consequenceof such obstruction he has suffered special damage, and by specialdamage is meant some particular damage to him in addition tothe general inconvenience occasioned to the public. (See De Silvav. WeerasingheSatkuvalad Kadir Sausae v. Ibrahim AgavaladMirza Aga,2 where numerous English decisions on the point arecollected, and Don Davith v. AgirisA The respondent’s right ofaction will not, however, in my opinion be taken away, if he hasas a fact suffered damage over and above the inconvenience whichthe mere obstruction has caused to the public as a whole, by thefact that one or more individual members of the public may havesuffered special damage of the same kind. That circumstancemight confer a right of action upon them. It could not take awaythe respondent’s right of action. If that is a correct statement ofthe law, the evidence as to special damage is as follows. The
a (1877) I. L. R. 2 Bom. 467.3(1902) IBal. 162.
1 (1896) 1 N. L. R, 308.
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respondent says there is no longer a proper road by which he cantake his cattle to the market; that he has to go by a round-aboutway of two miles so as to reach his paddy fields ; that he has now tohire out cattle for the cultivation of his fields, instead of, as before,cultivating them by his own cattle ; and that he has to take ail hisproduce to market by the long road above referred to, and to payhire for its transport. It would seem from the record that he wasasked in cross-examination whether he was prepared to swear tothe truth of these statements on the Jataka book, and that he didin fact do so. This evidence constitutes, I think, evidence ofspecial damage within the meaning of English law. It is as muchspecial damage as was proved in the case of Benjamin v. Storr.1
I would dismiss the appeal with costs, but I think that the firstparagraph of the decree should be amended so as to run as follows :“ It is ordered and decreed that the plaintiff be, and he is herebydeclared, entitled to a right of way over the public paths markedA B and A C in the sketch P 1 filed of record.”
Grenier J.—I agree.
June 5, 1911
RANHAMY v. WIJEHAMY