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Present: Schneider J.
SINGHO APPU v. HENDRICK APPU et al.
26—C. R. Balapitiya, 13,893.
Bight o/ co-owner to take carte over common land.
A. part-owner of a land is entitled to use it for taking carts to bishouse which is on the land, provided, by doing so, he does notinterfere'with the enjoyment of the land by his co-owners.
HE plaintiff claimed in this case a cart way over the land called
Timbirigahawatta, of which he was admittedly a co-owner.
He stated that he enjoyed the use of the cart way for over aprescriptive period, and also claimed it as a way ol necessity.The plaintiff also alleged that the defendants obstructed him inthe use oi the cart way, and claimed damages occasioned by thedefendant’s act.
The defendants denied plaintiff’s right to have a cart way and theirliability to pay any damage.
At the trial the following issues were framed: —
Did the alleged right of cart way exist over a prescriptive
period from D to A ?
If so, did the second and third defendants obstruct the way ?
Is plaintiff entitled to a necessary cart way, and on what-
These issues were subsequently altered by the Court to—
Is the road alleged by plaintiff an existing cart way over the
common land ?
Did the second and third defendants obstruct it ?
The learned Commissioner dismissed the plaintiff’s action, withcosts.
Zoysa, for plaintiff, appellant.
E. G. P. Jayatileke (with him Foneeka), for defendants, respondents.April 12, 1222. Schneider J.—
In this action the plaintiff claimed a right of ..cart way allegingthat he was entitled to it by user. It. is an admitted fact, that a*good portion of the cart way claimed by the plaintiff runs througha land which is owned in common by the plaintiff and. the defendants.The cause of action is alleged to have been an obstruction in thispart of the way, or, in other words, that the defendants interfered
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1908. with the plaintiff’s use of the cart way on the land , owned, by -the.plaintiff and the defendants in common. It seems to me that the
J.plaintiff has misconceived his action, and that the issues' tried didSingho^Appu n°t cover the actual facts of the case. It seems to me an elementary
o.Hendrick principle that ttm part-owner of a land is entitled'to use it fortaking carts to’ his house which is on the land,, provided, by doing,so, he does not interfere with the enjoyment of the land by hisco-owners. There is nothing in this case as disclosed , by the eyidenceto show that the use of this cart way on .the common land by the.plaintiff causes injury or damage to the defendants, or that theplaintiff has put the. land ; to. use .tp which he, as an owner, Is hotentitled to put it to, Inhere .is' evidence that the plaintiff has adwelling house ontfa£l^d.- " He iV entitled to a right of way to the.house-by foot, as rWellCias by vehicles, .provided such use does notinterfere with the iegitimate Mjoyment of the land by the otherco-owners. There is- eyiden‘ce- that the* defendahts;. have~ ft dwellinghouse on the common land, and that they, in. fact, use a pairtofthiscart way in order to. reach ’ their house.! It seems to me; therefore,upon tiie facts, that the plaintiff was putting the land to a legitimate,use in taking .carts across it to his house. In my opinion thedefendants were not justified in obstructing the plaintiff’s use of thiscart way. I would, therefore, direct that the defendants be orderedto remove the obstruction complained of, and that they berestrained ;from obstructing the plaintiff from the use of the saidcart way, unless and until, by a properly constituted action theyestablish that the use of such a cart way by the plaintiff isinconsistent, with their rights as co-owners. The plaintiff will havethe costs of the- action and of this appeal. I make no order as tothe claim for "damages.