079-NLR-NLR-V-66-W.-PERERA-Appellant-and-C.-RANATUNGE-Respondent.pdf
BASNAYAKE, C.J.—Perera v. Ranatunge
337
1964Present: Basnayake, C.J., and Abeyesundere, J.W.PERERA, Appellant, and C. RANATUNGE, Respondent8. C. 12511961—D. C. (Inty.) Colombo, 9443}L
Servitude of light and air—Claim thereto by prescription alone—Maintainability—
Prescription Ordinance, ss. 2, 3.
The plaintiff and the defendant were owners of adjoining premises. Theplaintiff asserted that the defendant was not entitled to erect a multi-storeyedbuilding on his land because it would deprive him of the light and air whichhis own' building had received through certain windows which overlooked thedefendant’s land. The trial Judge held that the plaintiff had by'“ prescription obtained the servitude ne luminibus officiatur
Held, that a right of servitude of light and air cannot be acquired by prescrip-tion by mere enjoyment, i.e., by the mere fact that the neighbour has not builton his land for any length of time.
Pillay v. Fernando (1912) Id N- L. R. 138 not followed.
.A.PPEAL from an order of the District Court, Colombo.
H. V. Perera, Q.C., with H. W. Jayewardene, Q.C., C. 0. Weera-mantry, N. S. A. Goonetilleke and D. C. Amarasinghe, for Defendant*Appellant.
C. Ranganathan, with E. B. Vannitamby and K. N. Choksy, forPlaintiff-Respondent.
Cur. adv. vult.
July 15, 1964. Basnayake, C.J.—
This is an appeal against the order of the District Judge directing thatan injunction be issued to the defendant-appellant (hereinafter referredto as the “ appellant ”) restraining him from further proceeding with theconstruction of the Eastern wall of his building pending the final deter-mination of the action instituted by the plaintiff-respondent (hereinafterreferred to as the “ respondent ”).
The appellant and the respondent are owners of adjoining premises inNorris Road. The former owns premises No. 59 (at one time 55a, 57 &59) and the latter No. 61. No. 59 was till about June 1960 a buildingwith one floor and No. 61 a building, with two floors. The appellantpulled down his house and erected thereon a multi-storeyed buildingwhich rose above the respondent’s building. The result was that thelight and air which the respondent’s building had received through certainwindows which overlooked the appellant’s land were cut out. The res*pondent asserted that the appellant was not entitled to build any structureon his land which deprived him of light and air. This action was accord*ingly instituted in assertion of the right he'claimed, The learned DistrictLxvr—15
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BASNAYAKE, C. J.—Perera v. Banatunge
Judge held that the respondent had by “prescription obtained theservitude ne luminibus offlciatur ”. He rested his decision on Neatev.Abrew 1 which he regarded as binding on him. Learned counsel for theappellant submitted that, although Neate v. Abrew (supra) is shown in. thereport as a decision of three Judges, it is in fact a decision of two Judgesand is not a decision of the then Collective Court. This submissionfinds support in the following statement at page 127 of the report—
“ The appeal was argued on the 26th September, 1882, beforeClarence and Dias, J.J. It was afterwards arranged, with theconsent of counsel on both sides, that De Wet, A.C.J., should befurnished with a note of the authorities cited, and should take part inthe decision of the appeal.”
We agree that the decision cannot be regarded as a decision of the thenFull Bench of three Judges, as the appeal was heard only before two of thethree Judges who have delivered judgment. We are fortified in our viewby the following observations of Bonser C. J. in a similar case (Perera v.Pody Sinho a)—
“ But, as I said before, the respondent relied upon what he allegedwas the decision of a Full Court, which would be binding on me, holdingthat no appeal lay in a case like the present. But, on examination ofthis case, it will be seen that it is of no authority. What happened wasthis. The late Chief Justice and Mr. Justice Lawrie sat together to hearthe appeal. They were unable to agree upon the admissibility of theappeal, and, instead of the case being referred to a Full Court for argu-ment and decision, counsel on both sides agreed to leave the matter tothe arbitrament of the third judge. The third judge, after reading thecase, but without hearing any argument, expressed the opinion that anappeal did not lie. It is quite evident that that expression of opinionof the third judge could have no binding effect on the parties unlessthey had agreed to accept it. That being so, it is of no use citing it a i anauthority, and I cannot understand why any reporter should havethought fit to report it.”
The decision has therefore not the binding effect of a decision of the FullBench. In our opinion Neate v. Abrew (supra) is not a decision whichcan be regarded as authoritative.
Before parting with the case of Neate v. Abrew we should not fail torecord our respectful dissent from the case Pillay v. Fernando3 whereinfollowing Neate v. Abrew it was held that a right of servitude of light andair may be acquired by prescription by mere enjoyment, just as much asany other servitude. Wendt J., while agreeing that under the RomanDutch Law mere enjoyment however long was not sufficient to create anegative servitude and that a positive act of adverse possession extendingover the prescribed period on the part of the dominant tenement wasneeded, held that he was bound by the decision in Neate v. Abrew which he,without close scrutiny, regarded as a decision of the Full Court. But
1 {1883) 5 S. C. C. 126.2 {1901) 5 N. L. R. 243 at 244-245.
(1905) 14 N. L. R. 138,
fiASNAYAKE, C.J.—Per era v. Randtunge
§3$
some of the dicta expressed therein emphasise, though not sufficiently,that the servitude of ne luminibus officiatur cannot be acquired by the merefact that the neighbour has not built on his land for any length of time.District Judge Lawrie, whose judgment is reproduced in the report, says—-
" I am of opinion that the mere circumstance of having made no1objection to his having opened these windows does not infer acquiescenceby the defendant, nor confer on the plaintiff a right to prevent hermaking full use of her own property.”
Clarence J. having said—
• “ There can be no question but that, under the Roman-Dutch Law,a negative servitude such as this could not be acquired by prescriptionin virtue of bare enjoyment such as plaintiff has had in this case.”
goes wrong when he says, on an incorrect reading of the decision in thecase of Ayanker Nager v. Sinatty1—
“ The result then is that the mere uninterrupted enjoyment for tenyears (not of course by express permission or licence) of window rights,deriving light from a neighbour’s land, entitles the owner of the windowsto have an adjoining landowner restrained from building so as to obscurethem.”
It is common ground that the Roman Dutch Law of acquisitive pres-cription ceased to be in force after Regulation 13 of 1882 and that therights of the parties fall to be determined in accordance with the provi-sions of the Prescription Ordinance. It is now settled law that the Pres-cription Ordinance is the sole law governing the acquisition of rights byvirtue of adverse possession, and that the common law of acquisitiveprescription is no longer in force except as respects the Crown. Thequestion that arises in the instant case has therefore to be decided byreference to that Ordinance. But it would not be entirely irrelevant toadd a word or two on the Roman Dutch Law before examining theprovisions of that Ordinance.
Although opinion appears to be divided among Roman Dutch Lawwriters, the better view appears to be that a servitude cannot be acquiredby mere inaction or by the mere assertion by one party that another hasnot got certain rights, or by forbidding the other from exercising hisrights. Mere abstention from doing something at the request of a neigh-bour does not give rise to a servitude (Schorer’s Notes to Grotius, Bk.II34.20). In the case of Ellis v. Laubscher2 the South African AppellateDivision had occasion to examine the old and modem authorities onnegative servitudes, and it formed the conclusion that there must be, asin the case of positive servitudes, adverse possession to acquire a negativeservitude. The nature of adverse possession in relation to the acquisi-tion of a negative servitude by prescription is discussed in that case.Savigny too examines the problem (Possession, 6th Edn. Perry’s Transla-tion) at pages 384-386. He takes the view that possession of a negativeservitude cannot be acquired by mere passiveness on the part of the oppo-site party, but that user as of right is required. He comes to the conclusion1 Ramanathan 1860-62, p. 75.8 (1956) 4 S. A. 692 (A. D.)
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B A SN AYAKE, C.J.—Per era v. Rar.atunge
that possession of a negative servitude may be acquired by adverse userand by legal title. It would also appear from the judgment in the SouthAfrican case, which is in Africaans and which has been read to me, andfrom the extracts from the commentators referred to in a note in Volume74 of the South African Law Journal at page 135 that there has been nojudgment either of the Courts of Holland or South Africa wherein it hasbeen decided that a negative servitude had been created by prescription.We are in entire agreement with the view of the learned author of the notethat the creation of a negative servitude by prescription is subject torequirements which are so difficult to fulfil that the creation of such aservitude is a theoretical rather than a practical possibility.
Now as to the Prescription Ordinance, section 3 of that Ordinancereads—
“ Proof of the undisturbed and uninterrupted possession by adefendant in any action, or by those under whom he claims, of lands orimmovable property, by a title adverse to or independent of that to theclaimant or plaintiff in such action (that is to say, a possession un-accompanied by paymentof rent or produce, or performance of serviceor duty, or by any other act by the possessor, from which an acknow-ledgment of a right existing in another person would fairly and naturallybe inferred) for ten years previous to the bringing of such action, shallentitle the defendant to a decree in his favour with costs. And in likemanner, when any plaintiff shall bring his action, or any third partyshall intervene in any action for the purpose of being quieted in hispossession of lands or other immovable property, or to prevent en-croachment or usurpation thereof, or to establish his claim in any othermanner to such land or other property, proof of such undisturbed anduninterrupted possession as herein before explained, by such plain-tiff or intervenient, or by those under whom he claims, shall entitle suchplaintiff or intervenient to a decree in his favour with costs :
Provided that the said period of ten years shall only begin to runagainst parties claiming estates in remainder or reversion from the timewhen the parties so claiming acquired a right of possession to theproperty in dispute.”
The question for decision is whether the respondent possessed the lightwhich his windows received at the time, the appellant erected his newbuilding. Adverse possession has to be evidenced by some positive actor acts from which the fact of such possession can be inferred. As aptlystated in Ayanker Neger’s case (supra)—
f' Altogether the Supreme Court has no d oubt that the words ‘ posses-sion of immovable property ’ in the Ordinance may apply to enjoymentof a right of way. There must be actual enjoyment, not mere claim oftitle or abstract right, and the Supreme Court may define £ possession ’,when applied in legal language to a servitude, such as the jus itineris,to be the exercise of a jus in re, with the animus of using it as your ownas of right, not by mere force, not by stealth, and not as a matter offavour, nec vi nec clam, nec precario."
BASNAYAKE, C.J.—Perera v. Ranatunge
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the Ordinance makes no distinction between positive and negative servi-tudes. The elements that must be proved to obtain a decree are the samein respect of both.
The inaction of the appellant over the act of the respondent in providingwindows in his Western wall does not amount to possession by the res-pondent. His act only gives rise to the inference that he was acting asowner of his own building and not as owner of anything of which theappellant was owner. By exercising his rights over his own land, aperson cannot acquire a right over his neighbour’s land.
To satisfy the requirements of section 3, possession must be by anadverse title. The mere assertion by one party that another has not gotcertain rights or that he forbade the other to exercise such rights, eventhough the other may also acquiesce therein, does not give rise to anadverse title whereon a claim of prescription can be based. Possession inthe Ordinance has to be given its ordinary meaning, and the light and airthat are enjoyed, because the neighbour has not built higher, cannot besaid to be possessed by the land owner who derives benefit therefrom.The opinion we have formed is in accord with the enactment and createsno hardship. In fact it does away with the hardships that the hithertoreputed view of the Roman Dutch Law created.
In this connection it is not irrelevant to note that the Law of Scotlanddoes not recognize negative servitudes which are not evidenced by agrant from the servient owner. The following quotation from Erskine’sPrinciples of the Law of Scotland (19th Edn.), page 213, sets out the law—
“ The servitudes (non aedificandi), altius non tollendi, et non officiendiluminibus vel prospectui, restrain proprietors from raising theirhouses beyond a certain height, or from making any building (at all, orany) that may hurt the light or prospect of the dominant tene-ment. These servitudes (being negative) cannot be constituted byprescription alone; for though a proprietor should have built hishouse ever so low, or should not have built at all upon his grounds forforty years together, he is presumed to have done so for his own con-veniency and profit; and therefore cannot be barred from afterwardsbuilding a house on his property, or raising it to what height he pleases,unless he be tied down by his own consent.”
Stair puts it even more forcefully when he says—
“ These servitudes of light or prospect cannot be introduced by theenjoyment and use thereof, though time out of mind ; ” (Institutionsof the Law of Scotland, Vol. I, p. 408).
The inclusion of the word “ servitude ” in the definition of immovableproperty in section 2 of the Prescription Ordinance does not have theeffect of re-introducing the Roman Dutch Law of servitudes which it isnow settled by the decisions of this Court and of the Privy Council hasbeen replaced by the Prescription Ordinance which requires possession of
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SANSONI, J.—Piyadasa v. The Queen
the type contemplated in the Ordinance for the acquisition of any rightin land. It would appear that the words “ easement ” and “ servitude ”in the definition have been put in there to remove any doubt that when theOrdinance speaks of immovable property the servitudes that have beenacquired in respect of any land or to which it is subject are included. Thelearned District Judge is in our opinion wrong in holding that theplaintiff is entitled to a decree in his favour.
The order of the learned District Judge is set aside with costs and wedirect that the record be sent back so that the trial may proceed.
Abeyesundere, J.—I agree.
Order set aside.