107-NLR-NLR-V-49-ADONIS-FERNANDO-et-al.-Appellants-and-LIVERA-Respondent.pdf
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Adonis Fernando v. IAvera
1948Present: Basnayake J.
ADONIS FERNANDO et al., Appellants, and UVERA,Respondent.
S. C. 59-60—C. R. Negombo, 45,880.
Right of way—Presumption against servitude—Way of necessity—What must beestablished—Path from one land to another.
A person is not entitled.to a way of necessity for the purpose of going fromone land owned by him to another.
1 (1933) S. L. T. (Sh. Ct) 21.9 (1921) 1 Ch. Div. 404,
BA8NAYAKE J.—Adonis Fernando v. Livera
351
^^PPEAL from a judgment of the Commissioner of Bequests, Negombo.
H. V. Perera, K.C., with K. C. de Silva, for the third, fifth, and sixthdefendants, appellants.
E. F. -Ar. Gratiaen, K.C., with D. W. Fernando and Cyril E. S. Perera,for the plaintiff, respondent.
Cur. adv. mdt.
April 19, 1948. Basnayake J.—
The plaintiff-respondent (hereinafter referred to as the plaintiff) is theowner of a land called Kottangahawatta in extent 1 rood and 30 percheswhich he purchased in 1942. The first and second defendants own theland adjoining it on the north-west, the third defendant the adjoiningland on the north-east, and the fourth defendant the land to the north ofthe third defendant’s land. The land between the fourth defendant’sland and the Village Committee road to the north is also the property ofthe third defendant. The fifth and sixth defendants are minors and it isnot clear why they have been made parties. They appear by theirguardian ad litem, the third defendant. To the south of Kottangaha-watta is a hamlet called lhalapetigoda of about 15 acres in extent inhabitedby about 15 families. The plaintiff owns another land known as Katu-kenda 108 acres in extent in the same village which abuts on the highroad to Giriulla. From Kottangahawatta it is about 40 yards to theclosest point of Katukenda. The hamlet of Ihalapetigoda is surroundedon three sides by Katukenda and on the other by Kottangahawatta sothat it is hemmed in on almost all sides by the plaintiff’s lands. Theinhabitants of the hamlet gain access to the Village Committee road to thenorth by the public footpath over which the plaintiff claims a cart-way.This footpath is not of uniform width throughout. It appears that itvaries from three to about eight feet, but the evidence on this point isnot precise.
The plaintiff claims that he and his predecessors in title of the landKottangahawatta have enjoyed for over ten years a right of cart-way fromthe point A on his land to the point C on the Village Committee roadto the north as depicted in plan X produced in these proceedings, andhave thereby acquired a title by prescription to the said cart-way.Alternatively he claims a right of cart-way of necessity along the sameroute.
The right the plaintiff, claims is what in Roman-Dutch Law is called areal servitude, which cannot exist nor be understood to exist apart fromimmovable property ; inasmuch as “ real servitudes are only accidentsand conditions attaching to immovable property” (Voet 8.1.1.). Voetsays in the same connexion 1:—
“ Servitudes are real, when indeed one thing is .subservient to anotherand so loses some of its own rights while it increases those ofanother. By our laws such servitudes have also been styledpraedial servitudes ; for the reason that for the constitution1 Voet 8.1.2 Hoshyns' Translation.
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BASNAYAKE J.—Adonis Fernando v. I/ivera
and the exercise of such servitudes it is necessary that thereshould be both a dominant tenement in the position of creditorand a servient tenement in the position of debtor of thoseservitudes ; and they have no existence apart from immovableproperty.”
To be entitled to the right he claims, the plaintiff must prove that heand his predecessors have exercised it—
(а)nec m, that is, the exercise of the right must be peaceable,
(б)nec clam, that is, it must be openly exercised and the person
– asserting the right must have suffered no interference at thehands of the true owner,‘nor must he by any act have acknow-ledged anyone as the true owner,
(c) nec precario, that is, the use must take place without the consentof the true owner. It must not be with his leave and licenceor on sufferance.
It should be noted that knowledge of the owner of the servient tene-ment is not requisite for the acquirement of a servitude by prescription(Voet 8.4.4). The onus of proving all these elements is upon the personclaiming the rightl, z. In the case of Van Heerden v. Pretorius 2,Lord De Villiers C.J. says at page 78 :—
“ It is a settled rule that a person claiming a servitude over the landof another should give clear and convincing proof of the exis-tence of such a right.”
A matter that should always be borne in mind when considering a claimfor a servitude is that our law does not favour anything in the nature of aservitude. The South African decisions show that the attitude of thelaw there is the same.
An examination of the plaintiff’s case in the light of these principlesreveals that he has failed to establish his claim. There is no evidenceat all that he and his predecessors in the dominant tenement Kottan-gahawatta used this cart-way for a period of ten years. The plaintiff is astranger to the hamlet of Ihalapetigoda. He purchased the dominanttenement in 1942 and says he transported coconuts in carts along thecart-way he claims to his Katukenda estate till he was obstructed by thethird defendant in Decern ber, 1943. On the other hand there is a consider-able volume of evidence that his predecessors in title neither transportedtheir nuts in carts nor used the cart-way he claims. Hot more than 300nuts were plucked from Kottangahawatta at a time and these were con-veyed to Katukenda by porters in the time of his predecessor, whose clerkdeposes to this fact.
The evidence of the fourth defendant’s employees completely negativesthe plaintiff’s claim that carts were used on the route A to G in plan X.The third defendant, who owns land on either side of the fourth defendant’sland, says he used carts to convey the produce of his land to the south, butthat he did so with the latter’s permission.
1 S. A. Hotels, Ltd. v. City of Cape Town (1932) C. P. D. 229 at 236.
Uitenhage Divisional Council v. Bowen (1907) JS. D. C. 72 at 79.
1 (1914) A. D. 69 at 76.
BASNAYAKE J.—Adonis Fernando v. Liver a.
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The plaintiff’s evidence was not direoted towards proving the casearising on his plaint. All the evidence given on his behalf was designedto establish a public right of way from the hamlet to the Village Committeeroad. Charles, his ohief witness, and Simion, both claim to have takencarts from their lands which are to the south of the dominant tenementover it and along the route A to G. Charles says that carts were takenon the oocasion of weddings, funerals, &e., in the hamlet. He also claimsto have transported goods for the fourth defendant and others. But allthat ceased eight years ago when he sold his cart.
All this evidence may be relevant if the olaim was for a public right ofway from the hamlet to the Village Committee road or a via vicinalis,but it is of no assistance in establishing the claim now put forwardby the plaintiff. In the case of such roads, use from time immemorialwithout interference by the owner of the land over whioh it runs must beestablished by the clearest evidenoe. Kotz£ J.P. says in the oase ofUitenhage Di visional Council v. Bowen 1 :—
“ A publio right of way is more onerous than any ordinary servitude infavour of individuals ; and before the Court can pronounce thatthe public have a right to use this road to the neoessary detri-ment of the owner of the land, very clear evidenoe of that rightmust be produced.”
T shall now consider the plaintiff’s olaim to a oart-way of necessity.As I observed in my previous judgment in C- R., Balapitiya, oaseNo. 24,420/S. C. 178, a judioial decree for a right of way of necessity isnot given for the mere asking. The plaintiff must discharge the onusthat rests on him. In the words of Graham J.P. 2 in Lentz v. MuUin—
“ The onus of proving a olaim of this character is upon the personalleging it, and the claimant, to succeed, must show that he hasno reasonably sufficient access to the public road for himselfand his servants to enable him, if he is a farmer, to oarry onhis farming operations. If he has an alternative route to the oneclaimed, although suoh route may be less convenient and involvea longer or more arduous journey, so long as the existing roadgives him reasonable aocess to a public road he must be oontent,aDd cannot insist upon a more direct approach over his neigh-bour’s property.”
In the present case it is in evidenoe that the plaintiff’s predecessorstransported their nuts, not by carts, but by porters. The plaintiff’s landis less than half an acre. As I have mentioned earlier, the hamlet ofIhalapetigoda is hemmed in on almost all sides by the lands of the plaintiff.The nearest route to Katukenda estate is only forty yards from Kottan-gahawatta, and the plaintiff’s Katukenda estate abuts on a publio road.Having regard to all these, facts I do not think it reasonable that theplaintiff should ask for a cart way to transport the coconuts from so smalla land. Besides it is not aocess to the publio road that he is seeking, but
(1907) E. D. C. 72 at 80.
(1921) E. D. L. 268 at 270.
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BASNATAKB J.—Wijeratne v. Kueumaxoathie.
to bis other land Katukenda Estate where he has his copra drying sheds.Under our lajv a person is not entitled to a way of necessity for the purposeof going from one land owned hy him to another however convenientand advantageous it may be to the person claiming such a right of way.
The appeal is allowed with costs and the judgment of the learnedCommissioner is set aside. The plaintiffs action is dismissed with oosts
Appeal allowed.