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ll™.ALWIS v. SILVA.
My6‘C. R., Colombo, 152 and 153.
Servitude—Jus vies ex necessitate—Action for compelling adjacent landownerto accept compensation and give land enough for broadening an existingfootpath.
The owner of a land having a jus Vice over another's land may. justlymaintain an action against him for the broadening of the path so as to -admit of his carts having ingress and egress for purposes of his trade,provided that such extension is absolutely necessary and no material lossaccrues as the result thereof.
HE plaintiff,, being the owner of the land figued in the sketchappearing at foot, averred that the public cart way nearest
thereto was a 16-feet wide road from the burial ground to the highroad; that he had quiet use and occupation of the path or passageD C from that public road to his garden for many years, but that,in view of his owning several carts and being a carpenter and cart
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builder, and in view of the situation of his land and workshopsand buildings in relation to the publio road, it had became neces-sary that he should have a full right of passage for drawing andcarting stones and wood from the public road to bis land and backagain, and that the passage D G should be widened so as to admit of
carts passing and repassing; and that it was necessary that the *
portion A belonging to the defendant in the present case andportion B belonging to the defendant in C. R., Colombo, 152, inextent 20 and 49| square links, and in value Rs. 2 and Rs. 3 res-pectively, should be added to the footpath, but that the owners of Aand B refused to accept the compensation offered' op fix any othercompensation. He therefore sued each owner in a separate actionand* prayed that they severally and respectively might be orderedto transfer the portions required to the plaintiff and grant plaintifffull right of way over the same on his paying him the said sumsfor compensation or any other sum that the Court would deeman adequate and equitable price, and that on his depositing suchsums the Court would evict each defendant from the saidportions.
The defendant in each of these cases denied plaintiff’s . right tomaintain the action. The Commissioner (Mr. Smart) dismissedboth actions.
Bfowne, for appellant.
Domhorst, for respondent.
Cur. adv. vult.
6th July, 1882. De Wet, C.J.-—
The appellant’s (plaintiff’s) claim is for the right to encroach upontwo small pieces of lands, the properties of the defendants, for thepurpose of allowing him the necessary egress and ingress to thatproperty, which is situated in the immediate vicinity of theproperly of defendants (vide plan put in), being at the same timeready and willing to pay to the defendants whatever compensa-tion may be considered fair and reasonable for such encroachment.
From the evidence of the appellant I am quite satisfied that heis entitled ex necessitate to the right of way he seeks. Not onlyhas he no other reasonable means of obtaining access per mamto his property, but the pieces of land over which he seeks toobtain this right are very small indeed, and in addition to thisthe defendants have failed to show that by plaintiff’s obtainingthis right they would be materially affected in the enjoyment oftheir rights to their property.
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1882, Upon the authority of Voet, 8, 8, 4, and the authorities thereinJtdy6. cited, I decree that upon payment by the appellant to respondentsDb Wet.CJ. the sum. of Es. 8, the amount tendered, and upon his providingmeans for closing up any aperture or apertures that may bemade upon the properties of the respondents by the appellant,the appellant shall have and enjoy the right of way (jus vtie)over the properties of the respondents marked A and B upon theplan put in at the trial in the Court below.
[The decree entered in case No. 153 was as follows:—. ,
That the decree of the 30th day of March, 1882, be set aside, and1it is decreed that on the plaintiff paying to the defendants the 6umof Es. 8 as, and for, the just price or compensation due to* thedefendants in respect of the defendants granting to the plaintiffthe full right of way hereinafter described, the defendant do grantto the plaintiff a full right of way over the triangular portion ofground belonging to the defendant, and bordering the property’of the plaintiff marked B, and coloured pink, in the survey madeby Juan de Silva, dated the 9th day of August, 1881, filed in thiscase, which portion measures 14.2 links on the southern andeastern sides, 8 links on the western side, and 11 links on the.northern side thereof; and that the plaintiff should be placed and,quieted in the possession of the said right; and that the plaintiffon being placed in such possession shall forthwith properly fenceand enclose the land of the defendants along the said 14.2 linksnorthern and western sides of the said portion in the same manneras the other two sides of the said portion are presently fenced andenclosed, and as part of the said fence to be erected by him shallmake, construct, and erect for the defendants a gateway and gate7J. feet in breadth and 4 feet in height, which fence and gate theplaintiff has at the hearing of this appeal undertaken by hiscounsel so to .construct and erect, and that the defendants do payto the plaintiff the costs of this action both in the said Court of.Bequests and in this Court.]