021-NLR-NLR-V-40-AMARASURIYA-v.-RAMANATHAN-CHETTIAR.pdf
Amarasuriya v. Romanathan Chettiar.
1938Present: Maartensz and Hearne JJ.
AMARASURIYA v. RAMANATHAN CHETTIAR.
167—D. C. Galle, 35,662.
Servitude—Right of cart way—Dominant and servient tenements not adjacent
—Right to claim servitude.
Where the plaintiff claimed the servitude of a cart way over thedefendant's land which was separated from plaintiff’s land by an inter-vening field over which the plaintiff had only a right of footway.
Held, that the plaintiff was not entitled to claim the servitude of acart way unless he was entitled to a similar servitude over the interveningland.
Jj^PPEAL from a judgment of the District Judge of Galle.
Plaintiff as owner of a land called Amukotukande asked for a decla-ration of title to a right of cart way over .Sindamani estate belonging tothe defendant.
Between the plaintiff’s land and defendant’s estate there was anintervening field over which the plaintiff had only a right of footway.
The defendant admitted that plaintiff was entitled to a right of footway .but denied that he had acquired a right to use it for vehicles.
The learned District Judge held that the plaintiff had used the road asa cart way for over ten years and gave judgment for the plaintiff.
H. V. Perera, K.C. (with him E. B. Wikramanayake, Curtis, and Renga-nathan), for defendant, appellant.—Where the dominant .tenement doesnot adjoin the .servient tenement a right of cart way cannot be acquiredby prescription unless the intervening land is subject to the sameservitude. Voet, VIII. 4. 19. The illustrations given by Voet makethat clear. By the same servitude Voet means a servitude of thesame kind. It is true that Maasdorp says some servitude is sufficient.Maasdorp, bk. II. p. 168. But Maasdorp is dealing With servitudesgenerally. What the plaintiff claims in this case is to take a cart .fromthe high road over the defendant’s land to its boundary and take it backto the road again. This is not a right of way which can be said toappertain to .his land. The evidence also is quite insufficient to establishthe acquisition of a right of way by prescription.
Hayley, K.C. (with him N. E. Weerasooria, L. A. Rajapaksa, G. P. J.Kurukulasuriya, and J. R. Jayawardana), for plaintiff, respondent.—Although the dominant and servient tenements do not adjoin each othera right of cart way can be acquired by prescription, if the intervening
MAARTENSZ J.—Amarasuriya v. Ramanathari Chettiar.
87
property is subject to some servitude, and need not be the identicalservitude. It is sufficient if some servitude which brings the servienttenement into touch or communication with the dominant tenement isestablished. Maasdorp (Institutes of Cape Law, bk. II., p. 168).
Cur. adv. vult.
March 17, 1938. Maabtensz J.—
This is an appeal from a decree of the District Court of Galle declaringthe plaintiff, as owner of a land called Amukotukande, entitled to a rightof cart way over Sindamani estate belonging to the defendant along theroute A, B, C, D in plan X.
Amukotukande is to the north of Sindamani estate (hereafte^'referredto as “ the estate ”) but does not adjoin it. Over the intervening parcelsof land which do not belong to the defendant there is only a footpath.The cart road commences-at the northern boundary of the estate andjoins the GaHe-Akuressa high road on the south. The cart road is marked(reading from the north) A, B, C, D.
The plaintiff’s case is that he had acquired by adverse user for over tenyears a right of cart way from the main road to the point A, and a rightof footway from A to Amukotukande, and that the defendant had sinceJanuary 25, 1937, obstructed the cart road at the points A, B, and C insketch P 1.
The defendant admitted that the plaintiff was entitled to use thecart road as a footway but denied that he had acquired a title to useit for vehicles. It was admitted that plaintiff had occasionally drivenhis car only along the road, but that user was said to have beenpermissive.
The evidence of user by the plaintiff is meagre but I am not prepared tosay that there is insufficient evidence to justify the District Judge’sfinding that the plaintiff used the road as a cart way for over ten yearsand that the user was not permissive.
The main defence to the claim both in the District Court and in appealwas that under the law regulating the enjoyment of servitudes, the plain-tiff could not acquire a servitude of a cart way over the estate as there wasno right of cart way over the fields which lie between the estate and thedominant tenement. In support of this defence we were referred to Voet,bk. VIII., tit. 4, s. 19, which reads as fQllows: —
“ There is, lastly, this common characteristic, that in every praedialservitude the dominant and servient tenement ought to adjoin oneanother; which proximity, however, ought to be judged rather fromthe advantage which is afforded and the capability of a servitude beingimposed, than from the fact that the two properties touch one another.For although there is a distinction between urban and rural servitudesin this, that whilst as a rule, in the case of rural servitudes a servitudeis prevented by an intervening tenement not subject to a servitude,nevertheless, in urban servitudes it is not so ; for the servitude prevent-ing the blocking up of lights or view, or preventing the raising of
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MAAftTENSZ J.—Amarasuriya v. Ramanathan Chettiar.
buildings, can be imposed on a tenement between which and thedominant there is another tenement, the liberty of which remainsintact; provided only that the dominant and servient tenements arenot so far distant from one another that they cannot be seen the onefrom the other. But in rural servitudes as well, a tenement notbordering on the dominant tenement can be subject to a servitude to it,if only the intermediate tenement owes the same servitude. For whichreason it became the custom that water could lawfully be led by rightof servitude through the adjoining estates of more than one person,and that one and the same servitude of passage, driving, and way,could be constituted over several farms of several owners; and the rightof drawing water was not stopped by the fact that there existed anintervening public road or place ”.
Voet uses the word “ same ” in the sense “ of the same kind Thatappears from his illustrations. -If water could be led through each of twoadjoining estates, the servitude being the same, the water can be led fromthe farther, through the nearer, up to the dominant tenement. Similarlya servitude of passage, driving, and way can be constituted over threefarms with separate owners if there was a servitude of passage, of driving,and of way respectively over each of the three farms. Voet does not saythe servitudes of passage, driving and' way. If this interpretation of Voetis correct, the servitude of cart way cannot be acquired by theplaintiff even if he had used the cart way as such for the prescriptiveperiod.
Maasdorp (Institutes of Cape Law, bk. II., p. 168) dealing with therequisites of proximity says (citing Voet VIII., 4, 19 as his authority).“ An urban servitude, for instance, may subsist though the two tenementsare separated by intervening properties which are free from servitude ;but this cannot be the case with respect to rural servitudes, which requirethat the intervening properties shall be subject to some servitude, thoughnot necessarily the same as the servient property, in order to bring thelatter into touch or communication with the-dominant tenement
The respondent’s Counsel contended on the authority of this passagefrom Maasdorp that plaintiff could acquire a right of cart way over theestate as the footway over the intervening tenement brought the estate,into touch or communication with the dominant tenement.
I do not think this is a correct construction of the effect of the passagein Maasdorp (if it is, it is contrary to Voet). The dominant and servienttenements not being physically in touch, the servitude, whatever it is,over the intervening tenement, must be of such a kind as enablesthe plaintiff to exercise the right of cart way up to the dominanttenement.
The servitude of footway only over the intervening tenement precludesthe plaintiff from taking his carts or other vehicles up to the dominanttenement. The servitude therefore does not entitle him to claim the cartway sued for.
HEARNE J.—Balasubramanian Pillat v. Valltapa Chettiar.89
The passage in Voet is not inconsistent with the passage in Maasdorp,Voet was referring to servitudes which are continuous between thedominant tenement and the other terminus such as the servitudes ofleading water passage driving and way. Maasdorp was referring toservitudes generally and in the case of some servitudes the servitude overthe intervening land need not be the same. As for instance the servitudeaquae haustus which could be enjoyed by the dominant tenement even ifthere is a land intervening if it has a right of way over the interveningtenement.
In my judgment when the servitudes sure of the character referred toby Voet the servitude over the intervening tenement must be of the samekind. The plaintiff’s action therefore fails and -must be dismissed withcosts in both Courts.
Hearne J.—I agree.
Appeal allowed.