005-NLR-NLR-V-70-CHANDRASIRI-an-another-Appellants-and-WICKRAMASINGHE-Respondent.pdf
TAMBIAH, J.—Chandrasiri v. WicJcramasinghe
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Present: T. S. Fernando, J., and Tambiah, J.
CHANDRASIRI and another, Appellants, and WICKRAMASINGHE,
Respondent
S. C.1511962—D. C. Kandy, 4862fL
Servitudes—Right of way of necessity—Alternative route—Effect.
A right of way of necessity cannot be granted if there is another though lea*convenient path along which access can be had to the public road.
Appeal from a judgment of the District Court, Kandy.
C. Gooneratne, Q.C., with R. Gooneratne, for Defendant-Appellant.
Ranganathan, Q.C., with K. Nadarajah, for Plaintiff-Respondent.
Cur. adv. vult.
December 15, 1965. Tambiah, J.—
The plaintiff, who is the owner of the northern three pelas of a landcalled Diddeniya Kumbure, depicted in plan No. 1903 of 12.1.1961 andmarked X in the course of the pro ceilings, claimed a right of way over thedefendant’s land along the ^bath ABCD on two causes of action, namelyby right of prescriptive user and by way of necessity. After trial the
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TAMJBIAH, J.—Ghandraairi v. Wickramaaingh»
learned District Judge held that the plaintiff respondent had not pres-cribed to this path but granted a servitude by way of necessity. Thedefendant has appealed from this order.
It transpired in the course of the evidence that there is another pathEF along which the plaintiff could have access to the public road.Mr. De La Motte, the surveyor who prepared the plan X, testified that theroad marked EF in plan X appeared to be a well used path and that it ispossible to go along this path to the abandoned brick kiln marked 2 andthe well No. 3 which are situated in the plaintiff’s land. The plaintiff whogave evidence stated that he had only used AB and not the path EF buthe admitted under cross-examination that about 50 or 60 people use theroad EF to get on to this land for the purpose of going to another well inhis land which is marked No. 4 in the plan referred to earlier. He statedthat seven to eight house holders come along the Village Committee pathto this well using the path marked EFGH. He also admitted that thispath had been in existence for at least 20 years.
The second defendant stated that about 60 to 70 people use the path EFto go to the plaintiff’s land from the public road and that this was an oldpath. He also added that there are other paths, apart from this pathclaimed, to go to the plaintiff’s land from the public road to the West.The plaintiff was forced to admit that there are other paths to have accessto his land from the public road but he said that they were not convenient.The road EF runs through Kiri Ukku’s land. The plaintiff-respondenthas led no satisfactory evidence to show that he cannot use this path.When he was asked why he could not use this road he stated that the roadEFGH is only limited to seven or eight houses and that he has not used it.He has led no evidence to show that he would be prevented if he attemptsto use the path EF along which sixty to seventy people pass daily to go tothe well of the plaintiff.
Mr. A. C. Gooneratne, Q.C., who appeared for the appellant, submittedthat a right of way of necessity cannot be granted when there is anotherequally convenient path. It is my view that the path EF can be used bythe plaintiff if he chooses to do so, to have access to the public road.
Mr. C. Ranganathan, Q.C., submitted that every person who owns aland-locked land has got the right to obtain a right of way of necessity ifhe proves that he has no other path which he has acquired either by grantor prescription. In support of this contention he relied on a passagefrom Maasdorp, which is as follows: (vide The Institutes of SouthAfrican Law, Vol. II 6th Edition p. 218).
“ In addition to the above rights of passage, which have their origin,like all other servitudes, in express or implied grant, we have to consideranother kind of right of way windfalls under the class of servitudes ofnecessity, to which allusion has already Been made above, namely,necessary way or way of necessity. It is based on the right which every
TAMB1AH, J.—Ghandraairi v. Wider amaaing he
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owner of land has to communication with the world at large outside hisground, and, with this object in view (whenever no definite path orroad has been allotted to him, by way of grant or acquired for his landby prescription), to claim some means of access to the public roads ofthe country, without which his land would be useless to him. ”
The authorities cited in support of this proposition by Maasdorp areKimberly Mining Board v. Stamfordx, and a passage from Grotius(G. 2.35.7). I have examined these authorities and they do not supportthe contention of Mr. Ranganathan. Hall and Kellaway, in their well-known work on Servitudes, state as follows : (vide Servitudes by Hall andKellaway p. 68) :
“ Nor may a person claim a road ex necessitate over his neighbour’sland on the ground that this property alone intervenes between his landand a public road, whereas he has the use of a road giving access toanother public road, but one which passes over a number of inter-vening properties whose owners may in the future object to his usingit. (Lentz v. Mullin) 2 ”.
It is clear law that such an owner is not entitled to claim a right of wayon the grounds of necessity, if there is another though less convenient road.
The onus lies on a person who claims a right of way of necessity to showthat it is necessary for him to claim this right and when there is analternative convenient route he cannot make this claim. In Lentz v.Mullin 3 Graham J. P. said :
“ The onus of proving a claim of this character is upon the personalleging it, and the claimant alleging it, to succeed, must show that hehas no reasonable or sufficient access to the public road for himself andhis servants to enable him, if he is a farmer, to carry out his farmingoperations. If he had an alternative route to the one claimed, althoughsuch a route may be less convenient and involve a longer and morearduous journey, so long as the existing route gives reasonable access tothe public road, he must be content and cannot insist upon a moredirect approach over his neighbour’s property. ”
The plaintiff has not discharged this onus.
In this case although a feeble attempt was made by the plaintiff to showthat this path EF in plan X was not allowed to be used, he has not ledsatisfactory evidence to show that the owner of the land over which thepath passes had any serious objection if the plaintiff wanted to use it.Kiri Ukku, the owner of the land through which EF passes, has notobjected to 60 to 70 people using this path. No reason has been givenas to why he should object if the plaintiff also uses this path.
i Buck. App. C. 129.•* (1921) E. D. L. 268.
* 1921 E. D. L. 268 at 270.
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ALLES, J.—Seedin v. Sambandan
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The plaintiff stated that he made a complaint to the police when he wasrefused this path. But he has not called any police officer to prove that hemade such a complaint. Further he stated that he only used the path AB.For these reasons I set aside the order of the learned District Judgegranting a right of way of necessity over the path ABCD in plan X anddismiss the plaintiff’s action with costs in both courts.
T. S. Fernando, J.—I agree.
Appeal allowed.