»(1884) 9 A. C. 571.
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May 11,1910 a covering of Ola leaves, the plaintiffs claim the right of entering theOhinnappa adjoining land, as the olas are tied outside the live fence, andv. Kanakar for this purpose coolies have to be on both sides of the fence, topass through the string and tie it. The defendants (first and second)deny the existence of this custom, deny that plaintiffs have acquiredany right to enter their land for this purpose, and further pleadthat if in fact the plaintiffs did enter their land for this purpose,they did so merely with the consent of the proprietors. The mainissues which require consideration are these: —
“ (1) Are the plaintiffs entitled to go into the defendants’ landfor the purpose of tying olas on the outside of their fence ?
“ (2) Can plaintiffs claim a right of servitude of t-bis kind ?
“ Plaintiffs claim the right as a custom; they contend, that thiscustom, viz., of going into the adjoining land for the purpose of tyingolas to the outside of a fence, has existed from time immemorial,and prevails in' every village in the Jaffna peninsula. There isstrong and abundant evidence of leading and well-educated men.in the peninsula, gentlemen holding high positions under theGovernment, who are naturally expected to be acquainted withthe custom of the people. This evidence establishes clearly thatthe prevailing custom is to allow a neighbouring landowner toenter one’s land whenever he wants to repair his fences or coverthe same with ola leaves. The object of the ola leaf fencing is tosecure privacy, as well, doubtless, as to prevent straying cattle fromentering the lands. Again, as to the necessity of placing theseolas outside the live fence, it was explained, and I think quitesatisfactorily, that whenever the fence was the property of anindividual, and not the common property of two adjoining land-owners, the owner of the fence is the only person likely to lookafter it, for fences of suriya and kiluvai trees are of some pecuniaryvalue. At stated seasons the branches are cut and sold for manuringthe gardens. It follows, therefore, that the owner of a fence whichis the source of some income to him, would, if he was also anxiousto screen off his garden or dwelling land from the gaze of the publiceye, naturally place the ola leaves outside the fence. To fix theola leaves properly, it is obviously necessary to enter the adjoiningland, for the ola leaves are piled on the outer side, and the tyingmaterials have to be passed from one side to the other.
“ That this custom has existed for very many years, in factfrom time immemorial, is not only proved by the evidence of twoManiagars of the peninsula—Government officers, who from theireducation and practice are presumed to have an acquaintance withthe customs of the people—by the evidence of other, disinterestedwitnesses, and of the retired Jaffna Maniagar, who has had overfifty years’ service under Government, but its recognition receives,support from the judgment of a Commissioner of Requests in &
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case at Point Pedro, where the same point was in issue. He held May 17,1910the custom existed, and no appeal was taken against that finding.” Ohinnappa
[The Commissioner of Bequests then proceeded to discuss theevidence as to the existence of the custom, and continued. 1
“ I find, therefore, that there is a universal custom in the Jaffnapeninsula which allows the owner of a land desirous of coveringhis fence with ola leaves to enter the adjoining land, and from thatside to put up, heap, and tie the ola to a fence.
“ There is no law on this subject in the Statute Book. It is, however,obviously a custom which has the force of law, and is of the natureof a servitude. It is a servitude because it consists of the right ofdoing something upon the land of another for the benefit of the■doer.1 There is ample, strong, and overwhelming evidence provingthe existence of this custom, and provided the custom is reasonableand certain, it can form the basis of a servitude.2 There is no doubtabout its certainty; there can also I think be no question about itsreasonability. It cannot be said to cause any one'inconvenience; itis one of the customs of the people to enclose their gardens, not onlyto prevent trespass, but also to secure privacy. To carry out thiscustom fences must be put up, and, admittedly, ola fences to protectthe live fences must be put up by entering the adjoining land.
Servitudes can beacquiredby prescription,sothat even ifthere
were no evidenceprovingthe universalityofthis customfrom
time immemorial, there is evidence that the plaintiffs and theirpredecessors in title have been in the habit of going into the defend-ant’s land for this purpose for very many years. All the witnessesfor plaintiffs, who gave distinterested evidence, swear that thisfence was alwayscoveredwith olas on theoutside. Thefirst
defendant himself admits the fence was always fenced on the outside,though he qualifies this admission by stating that permission wasgranted for the purpose.This statement, however, I donot
believe'. Excepting his own statement, there is no other evidencein support of it.
“ Further, and this is a matter of importance, there is clear anddistinct evidence that the live fence in question is the property of .the plaintiffs, and not common property. The defendant is unableto say who put up the fence; but though he asserts the fence to becommon property, yet during the last ten years he says he has onlyrepaired it twice. At the same time he admits that plaintiffs alwayscut and remove branches. If the live fence was common property,
I imagine the defendant would take care to get his share of theproceeds of the branches. There is, on the other hand, strong andweighty evidence proving that the fence was planted by the plaintiffs’predecessors, and always repaired by them. I hold that the fenceis the property of the plaintiffs.
1 2 W. P. 383
* Addison, Torts, VI. ed., 340.
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May l7, 2920
Ghinnappav. Konakor
“ This fact furnishes another reason for the plaintiffs fencing witholas on the outside. The live fence is of some pecuniary value,requiring attention, as the branches are given for purposes ofmanure. It may be noted it has been held ‘ that the boundaryhedge, separating one estate from another, belongs in general tothe occupier who has been in the habit of cuttiug and repairing thehedge/ 1
“ Summing up this, I find that the plaintiffs are entitled to enterthe defendants land for the purpose of putting up and tying olas onhis western fence; that there is a custom to tlie effect that adjoininglandowners may enter their neighbours’ land for this purpose; andthat this custom has the full effect of a servitude. I find that thedefendants did' cut and destroy fence sticks and remove olas. 1award plaintiffs Re. 1 special damage, and Rs. 10 a year on accountof the obstruction; that the fence is not common property, butthat it belongs exclusively to plaintiffs.
“ I give judgment for plaintiffs in terms of paragraphs 1. 2, and 3of the prayer. I give damages as above assessed. The first andsecond defendants will pay plaintiffs’ costs.”
Tambyah (with him Rutnam), for the appellants.
Kanagasabai (with him Balasingham), for the respondents.
Cur. adv. vv.lt.
May 17, 1910. Grenier J.—
An interesting argument was addressed to me by Mr. Tambyah,for the appellants, but I am not disposed to interfere with thejudgment of the Commissioner, which is an excellent one, dealingexhaustively with the questions which were submitted to him fordecision. Both the Tesawalamai and the Roman-Dutch Lawcontain no reference to the custom or servitude which permits ofa landowner screening his fence with olas, and for this purposecrossing over into his neighbour’s land at irregular intervals when-ever the fence gets out of repair. These intervals are, I understand,by no means frequent, because *an. ola screen is very strong andsubstantial, and the intervals may vary from one year to eighteenmonths. The custom, however, is an inveterate one in the Northernpeninsula, and may rightly be said to have the force of law. It is,besides, a reasonable one. The opposition of the defendant is, Ithink, perverse, considering that the action of the plaintiff securesprivacy for his own land, and only entails the presence of theplaintiff on his land for just sufficient time as will enable him toscreen the fence.
' The appeal must be dismissed with costs.
Appeal dismissed.
1 Addison, Torts, 445.