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1896.DE SILVA et al. v. WEERASINGHE.
and3t.Z). C., Kandy, 8,482.
Right of uny over a public footpath—Evidence of special injury to plaintiff.
In an action raised by the plaintiffs as owners of a certain garden fora declaration that they are entitled to a right of way over a public foot-path (leadingfrom their garden to a street in Kandy), which the defend-ant had destroyed, and that the defendant should be ordered toreconstruct the same and pay plaintiffs a certain sum of money asdamages arising from their inability to use the same,—
Held, that such action, in the absence of an allegation that the defend-ant had a land over which the footpath went, or the plaintiffs had aright of way over a land belonging to the defendant, could not be lookedupon as a claim for a servitude on behalf of a dominant tenement, but|should be treated as an action brought by a member of the public forobstructing a public pathway, and that, in the absence of proof of specialinjury to plaintiffs, such action was not maintainable.
fTIHE judgment cf Lawrie, J., is explicit as to the facts of thecase.
Dornhorst appeared for defendant appellant.
Sampayo, for plaintiffs respondent.
Cur. adv. vult.
Lawrie, J. 31st January, 1896. Lawrie, J.—
The plaintiffs aver that they are the owners of Galahitiya-watta ; that they have resided in a house on that land ; that theywere entitled to a right of way over a public footpath Rl to B2,to and from their house to a street in Kandy ; that they haveexercised the said right of way, and used the said public pathuninterruptedly for more than ten years.
That about two and a half years before action brought thedefendant destroyed a portion of this public path, by reason of-*which act of destruction the plaintiffs, their children, and servants,with cattle, have been prevented from using the said public path,&c., to the injury of the plaintiffs, for which they claim Rs. 200damages.
Further, that the plaintiffs have suffered special damage byreason of their not being able (1) to carry and take along the saidpath to the town of Kandy the produce of the said land for sale ;(2) to take their cattle from their house along the said path totown and back to the house ; (3) to convey and bring manure fromthe town along the said path to the premises for the use of the saidland; and they asked Rs. 250 special damages. The plaintiffsasked (1) for a declaration that they were entitled to a right of wayover the said public path; (2) for a decree that the defendant,
within a specified time to be named by the Court, should re-con-struct or repair the portions of the said path which have beendestroyed by him, or to pay plaintiffs a sum of Rs. 50 to meet thecosts of re-construction or repair ; (3) for damages, Rs. 450.
Now the learned District Judge has not granted the secondremedy prayed for ; he has made no order as to re-construction,nor awarded any sum towards that object; and the learned Judgehas also refused to give any special damages. Against his judg-ment on these points the plaintiffs have not appealed. To mymind, the learned District Judge was wrong in holding that thiswas proved to be a public path. The proof seems to me quiteinsufficient. The plaintiffs’ claim is to my mind ambiguous. Ithink that they did not make up their mind whether to claimthis path as a servitude or easement, of which their land Galahiti-yawatta is the dominant, and the defendant’s land is the servienttenement, or whether to claim as members of the public againsta wrongdoer.
The defendant is not alleged to have any land over which thepath goes; and as tho complaint is not that they have a right ofway over a certain land belonging to the defendant, in my opinionthis action cannot be justly dealt with as an action for the declara-tion of a servitude. It must be regarded as an action by one ofthe public against a man who, without right, has destroyed apublic path. Now, in my opinion, such an action is not main-tainable by a member of the public unless he avers and provesthat he himself has sustained some injury for which damages aredue to him.
The mere fact, that a public way has been obstructed will notgive to every quixotic member of the public a right to attack thewrongdoer and to get nominal damages from him, and yet, so faras I can see, this is what the District Judge has sustained, becausehe has found that the plaintiff has not placed any evidence beforehim which enables him to assess damages—still he has given themRs. 30 damages. The plaintiffs’ right to relief fails, if they havenot proved that any produce grew on their land, which couldhave been taken for sale to Kandy ; if they failed to prove thatthey ever had a head of cattle which they could possibly havetaken to and from Kandy ; if they failed to prove that they everthought of bringing manure to their land, or that their land, inthe old days, ever was manured ;—the only thing which remainedwas that the plaintiffs and their children and servants were pre-vented from using the path. It is proved that the path wasdestroyed, but non constat that that destruction did the plaintiffsany injury. They do not claim this as a way of necessity ; they
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have other ways by which to reach and to leave their house.This is not said to be the nearest way or the most convenientway from their honse to Kandy, so far as I can see ; and I amconfirmed in this by the finding of the learned District Judge,that plaintiffs, as two of the public, have suffered no injury at allfor which damages are due.
From the shape of their action, and from the proof adduced,they cannot succeed in having a decree in their favour as ownersof a dominant tenement declaring this to be a servitude. Theycannot succeed on the proof they have adduced in getting decreeas members of the public, because they bave failed to show suchspecial injury as gives them a title to interfere. I would set asideand dismiss with costs.
I agree in setting aside this judgment. I take this to be an actionby the plaintiffs as a member of the public, who seeks to recoverdamages for being specially injured by the defendant’s obstructionof way, a common highway.
I am nnable to agree with the District Judge in his findingthat this is a public pathway. Taking the finding to be correct,I think he is bound by the judgment of this Court reported atp. 195 of 2 S. G. JR. A plaintiff under such circumstancescannot succeed, unless he proved that he has been speciallydamaged by the highway being obstsncted.
He has disclosed no such special injury as the law understandsby that term.
The appellant will have his costs.
DE SILVA et al. v. WEERASINGHE