021-NLR-NLR-V-38-DE-SILVA-v.-ATTORNEY—GENERAL.pdf
AKBAR J.—de Silva v. Attorney-General.
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1935Present: Akbar J.
DE SILVA v. ATTORNEY-GENERAL130—C. R. Galle, 14,500.
Railway line—Right of way across the line—Railway Ordinance, No. 9 of 1902,s. 32.
A right of way cannot be acquired across a railway line.
^^PPEAL from a judgment of the Commissioner of Requests, Galle.
N. E. Weerasooria (with him S. W. Jayasuriya), for the plaintiff,appellant.
W. R. Weerasooria, Acting C.C., for the defendant, respondent.
Cur. adv. vult.
October 23, 1935. Akbar J.—
This was an action brought by the plaintiff-appellant against theAttorney-General as representative of the Crown for a declaration thatthe footpath from the Dodanduwa lake to the Colombo-Galle road throughDegalla was a public path, and it was alleged that the Railway Departmentrecently obstructed the use of the path by putting up a rail fence across it.There are several difficulties in the way of such an action being broughtby a private person as a member of the public and that action beingbrought against the Attorney-General which I need not discuss for thepurposes of this appeal. The learned Commissioner came to the conclu-sion that under the circumstances of this case no prescriptive title hadbeen proved. I think his finding is correct in view of section 32 of theRailway Ordinance, No. 9 of 1902. By that section any person whotrespasses upon the railway, or upon any of the lines, stations, or otherpremises appertaining to the railway, is guilty of an offence, and liable toa fine not exceeding Rs. 20 ; and such person, when he refuses to leave therailway line when requested to do so by a railway official, commits anotheroffence for which he is liable to a fine of Rs. 50, and moreover he is liableto be immediately removed therefrom by force by any railway official.Admittedly the alleged footpath crosses the railway line. By the same
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AKBAR J.—de Silva v. Attorney-General.
Ordinance No. 9 of 1902 the word “ railway ” includes all railwaysalready constructed or in the course of construction. So that whensection 32 refers to trespass upon the railway it includes the actualcrossing of the railway lines as in this case. I fail to see how in thesecircumstances any use by members of the public of the footpath, or atleast that part of it which crosses the railway line can be said to beadverse user, because each time such person crosses the railway line he-commits a criminal offence for which he can be punished.
Apart from this point, which is mentioned by the learned Commissioner,I think I will not be justified in interfering with the finding of theCommissioner who apparently accepted Mr. Parker’s evidence that afence was put up immediately after the acquisition 34 years ago, and Ifurther cannot interfere with his finding that the footpath was includedin the acquisition.
The appeal will therefore be dismissed with costs.
Appeal dismissed.