033-NLR-NLR-V-34-DE-SIVA-v.-NONOHAMY-et-al.pdf
De Silva v. Nonohamy.
US
1932 Present: Macdonell C.J., Garvin S.P.J., Dalton J. and
Jayewardene A.J.
DE SILVA v. NONOHAMY et al.
356—D. C. Galle, 27,260.
Right of way—Claimed over several lands—Obstruction by owner of one land—Joinder of owners of intervening lands—Roman-Dutch law—CivilProcedure Code, s. 18.
Per Macdonell C.J., Garvin S.P.J., and Jayewardene A.J.(Dalton J. dissenting): —
Where a person who claims to be entitled to a right of way whichtraverses a number of contiguous lands is obstructed and disturbed inthe enjoyment of his rights by the owner of one of these lands, an actionbrought by him against the wrong-doer for a declaration of his right anddamages, is not badly constituted because the owners of all the inter-vening servient tenements are not joined as parties.
Where, it appears that the. owner of an intervening land deniesthe right of way the Court may, in exercise of the powers vested in it bysection 18 of the Civil Procedure Code, add the said owner as a party tothe action.
T
HIS was an action in which the plaintiffs claimed a right of way forcarts from their land to the Gansabhawa road. They stated that
the defendant obstructed the cart-way when it passed over his land.Between the plaintiffs land and that of the defendant’s the cart-waypassed over several lands. Three questions were submitted for theopinion of the Court by Drieberg and Akbar JJ.: —
It is necessary that a plaintiff should in all cases join as parties tothe action the owners of all the intervening lands.
Or is the action properly constituted without their being madeparties, "it being left to the Court of its own motion or on theapplication of the plaintiff or the defendant to make the ownersof the intervening lands parties to secure the objects stated insections 18 and 33 of the Civil Procedure Code.
Or is a plaintiff entitled, to proceed against the defendant aloneeven when it appears in the course of the proceedings that theowner of the intervening land denies the right of way.Gratiaen (with him Ameresekere), for defendant, appellant.—Where aservitude is claimed over a servient tenement not adjacent to the domi-nant tenement it must be shown that the intervening tenements aresubject to the same servitude (Voet VIII., 4, 19). Once a servitude hasbeen acquired, there really results one servitude over several servient tene-ments. That servitude is one and indivisible (Gunasekera v. RodrigoFernando v. Fernando*). Where the servitude is extinguished withregard to one of the intervening tenements the whole servitude is extin-guished. The right of the dominant owner is an indivisible right to pass
i 30 N. L. R. 468.
2 31 N. L. R. 107.
114
MACDONELL C.J.—De Silva v. Nonohamy.
over the lands of all the intervening owners and not piecemeal over thelands of each one. Correspondingly there is an indivisible obligation onthe part of the owners to allow his rights. An indivisisible obligation canbe discharged only by all the co-obligees. Pothier Vol. I., 172, illustratesthis by the case of a servitude. In this case plaintiff must show that hehas a right to go up to defendant’s land and, when he has crossed it, tothe road. He cannot establish his right to part of a servitude. Supposethe plaintiff gets a declaration of his servitude against the defendant andsubsequently the servitude is declared non-existent as against anotherof the intervening owners?
Rajapakse (with him Abeysekera and Rajakaruna), for plaintiff, respond-ent.—The question for decision is not one of substantive law but ofprocedure. Section 5 of the Civil Procedure Code defines a cause of action.Section 14 refers to persons who must be made defendants. Plaintiffhas no cause of action against the intervening owners. He can claim norelief against them. The question must be decided solely with referenceto section T4. Why should plaintiff be unnecessarily cast in cost againstintervening owners who do not resist his claim? Section 18 makes itonly discretionary on the Court to join parties. A distinction must bemade between parties who are necessary for the proper constitution ofthe action and parties the joinder of whom is merely discretionary. Ifparties necessary under section 14 are not joined the action fails. Not sounder section 18. Under section 18 plaintiff will not have to pay costs.The obstruction caused by each separate owner gives rise to a separatecause of action (2 Menzies- 295; 3 Bal. 295). The case would be differentif there was one servient tenement with several co-owners. It is in sucha case that Drieberg J. has held that all co-owners must be joined. Evenin the case of a right of way of necessity the joinder of all the co-ownerswas not considered necessary (1 Nathan, s. 701 ; 2 Maasdorp 220;4 Bisset and Smiths’ Digest 846).
Gratiaen, in reply.—Section 16 of the Code gives the plaintiff power toget one defendant to represent a number. That disposes of the questionof convenience. There is a cause of action against each separate ownerbecause the obligation is indivisible.
September 13, 1932. Macdonell C.J.—
I have seen the judgments of Garvin and Jayewardene JJ. with whichI respectfully concur and I do not think that there is much that I canprofitably add.
Unquestionably the proper, and originally the only, remedy in Roman-Dutch law was by actio confessoria, a real action “ against .thepossessor of, and all persons claiming any real right to, the alleged ser-vient tenement, to have the servitude declared in favour of the dominanttenement and to have the possessors and occupiers of the servient tene-ment interdicted from interrupting the enjoyment of the servitude”(Maasdorp, Vol. II., p. 221), and no doubt, it would have been matter ofexception to the pledgings of the plaintiff claiming the dominant tenementhad he omitted any one of the perhaps numerous owners of the servient
MACDONELL C.J.—De Silva v. Nonohamy.li'i
tenement or of portions thereof. The servitude, here a right of way,is one and indivisible, in the sense that it must be shown legally to existat each and every point on the strip of land over which it is claimed andif the claimant fail to prove its existence at any one of such points, theservitude disappears not at that point only but at every other point;it is wholly at an end ; aut tota amittitur aut tota retinetur. Consequentlyit could well be argued that unless the claimant of the servitude joined everyowner of the servient tenement, it would be a logical impossibility forhim to prove his action. It must then be frankly admitted that a personalaction of trespass, with claim for damages, to try indirectly the right to aservitude was an innovation which the earlier authorities on Roman-Dutch law would have rejected probably as something unintelligible,certainly as a remedy quite unknown'to their system of law. Possiblyit was an innovation at the time of Saunders v. Executrix of Hunt,1 butthis method of indirectly establishing a right is convenient, and has beenadopted in South Africa where it has received the approval of so great anauthority as de Villiers C.J. (iHofmeyr v. Hofmeyr"). The principle isclear ; why must the owner of the dominant tenement who claims theservitude be compelled to sue owners of parts of the servient tenementwho do not dispute his right to the servitude, why may he not be allowedto sue that owner only who does dispute his right ? The same idea,though not of course the same remedy, was perhaps present to the mindsof the Roman lawyers themselves (Dig. VIII., 3, II); Per fundum, quiplurium est, ius mihi esse eundi agendi potest separatism, cedi. Ergo suptiliratione non aliter meum fiet jus, quam si omnes cedant et novissima demumcessione superiores omnes confirmabunturbenignius tamen dicetur etantequam novissimus cesserit, eos, qui antea cesserunt, vetare uti cesso jurenon posse. A remedy was given against those who had already grantedthe servitude restraining them from derogating from their grant, eventhough the other owners had not yet made grant at all and so were notliable to action, and from this to giving a remedy against those whoinfringe the right granted by them or their predecessors without havingto join others who have not infringed that right,, the step is surely bothshort and reasonable. See also Dig. VIII., 3, 23 cited in Ebden v. Ander-son3; Si tamen fundus, cui servitus debetur, certis regionibus inter plurosdominos divisus est, quamvis omnibus partibus servitus debeatur, tamenopus est, ut hi, qui non proximas partes servienti fundo habebunt, transi-tum per reliquas partes fundi divisi iure habeant aut, si proximi patiantur,transeant. This is the same idea from another point of view. Thedominant tenement is divided into several lots—certis regionibus—among several owners. As the servitude is a whole each of these ownersmust be allowed to use it, even though this involves his passing throughthe portions of the dominant tenement belonging to others ; and if one ofthose owners obstruct another of them, it would be against the owner soobstructing that action would lie, not against the others who had notbeen guilty of obstruction.
The owner of the dominant tenement certainly runs a risk if he suesin trespass one owner of part of the servient tenement without joining theother owners of the same. He may in proving trespass establish his right
i 2 Menz. 295.2 (1875) 5 Buck. 141.3 2 ScarU, 64.
116
MACDONELL C.J.—De Silva v. Nonohamy.
as against that one owner who, let us suppose, acquiesces in the judgmentagainst him and does not appeal. The owner of the dominant tenementthen sues another owner of part of the servient tenement who, however,successfully appeals against the. judgment against him. Then theservitude, being an indivisible whole, is at an end, and the owner of thedominant tenement cannot enforce it, for having gone in part it has gonein whole, tota amittitur, even against the other owner of part of the servi-ent tenement against whom he possesses a judgment which is final sinceit was not appealed against. It may also be argued that to. allow theright to be tried by this personal action of trespass against one owneronly of the servient tenement, has worked hardship on him, since for atime he has had to submit to a servitude which another conclusivejudgment has now declared not to exist. But to this it can be answeredtfiat this inconvenience is not likely often to arise, that in a great majorityof cases it wjll be prevented by the use of section 18 of the Civil ProcedureCode, either the other owners of the servient tenement will join or theCourt will require their joinder, and that in any event it is a lesser in-convenience than would be a compulsion on the owner of the dominanttenement to join every one of the owners of the servient tenement when-ever one only of them obstructed his enjoyment of the servitude.
The point is pretty clearly raised in Perera v. Fernando/ a decision ofWood Renton C.J. and de Sampayo J. The relevant parts of the judg-ment are as follows : —
44 The plaintiff in this action claims a right of way over two distinctlands. The one belongs to the first defendant, the other to thesecond and third defendants. It is the first defendant alonewho is alleged to have interfered by any overt act with theright of way which the plaintiff claims. He had no cause ofaction against the second and third at the date of actionbrought …. The District Judge has held that anobjection taken on behalf of the defendants to the constitutionof the action on the ground that there had been a misjoinderof parties and causes of action, was bad, since it would be uselessfor the plaintiff to obtain judgment for a section of the right ofway he claims, without having it declared as a whole, and since,if he had to bring another action against the second and thirddefendants, he might not be successful even if the present actionsucceeded. That does not seem to me to be a very convincingreason in support of the order under appeal. The causes ofaction are distinct, even assuming that the plaintiff has anycause of action at present against the second and third defend-ants, and they might well be prejudiced were their case to betried along with that of the first defendant, who is alleged in-the plaint to have created a positive obstruction to the exerciseof the right of way in suit. The action should, I think, bedismissed against the second and third defendants. But theplaintiff should have liberty to proceed with his action againstthe first defendant, ”
1 4 C. W. R. 148.
GARVIN S.P.J.—De Silva v. Nonohamy. .
117
There is therefore on practically the same point as that now before usa decision of this Court with which I would respectfully concur.
I answer the question put to us in the same terms as Garvin J.
Garvin S.P.J.—
This is a reference at the instance of Drieberg and Akbar JJ. beforewhom this appeal came up for argument. The principal question fordecision is whether when a person who claims to be entitled to a right ofway which traverses a number of contiguous lands is obstructed anddisturbed in his enjoyment of his rights by the owner of one' of theselands an action brought by him against the wrong-doer for a declarationof his right and damages is not properly constituted unless the owners ofall the servient tenements over which the right of way is claimed arejoined as parties.
The question is of great practical importance. Lands in this country,especially in the villages, are frequently the subject of ownership incommon. They are traversed by paths, many of them not public paths,which give access to different parts of the village and to the public roadin the vicinity. Manifestly, it would be extremely burdensome not onlyto a plaintiff but to the owners of the several lands traversed by such apath, should it be held that an action to vindicate his right by one owner,who happens to be obstructed in his enjoyment of such right of way by adisaffected neighbour, is not properly constituted unless every personhaving a proprietary interest in every one of the contiguous allotmentsof land traversed by the path is made a party.
Under the Roman-Duteh law a person obstructed in the enjoymentof a servitude was entitled to seek his remedy by the actio confessoria.“ But in most cases the action lies against the owner of the servienttenement; and if there be more than one, against each one of them insolidum, because the action is not divisible in this case ” (Voet VIII., 5, 2).In the next section Voet goes on to say “ The object of this action is thatthe free use of the servitude which has been created may be left un-altered, and security given against disturbing the rights for the future ;… . That the defendant may also be compelled to pay the fruits ;
by which term is meant the advantage the plaintiff would have enjoyedsupposing the servitude not to have been interfered with (. . ..)
and so the loss which he has suffered by reason of the obstruction to theservitude.”
In the Roman-Dutch law as administered in South Africa, the actioconfessoria is referred to as a declaratory action “ which should properlybe brought in the form, of a real action against the possessor of, and allpersons claiming any real right to, the alleged servient tenement, to havethe servitude declared in favour of the dominant tenement and to havethe possessors and occupiers of the servient tenement interdicted frominterrupting the enjoyment of the servitude ; but there is no legal objec-tion to having a disputed right of servitude tried indirectly by a personalaction of damages or in an action of trespass ” (Maasdorp, Vol. II.,
p. 221).
118GARVIN S.P.J.—De Silva v. Nonohamy.
The case of Saunders v. Executrix of Hunt,1 referred to by Maasdorp,is a clear recognition of the right to maintain an action for damagesagainst a person who obstructs another in the enjoyment of a servitudenotwithstanding that a question as to the existence of the right of servi-tude is in issue and may have to be decided.
It would seem, therefore, if the owner of land desired to have anotherland declared by judgment to be servient to the right of servitude heclaims, he had to bring what is referred to as a real action making theowner or owners and all persons claiming any real right in the land parties.But it was also competent for him to bring an action for damages againstthe person who caused the obstruction or impeded him in the enjoymentof his right notwithstanding that his right to the servitude is denied andmay have to be established.
Unless a decree in such a “real action ” had some special effect, such,for instance, as" the effect of a judgment in rem, and if on the contrarysuch a decree had no greater effect than any other judgment inter partes,the difference between the two actions, the one for a declaration of therights of servitude the other for damages, involving when the right isdenied an adjudication that the plaintiff is entitled to the servitudeclaimed, resolves itself into a mere matter of form.
The Roman-Dutch law remains our common law and the rights andliabilities of parties are in many matters regulated by its principles butthe forms of action and the procedure of the Roman-Dutch law has longbeen obsolete and the Civil Procedure Code now regulates the bringing ofaction, the joinder of causes of actions and the joinder of parties. Judg-ments entered in actions, even judgments declaring title to land or toservitudes over land, are only binding-on parties and their privies exceptin the case of those which are declared to be judgments in rem, e.g.,final judgments under the Partition Ordinance.
It is difficult to see why a person, obstructed in the enjoyment of aright of servitude, who may sue the person who obstructs him for damagesand can invite the Court to hold in such an action that he is entitled tothe right of servitude he claims, may not be declared entitled to thatright in the judgment which can only bind the parties and their privies.It is obviously in the interests of such a person to make all the owners ofthe servient tenement parties so that by binding all ^owners of theservient tenement he may obtain a judgment of real value to himselfand his successors in title to the dominant tenement. If he does not doso, the Court is entitled under the provisions of section 18 of the CivilProcedure Code to order the co-owners to be made parties, and it willno doubt do so when there is a serious denial of the right of servitudeasserted.
There is no special reference in the commentaries on the Roman-Dutchlaw or in the judgments, to the case of an action in respect of a right ofservitude, such as a right of way over a number of contiguous landswhere the obstruction complained of or the denial>f the right is the actof the owner or owners of one of the servient tenements. In such a casethe servitude is one and indivisible in the sense that if it be legally deter-mined at any one point the servitude as a whole is at an end (vide Samsan
i 2 Menzies 295.
GARVIN S.PJ.—De Silva v. Nonohamy.
119
Dias v. AmarasingheGunasekere v. Rodrigo", and Fernando v. Fernando*).But each of the contiguous lands is a servient tenement and the lawlays the owner or owners of each of such tenements under a duty topermit the free exercise by the owner of the dominant tenement of hisright of way. If the obstruction be caused by the owner or owners ofone of such servient tenements all that the owner of the dominant tene-ment needs at most to secure his enjoyment of the servitude is a judgmentwhich establishes his right of servitude over that particular servienttenement against the owner or owners.
Under the strict rules of the Roman-Dutch law, it may be necessaryeven as it is, in many cases, desirable, that all the co-owners should bemade parties to the action. But there is evidently nothing to supportthe contention that to establish by judgment a right of servitude over oneservient tenement in the case of a right of way over a number of conti-guous servient tenements every person is a necessary party who has areal interest in any one of the servient tenements.
If a right of servitude over a single servient tenement may be triedand established in a personal action for damages against a single co-owner who causes an obstruction, a right of servitude over a number ofcontiguous lands may surely be tried in an action to establish a servitudeover one servient tenement against the owner or owners of that tenementwithout joining the owners of the other servient tenements. This is inaccordance with what has been the practice—vide Samson Dias v.Amarasinghe (supra), Gunasekere v. Rodrigo (supra), Fernando v.Fernando (supra) and S. C. No. 67, C. R. Matara, No. 15,914, S. C. Min.-October 20,1931. The only judgment in which a different view is expressedis that of Fernando v. Dona Maria In that case the third issue was asfollows:—“Are the plaintiffs entitled to the right of way over the inter-vening lands marked 1 and 4 ? ” Dalton J. dealing with this issue said“ On the action as brought under the issues framed, it seems to me thatthe trial Judge could only answer issue 3 in the negative. If plaintiffswish to establish that they are entitled to the declaration of right theyclaim, they must establish their contention that all four lots are subjectto the right of way. For that purpose it seems to me the owners of theintervening properties must necessarily be heard and plaintiffs mustbring them before the Court ”.
The existance or non-existance of a right of way is a question of factand I am aware of no reason why like any other fact the existence of aright of way which traverses a number of contiguous lands may not beestablished without hearing the owners of the intervening lands. Theexistance. of such a right may be proved in a personal action for damageseven under the Roman-Dutch law without hearing even the other co-owners of the servient tenement in respect of which the right is claimed—vide Saunders v. Executrix of Hunt (supra). A fortiori, it may be estab-lished in an action to which the owner or owners of the servient tenementover which the right is claimed are parties without bringing in the ownersof the other servient tenements in a case where the right of way passesover several contiguous lands.
1 (1917) 4 C. W. Jt. 269.3 (1929) 31 N. L. R. 107.
– 119-29) 30 N. L. R. 468.* (1930) 32, N. L. R. 1G6.
120
GARVIN S.P.J.—De Silva v. Nonohamy.
It is evident that Dalton J. has adopted the distinction between thereal and the personal action which obtains in South Africa, and hasextended the requirement that all the owners of a servient tenementmust be made parties to an action to establish by judgment a right ofservitude claimed over that tenement to the case of a servitude of a rightof way over several contiguous tenements. It is sometimes desirable,often it is in the interest of the., plaintiff himself, and in South Africa itseems to be necessary, to make all the owners of a servient tenementparties to an action to have that servient tenement declared to be underthe servitude claimed by the owner of the dominant tenement. ButI am aware of no provision of the Roman-Dutch law which compels aperson who seeks to have a right of servitude claimed by him establishedin respect of one servient tenement to bring in the owners of all the othertenements which may be servient in respect of the same servitude—noris there anything in the law as it obtains in Ceylon which compels himto do so. Indeed a plaintiff who joins the owners of servient tenementswho have neither caused him obstruction nor denied his right to theservitude he claims incurs the risk of having to pay them their costssince they have given him no cause of action—vide Tomhill v. Weeks where it was doubted “ whether /the mere assertion that there is apublic right of way and the mere provision of legal assistance for thedefence of private individuals, who prior to the assertion and withoutany reference to the district council have exercised the alleged right ontheir own behalf and been sued in trespass accordingly, would withoutmore give rise to any cause of action against the district council. ”
In the case of Harris v. Jenkins which was a proceeding to have a state-ment of claim to a right of way struck out as embarrassing for want ofparticulars as to the title by which the right was claimed and as to thecourse of the right of way, Fry J. observed “ I think the defendant isentitled to a short statement by the plaintiff of the title by which heclaims …. I think also that the plaintiff ought to show withreasonable precision and exactitude the termini of the right of way andthe course which it takes. It may be sufficient to state the names ofthe closes of land through which it passes, or to refer to their numbersin the tithe commutation map of the parish ”. It was never suggestedthat the owners of all the closes of land traversed should be made parties.
I am, therefore, of opinion that an action brought to vindicate a rightof way over several contiguous lands is not badly constituted becausethe owners of all the other servient tenements intervening between thetwo termini have not been made parties.
The "questions submitted for decision by Drieberg and Akbar JJ. are—
Is it necessary that a plaintiff should in all cases join as parties
to the action the owners of the intermediate iand or lands aswas held by Dalton J. in Fernando v. Dona Maria3.
Or is the action properly constituted without their being made
parties, it being left to the Court of its own motion or on theapplication of the plaintiff or defendant to make the owners of
i (1913) L. R. 1 Ch. D. 438.'* (1882-3) L. R. 22 Ch. D_. 481.
13 32 N. L. R. 166.
DALTON J.—De Silva v. Nonohamy.
121
the intervening lands parties to secure the objects stated insections 18 and 33 of the Civil Procedure Code as was held inFernando v. Amolis Horny1 ?
Or is a plaintiff entitled to proceed against the defendant aloneeven where it appears in the course of the proceedings that theowner of an intervening land denies the right of way ?
For the reasons given I would answer the first question in the negativeand the second question in the affirmative. The answer to the thirdquestion will also be in the affirmative but subject to the qualificationthat the Court may, in exercise of the powers vested in it by section 18,order that any person or persons be joined whose presence it may deemnecessary to enable it effectually and tompletely to adjudicate upon andsettle all the questions involved in the action.
The case will now be listed before Drieberg and Akbar JJ. for furtherhearing and disposal.
Dalton J.—
Three questions have been referred for the opinion of this Court. Inthe reference it is set out that the plaintiffs claim a right of way for cartsfrom their land to the Gansabhawa road. They state that the defendantobstructed the cart-way where it passed over his land. Between theplaintiffs’ land and that of the defendant the cart-way claimed passesover the land of Siyadoris and Girigoris, and, beyond defendant’s landgoes over the land of Ovinis, and then joins the Gansabhawa road.
Plaintiffs claimed the right of way by long user, but defendant allowedthe plaintiffs a right of footway only over his land. Of the owners ofthe intervening lands, only Girigoris was called, and he supported thedefendant’s case.
The question submitted for the opinion of this Court are as follows : —
Is it necessary that a plaintiff should in all cases join as partiesto the action the owners of the intervening land or lands as washeld in Fernando v. Dona Maria'.
Or is the action properly constituted without their being made
parties, it being left. to the Court of its own motion or on theapplication of the plaintiff or defendant to make the owners ofthe intervening lands parties to secure the objects stated insections 18 and 33 of the Civil Procedure Code as was held inFernando v. Amolis Hamy 3 ?
Or is a plaintiff entitled to proceed against the defendant alone,
even where it appears in the course of the proceedings that the. owner of the intervening land denies the right of way ?
The case referred to in the first question was decided by me, and nothingI have heard in the course of the argument before us has satisfied me thatthe case was wrongly decided. I would therefore answer the firstquestion in the affirmative. As the rest of the Court, however, are of theopinion that the answer to the first question should be in the negative,
I propose here to add but little to what I there stated. I would wish
>8 Times of Ceylon L. R. 132.s 32 N. L. R. 166.
a 32 N. R. 328.''
122JAYEWARDENE A.J.—De Silva v. Nonohamy.
first of all to stress the distinction between an action for damages forobstruction, and an action for a declaration that plaintiff is entitledto a right of way over certain land. In such an action as the former,the action would be properly constituted by making the person fromwhom damages are claimed the defendant. The case before us now isone of the latter class. It is cpnceded that a right of way over defend-ant’s land to the Gansabhawa road will be useless to plaintiff without thenecessary intervening connections, and the right is claimed, as set outin the reference, over all the lands intervening between the plaintiffs’land and the road. I am unable to agree that the joining of the otherintervening owners, against whom the plaintiff is in effect seeking to estab-lish a right, is in such a case as this merely a matter of procedure. Ithas been suggested that in practice this might mean a very large numberof defendants, but in such an improbable case the difficulty is one for whichsection 16 of the Code applies.
The nature of the right sought to be vindicated has been referred to.It is a real right, and a jus in rem, which is to be enforced by a vindicatoryaction. I do not wish to add anything further to what I have alreadystated, except to point out that the indivisibility of the right claimed isclearly stressed in the partition cases mentioned in the reference. Ithas been held that where the right of way over an intervening land hasbeen lost, the whole right of way has been necessarily determined, and aplaintiff cannot claim a right of'way over a land beyond it. I am unableto draw any practical distinction between such a case and a case as herewhere plaintiff, by bringing an action against the owner of one land,seeks to establish a right of way over intervening lands without so muchas showing that the right over those lands, so far from being lost, has everexisted.
I would answer the first question in the affirmative, whence it followsthat the two remaining questions must be answered in the negative.Jayewardene A.J.—
The plaintiffs brought this action complaining that the defendanthad dug a drain along a path leiading from their land to the Gansabhawaroad, and disputed their right of way. They sought a declaration thatthey were entitled to the right of way, and that the defendant be orderedto remove the drain. They also claimed damages and costs. Theyobtained judgment in the Court of Requests and the defendant appealed.The main question is whether it is necessary that the plaintiff should incases of this nature join'as parties the owners of all the intermediatelands.
Actions in connection with servitudes were of two kinds in the Romanlaw, being declaratory (actio confessoria) or negatory (actio negatoria).Those who are liable to be sued by the actio confessoria are described inthe Digest VIII. 10, 1. Agi autem hac actione potent non tantum cum eo, incujus agro aqua oritur, vel per cujus fundum ducitur: verumetiam cumomnibus agi poterit, quicunque aquam (non) ducere impediunt, exemplocaeterarum servitutium. Et generaliter, quicunque aquam ducere impediat,hac actione cum eo experiri potero :The plaintiff may sue the owner of the
source of supply, the person through whose estate the water flows but
JAYEWARDENE A.J.—De Silva v. Nonohamy.
123
itaost assuredly he may bring suit against pne who impedes the flow of thewater, just the same as in other servitudes. In general, one is able to putto the trial of this action anyone whomsoever that meddles with the flow.
In his commentary on the Codex of Justinian Perezius says,—
" Denique observandum, pro servitutibus vindicandis duplicem esseproditam actionem in rem. Confessoriam nempe et negatoriam.Confessoria datnr illi, qui servitutem aliquam in re alterius sibicompetere contendit adversus impedientem, hoc modo : Dico mejus habere eundi, agendi, aquam ducendi ex fundo vicini infundum meum …. Perezius Praelectiones in—CodicemIII. 34, 31.
H. J. Roby, Professor of Jurisprudence in University College, London,in his introduction to the study of Justinian’s Digest says, “ Theregular action for the fructuary was the vindicatio usufructus (com-monly called the confessoria Digest VIII., 5, I), and this he could useagainst the proprietor of the estate in usufruct or against any possessorwhatever who disputed him in his usufruct, e.g., against the possessor ofa neighbouring estate who disturbed him (Roby p. 174).
If trees are blown down by the wind and the proprietor does not removethem so that the usufruct or way is obstructed, according to the DigestV1L, 1,19, the usufractuary must try the matter with him (that is, sue him)by his proper actions (suis actionibus usufructuario cum eo experiundum).
The Roman-Dutch law adopted the two actions called confessoriaand negatoria and their use in the Roman-Dutch law is examined inVan Leeuwen’s Commentaries 11, 22, 6, Decker’s Notes. The actio con-fessoria, so called because the adversary is compelled by it to confess thathis property is servient, is a civil action in rem. It lies against anypossessor of the usufructuary property, or against anyone disturbinganother in the possession of the established usufruct, and especiallyagainst the owner himself of the servient tenement (Voet VII., 6, 2). Theactio confessoria lies against any person who obstructs a servitude. Inmost cases the action lies against the owner of the servient tenement,and if there be more than one against each one in solidum; because theaction is not divisible in this case. So that the defendant is held liableto satisfy the entire demand, because it is the interest of the plaintiff whobrings his action in solidum, that on no event should he be obstructed(Voet VIII., 5, 2). A riparian proprietor may have a servitude as against adozen estates higher up on the same stream than the dominant tenement,and he may have his damages and an interdict for an interference by aproprietor between whose estate and the plaintiff’s there are severalother estates, provided the stream in question flows through such estates(Nathan p. 503, 2nd Ed.).
According to Maasdorp the declaratory action (actio confessoria)should be brought in the form of a real action against the possessor ofand all persons claiming any real rights to, the alleged servient tenement,to have the servitude declared in favour of the dominant tenement,but there is no legal objection to have a disputed right of servitude trieddirectly by a personal action of damages or in an action of trespass.
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JAYEWARDENE A.J.—De Silva v. Nonohamy.
The action will lie against whoever interferes with the exercise of a rightof servitude. The action will lie in any case against the owner of theservient property, and if there are several joint owners, all will have tobe joined (2 Maasdorp p. 229, 2nd Ed.). A real action is an action con-cerning a thing (res)—actions being divided in Roman-Dutch law intopersonal or real; “ those which arise from an ordinary debt or obligationonly or where some property or thing is bound or secured for the sameor which serves for the purpose of claiming or following up any property ”
(Van Leeuwen’s Comm. V., 10, 2).
In Saunders v. Executrix of Hunt1 the Court expressed an opinion thatalthough a question as to a disputed right of servitude might indirectlybe tried by a personal action, the plaintiff’s proper remedy was by a realaction against the possessor of, and all claiming right in the servienttenement. In Hofmeyr v. Hofmeyr2 it was held that a question of in-fringement of a right of way can be properly tried in the form of an actionof trespass. De Villiers C.J. said that in England nothing is more com-mon than for such right to be tested in actions for trespass and that there 'were several cases in Gale on Easements to the same effect regardinginjury to a right of way.
In Ebden v. Anderson? the owner of a farm granted to the owner ofanother farm and his heirs and successors a right of way over the firstfarm, and the farms were divided into lots, the. purchaser of one of thelots of the dominant tenement was held entitled to claim such right ofway from the purchaser of . a lot on the servient tenement, although thedefendant was not the owner of the whole of the servient farm or even ofthe homestead situated thereon. In Dreyer v. Letterstead’s Executors *it was pointed out that the result of the passages in the Digest VIII., 1,17,“ Viae, itineris, actus, aquaeductus pars in obligationem deduci non potest:quia usus eorum indivisus est and in VIII, 3, 18, “ Una est via etsi perplures f undos imponitur; cumuna servitus sit: denique quaeritur, an siper unum fundum iero, per alium non, per tantum tempus quanto servitusamittitur: an retineam servitutem? et magis est, ut aut tota amittatur :aut tota retineatur. Ideoque si nullo usus sum, tota amittitur: sivel uno, tota servatur,,y is that a praedial servitude being indivisiblecannot be partially acquired or lost (Voet VIII., 1, 5) is to the sameeffect.
As a rule in the case of rural servitudes, a servitude is prevented, by anintervening tenement not being subject to a servitude and a tenementnot bordering on the dominant tenement can be subject to a servitudeto it; if only the intervenient tenement owes the same servitude (VoetVIIL, 4, 19). But it has not been laid down, as far as I can discover,that the owners of all the lands subject to the same servitude shouldnecessarily be made parties to the declaratory action (confessoria)because of in obstruction to the servitude by one servient owner.
In Simpson v. Lewthwaites Lord Tenterden C.J. said, “ The termini in■ this case are correctly described : and I: am of opinion that, as a general
1 2 Menzies 295.'3 2 Searle (1853-6) 64.
– (1875) 5 Buck. 141.'* 0 Searle (1864-7) 88. .
3 8 B. .(■ Ad. 226.
JAYAWARDENE A.J.—De Silva v. Nonohamy.
125
proposition where a private way is claimed by prescription, if both thetermini be correctly stated, it is not necessary to take notice ofall the intervening land Littledale J. remrked, “ It would bevery inconvenient to require a party to set out all the intermediatecloses This view is supported by Jackson v. Shillitoe1 and Rouse v.Bendin *.
In an action to restrain the obstruction of an alleged private right ofway, the plaintiff, it has been held, ought to show with reasonable pre-cision and exactitude the termini of the right of way and the course whichit takes, and it would be sufficient to state the names of the closes of landthrough which it passes and to refer to their numbers in the map of theparish.
In Thornhill v. Weeks * it was held that if the defendant claims andinsists on the right to do a thing, although he has not already done itmodo et forma he would be a proper party to the suit.
As regards the pleadings, Gale (Easements p. 522, 9th Ed.) states that inaction for the disturbance of a way, the plaintiff should state the terminusa quo and ad quern, and the kind of way he claims, and it is not necessaryalthough it is convenient to give the intervening closes.
In India the same principles are followed as in England and the sameaction lies, three distinct classes of rights of way being recognized in theone country as well as in the other, Chunilal v. Ram Kishen Sahu *. Aperson who obstructs a right of way is looked upon as committing a wrongor tort and an action lies against him (Ratanlal on Torts p. 361). I haveexamined the Empire Digest, Bose’s Indian Digest, and Bisset and Smith’sSouth African Digest, but I have not found any case which required allowners of intervening farms and tenements or closes to be joined asparties.
As regards local cases the weight of judicial authority is in favour ofthe view that the owners of all the intervening lands need not be joined.In Fernando v. Amoliss Drieberg J. thought so, Lyall Grant J. agreeing.Garvin J. was of that opinion in Gimarah v. Davith8. In Perera v.Fernando'’. Wood Renton C. J. and de Sampayo J. went so far as to holdthat the owners of two lands over which the road ran cannot be sued in thesame action and that the party who created the positive obstruction to theright of way should alone be sued.
I would answer the first question in the negative and . the second inthe affirmative, as to the third, following the principle enunciated inThornhill v. Weeks (supja) it will be in the discretion of the Court to addany party.
» 1 East 381.* 15 Cert. 460.
= 2 H. Bl. 351.3 32 N. L. R. 326.
3 (2923) 2 Ch. 438. f6 22 C. L. R. 27i
(• 4 C. W. R. 143.
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