de Vaas v. Mendis,
1948Present: Basnayake J.DE VAAS, Appellant, and ME NT) IS, Respondent.S. G. 178—C. JR. Balapitiya, 24,420.
Servitude—Way of necessity—Burden of proof.
In a claim for a right of way of necessity the onus of proving the necessity isupon the person alleging it. The word. “ necessity ” in this context should
be very strictly construed.
114 Bombay Law Reporter 115 (F. B.).*
(1910) 13 N. L. R. 326.
BASNAYAKE J.—de Vaaa v. Mendia.
A PPEAL from a judgment of the Commissioner of Requests,^ VBalapitiya.
C. V. Ranawalce., for the defendant, appellant.
G. P. J. Kurukulasuriya, for the plaintiff, respondent.
Cur. adv. vult.
April 19, 1948. Basjjayake J.—
The plaintiff-respondent (hereinafter refereed to as the plaintiff)claims that he is the owner by right of pu®s|p5e of lot 12, in partitionplan No. 904B dated March 28, 1930, of a*9fmd called Wanigasekerage-watta. This lot is bounded on the north by lot 9 and on the west bylots 10 and 11 all of the same plan, on the east by Crown land on whichthe railway track is laid, and on the south by a land called Kottamba-gahawatta. The defendant-appellant (hereinafter ijgserred to as thedefendant) is the owner of lot 9.
Lots 7 and 8 have access to the public road by a footpath runningalong the southern and western boundaries of lot 7. The plaintiff seeksto obtain access to this footpath along the southern boundary of lots 8and 9. The path which he claims is depicted as lot 9a in plan No. 841compiled by Surveyor K.. M. R. Silva. He has already obtained a paththree feet wide along the southern boundary of lot 8 by Order of Courtin C. R. Balapitiya, Case No. 24,328 on payment of compensation.It is shown as lot 8a in the afore-mentioned plan No. 841. This actionis brought to compel the defendant to convey to him lot 9a on paymentof compensation. The learned Commissioner of Requests has declaredthe plaintiff entitled to a right of way along lot 9a in plan No. 841aforementioned on payment of Rs. 15 as compensation. The presentappeal Ls from that decision.
What the plaintiff seeks to obtain in this case is a servitude of wayof necessity by judical decree. This right is thus described by Voet(8.3.4) :—
“ Besides the right of way, which can either be granted or refusedaccording to the will of the owner of the servient tenement, thereis another right of way, which must of necessity be granted by theowner of the servient tenement, if there is no road leading to or fromthe neighbouring estate (commonly called een nood-weg) : and thisright of way or passage by the Roman law was always of necessitygranted to him who had a sepulchre on the estate, but no means ofapproach to it ; and to such an extent that Pompcnius is our authorityto the fact that it had bren provided by the laws relating to the saleof farms, that the owners of the farms in which sepulchres were placedshould, after the sale of the farms, afford a means of going to, andapproaching and permit funeral processions to the sepulchres whichwere on the farms. But this rule has been by our interpreters equitablyextended to all estates which are without means of approach or depar-ture, so that indeed, after the extraordinary functions of the judge have
BASSAYAKF. J.—de Vaaa v. Mendis
been called into exercise, the neighbouring owner either grants a fullright of way, receiving in return an equitable price for it ; or at leasthe grants a right of way by concession (precario), to be exercised onlywhen necessity compels and that to the smallest possible detrimentto the owner allowing itAccording to Grotius1:—
“ All lands which do not abut upon a high road or neighbour’sroad are entitled to a road of necessity. High roads (vine publicae)are roads common to all and which may be used by everyone, theprofits thereof going to the Crown. Neighbours’ roads (viae vicinales)arc roads belonging to several neighbours in common, and may notbe closed except by common consent, the profits thereof going to theneighbours. If a man’s land does not abut on a high road orneighbour’s road, the court will grant him a necessary road wherebyto reach the high road by the shortest way and with the leastdamage
In a claim for a via necessitatis the onus of proving the necessity isupon the person alleging it. He must prove that he has no reasonablysufficient access to the public road for himself and his servants to enablehim, if he is a farmer, to carry on his farming operations. If he has analternative route to the one claimed, although such route may be lessconvenient and involve a longer or more arduous journey, so long asthe existing roads give him rea. onable access to a public road he mustbe content, and cannot insist upon a more direct approach over hisneighbour’s property 2.
The comments of Voet, Van Leeuwen and Grotius indicate that theword “ necessity ” in this context should be very strictly construed.
Tn the present case I am of opinion that, according to the principlesof law I have quoted above at some length, the plaintiff is not entitledto the right he claims. The partition plan No. 904B shows that a rightof way has been established by the partition decree in respect of lots 1,2, 3, 4, 5, 6, 7, 8, 10 and 11. Lots 9 and 12 have not been allowed aright of way. These lots abut on the land on which the railway trackruns. The reason why a right of way in respect of these lots was notreserved does not appear from the evidence. The plaintiff has notexplained it. It appears from the same plan that the public road fromGalle to Colombo is on the further side of the railway line and that theplaintiff and the defendant have access to it across the land over whichthe railway line runs. The plaintiff also states that his predecessor intitle gained access to the public road on the further side by going across,the land on which the railway line runs. His ground for claiming aroad over lot 9 is, in his own words, “ I claim a road as the U. C. hadnot permitted me to build a house on the land.” The via ex necessitatethe plaintiff claims is not in order to reach the high road by the shortestway, but for the purpose of getting on to the path reserved in thepartition decree for the lots I have mentioned above, particularly thaton the southern boundary of lot 7, and thence proceeding by the path
1 Introduction to Dutch Jurisprudence—Maasdorp’s Translation p. 151.
1 Lentz v. MuMin (1921) E. D. L. p. 268 at 270.
B ASNAYAKE J.—de Vans v. Mendis.
reserved for lots 10 and 11 to the public road. According to thepartition plan the proposed route does not appear to be the shortestway to the high road on the hither side of the railway line. Theshortest route seems to lie along the southern boundary of lot 11. Itmust also be mentioned that, according to the partition plan, the publicroad across the railway line seems nearer the plaintiff’s lot than thehigh road he seeks to reach by the devious route along lots 9, 8, 7, 10and 11.
I am doubtful whether, even apart from the other considerationsI have stated above, the plaintiff is entitled to the relief he claims.I am inclined to think he is not. I am fortified in this view by thefollowing passage from the Opinions of' Grotius 1 :—
“ Where land has been subdivided "into lots, and such lots havebeen sold and transferred according to a general plan of subdivisionin which the roads for the different lots are laid down, the owner ofeach lot may use all such roads as are reasonably necessary forconvenient access to and egress from the public or high roads. Suchowner is not, however, entitled to the use of every road marked onthe plan merely because it appears on such plan and the diagramattached to his transfer. Such owner, if his lot doe3 not adjoin acertain road laid down on the general plan, is not entitled to anyservitude thereover, unless it be ex necessitate, by prescription, or byregistration, although such land is shown on the said plan as a road.”The plaintiff has made no endeavour to discharge the onus that restson him, He expects to succeed in his claim on his bare word. Hehas not even called the surveyors who made the plans to explain themand assist the Court. A servitude will not be created by judicial decreefor the mere asking. The person seeking such a decree must dischargethe onus that rests on him.
This appeal is allowed with costs and the judgment of the learnedCommissioner is set aside. In the result the plaintiff’s action will bedismissed with costs.
■ De Bruyn’s Translation pp. 427-428.