5'crrilutle Private right aj u-c.y—Ifrasonable user—Obstruction by gates—Hair far
Ail obstruction of n private riglit- of way i.-i not. ac-l ionablo unless it issubstantial.
Plaintiff luul a right, of way from her residential property along lot C whichwas a portion nml boundary of tho defendants’ residential property and lendingto a public roadway. At tho entranco to lot C from tho roadway there woretwo gates which wore maintained by the defendants and had been in existenceeven before tho servitude had been acquired by tlio plaintiff.
Held, that tho plaintiff was not entitled to have the gates removed. Timdefendants were, however, bound to keep the gates open at all times except atnight-time when they might remain closed but never locked.
-^^-PPEAL from a judgment- of the Court of Requests, Colombo.
II. V. Perc-ra, Q.C., with Ivor Afisso and A. Xatjendra, for the defendants-appellants.
with T. P. P. C'oonp.lillel.c, for the
E. 13. Wikramanayal-e, Q.C..plaintiff-respondent.
Cur. ado. vttll.
December 11, 1956. L. W. or Su.va. A.J.—-
The dispute between the parlies to this action, instituted in 1954,is concerned with a private right of way which is depicted as Lot C inDl, the plan Xo. 51 of 1941. The plaint iff-respondent as the owner ofLot A is entitled to a right of way over Lot G, loading to Lot A from the43rd Lane which is now known as Vivcka-nanda Road at WclJawatte.The defendants-appc-llants, who own Lot C subject to this right of way,also own Lot B which adjoins Lot A on the southern side. Lot C runsalong the western boundary of Lot B and touches the southern boundaryof Lot A. Lots A and B arc respectively the residential properties of thorespondent and tho appellants.
It is common cause that the grant in favoui- of. the respondent gaveher and her agents a full and free right of.way over Lot C at all times forthe purpose of passing and repassing, with or without animals andvehicles, to Lot A; The respondent alleged in her plaint that the appel-lants had in 1946 erected a gate at the entrance to Lot- C but did notmake use of it so ns to affect the roadway. Since July 1953, -however,they had begun to keep the gate always closed, thereby obstructing the
right of way and denying to the respondent- the free nse thereof. Atthe trial it was found that a gate had existed at the same spot- fromabout 1920, and ^ had been replaced by another gate about the year1940. The learned Commissioner of Requests found that there were infact, at all material times, two gates at the entrance to Lot C fromYivckananda Road. What- the appellants had done since 1946 was toclose the gates and place a latch across the two projections on the gates.The appellants contended that, since the gates were not locked, freedomof passing along the roadway to and from the respondent’s premiseswas not hindered. They took up the position that the servitude inissue had been acquired by the respondent subject to. the existence of thegates.
There was no evidence at the trial whether the gates were kept closedat all times of the day and night before 1946. The learned Commissioner,after recounting tlio hardships caused to the respondent and her familyby their having to alight from their car, raise the latch, open the gates,and again close them, came to the conclusion that, though these gateshad existed since 1929, tho right of way created in 1941 gave a free andfull passage over Lot C at all times of the day and night to the occupantsof Lot A, and the appellants themselves became the owners of Lot C in1951 subject to the same right in the owners of Lot A. He accordinglyentered a decree in favour of tho respondent, declaring her entitled totho free and unobstructed use of the right of way over Lot C and alsoordered the appellants to remove the gates at the entrance to Lot C asjn-ayecl for by the respondent.
Under the Roman-Dutch Law, an obstruction of a private right ofway is not actionable unless it is substantial. There is no differencebetween the Roman-Dutch Law and the English Law on this question :vide ex parte Letonl: in re JIarcus, N.O. <0 others 1, which follows thoruling in Petley v. Parsons 2 cited by learned counsel for the appellants.The following statement of the law in Halsbury’s Laws of England(Hailslmm’s ed.) is quoted and followed in Letord’s case 1 :
Xo action will lie unless there is a substantial interference with thoeasement granted … The question whether any particular
interruption amounts to an unlawful interference depends upon thonature of tho right of way and of (ho.locus in quo, and upon the generalcircumstances of tho case.”
The fact cannot be overlooked that, in the case of a private right ofway, the ownership of the way is in the owner of the soil, though suchownership does not entitle him to obstruct the way to any substantialdegree. At the same time, the owner of the riglit is entitled only toreasonable user. The learned Commissioner has upheld the literalterms of the grant and has not- considered this legal aspect of the matter.Tho order to remove the gates cannot be justified since they have been,in existence even before the servitude. There is no doubt that the'keeping of the gates closed, held together by a latch at all times of^theday, is a substantial interference with the enjoyment of the respondent’s
1 {J0o3) 4. S. .4. L. K. 350.- (tOl-J) 2 Ch. 653.
.312 •^DESj^^^^L.J'.—X>e iSa Harp a v. Wickremaralne
rigtt;.i;^L'Sro ma^jqu|ls|pmsWise in the case of an obstruction to a privateright of*vay—firstly, whether the interference is substantial and notmerely appreciable, and, secondly, reasonable user of the way by the ownerof the right. There arc hi this case, established by evidence, circumstanceswhich make it necessary to secure to the appellants some degree of privacyand protection which they need against trespassers on their residentialproperty consistent with the legal right of the respondent to reasonableuser. In Peliey v. Parsons 1, where the grant was in substantially thesame terms, Piekford L.J. said : " The claim to erect and maintain agate which is to be open during business hours is not in my opinion aderogation from the grant of the right of way.” Taking all the facts
and circumstances into account, I direct a variation of the decree that thegates at the entrance to hot C be kept open at all times except at night-time between the hours of 9 p.m. and 6 a.m. when they may remainclosed but never locked. The appellants must pay the respondent halfthe costs of this appeal.
Decree varied.
1 U01J) 2 Ch. Goo.