( 462 )
Present: Drieberg J.
ELWES v. VAN STARREX.250—C. R. Kandy, 5,586
Right of way—Declaration that land is free from servitude—Jurisdiction.
Where the plaintiff sued for a declaration that the defendantwas not entitled to a right of way over the plaintiff’s land,—
Held, that the test of jurisdiction was the depreciation in valuecaused to the land by a recognition of the right of way.
PPEAL from a judgment of the Commissioner of Requests,Kandy.
Soertsz, for defendant, appellant.
H. V. Perera (with Rajapakse), for. plaintiff, respondent.
April 23, 1929. Drieberg J.—
The respondent is the owner of Kituldeniya Estate. There wasa public footpath 3 or 4 feet wide, referred to as a Gansabhawapath, from the high road at Daulagalla to Gadaldeniya, whichpassed over Kituldeniya Estate. In 1903 the respondent, havingbought some other blocks of land for the purpose, constructed aroad 12 to 15 feet wide over the track of the path where itpassed through his estate. He obtained the sanction of theGovernment Agent before doing so. The road cost about Rs. 3,000or Rs. 4,000 and the-upkeep of it amounts to about Rs. 1,000 ayear. There is evidence which stands uncontradicted that therespondent would not allow cart traffic on the road except with hispermission. People on foot use this road as they did the footpathbefore it was merged in the road, and the footpath continues fromthe end of this road to Gadaldeniya. The respondent does notdeny the right of people to walk along the road.
The appellant, who is the owner of Boumebrook Estate, claimsthe right to drive his car over this road and the respondent broughtthis action to obtain a declaration that the appellant is not entitledso to use it, and for an injunction.
The appellant in his answer took the position that by wideningwhat he called t he old public road the respondent could not becomeentitled to the exclusive use of it for wheeled traffic. He alsopleaded prescription based on the uninterrupted user by him andhis predecessor in title for over thirty years.
( 463 )
It is clear from the evidence that there was no cart track previouslyalong what is now the road but that there was merely a footpath.The case is not one of the respondent improving an existing cartwaybut of his constructing a road on his own land and the footpath.
There has been no attempt to prove the claim of prescription forwheeled traffic. In fact, in 1925 the appellant offered to make apayment of Rs. 12 a year for the use of the road, and his claim toenjoy a servitude of a right of way over it has no substance in it.His claim to use it as a right of way in common with the publicgenerally is based on some suggestion that there has been a dedica-tion of this road to public user. The evidence however completelynegatives this. The respondent has consistently asserted hisexclusive right to use wheeled traffic on the road, both as againstprivate persons as well as the officers of the Provincial RoadCommittee, who took his permission for taking carts over it.
Objection was taken to the jurisdiction of the Court to try thisaction. The land which forms the road is over Rs. 300 in value,but there is no real dispute as to the ownership of it, and all thatthe appellant claims is the right tc use it. If the appellant suedto get a declaration of a right of way over this road the test ofjurisdiction would be the price for which the right could be acquired,Soyza v. Perera1. The respondent has stated that by the appellantusing the road he has suffered damage to the extent of Rs. 200.I understand this to mean that the road would suffer a diminutionin value of Rs. 200 if the appellant’s claim was allowed. Thisappears to me to be the proper test of jurisdiction, and there isnothing to show that the respondent’s assessment is wrong.
The decree declares that the appellant is not entitled to use theroad as a cartway. It should be amended to conform to the prayerin the plaint that the appellant is not entitled to use the road forcarts and c^rs.
Subject to this amendment the appeal is dismissed with costs.
Elutes v.Van Slarrex
1 (1919) 6 C. W. It. lo3.
ELWES v. VAN STARREX