138-NLR-NLR-V-50-FERNANDO-et-al.-Appellants-and-JAYASURIYA-et-al.-Respondents.pdf
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JAYETTJJEKE S.P. J.—Fernando v. Jayaauriya
1949Present: Jayetileke S.P.J.FERNANDO et ail., Appellants, and JAYAST7RIYA et al.,Respondents
S. C. 175—0. R. Panadure, 11,479
Right of way of necessity—Glai/m on behalf of tenant—Right appertains onlyto land—Actual necessity.
Where the plaintiffs based their claim for a cartway of necessity onthe fact that their tenant, who had a boutique and carpentry shed on theland, needed a cartway for the purposes of his business—-
Held, that the plaintiff’s claim was personal in its nature and that theright of cartway could only be claimed as appertaining to land.
i^.PPEAL from a judgment of the Commissioner of Requests, Panadure.H. W. Jayewardene, for defendants appellants.
A. L. Jayasuriya, for plaintiffs respondents.
Cur. adv. vult.
May 31, 1949. Jayetileke S.P.J.—
, The plaintiffs are the owners of lot 1 and the defendants of lots 5 and 6in plan P 1. The said lots are situate in the village called Egoda TJyanain Moratuwa and are in extent 0 ■ 1 • 36, 0 • 0 • 20 and 0 * 1 • 0 respectively.The entire land depicted in P 1 belonged in common to several persons,who amicably partitioned it in the year 1923 by executing an indentureP 2. A footway was reserved along ABCD in P 2 for the use of theowners of the divided lots in order to give them access from their respect-ive lots to the high road on the east and the sea-shore on the west.The plaintiffs alleged that they enlarged the footway into a cartwayand used it as a cartway for a period well over the prescriptive period
JAYETTLEKB S.P.J.—Fernando v. Jayasuriya
666
and claimed the right to use it as a cartway by prescription. In thealternative they claimed a cartway of necessity. After trial the learnedCommissioner of Requests held against the plaintiffs on the claim basedon prescription and declared them entitled to a cartway of necessity.The defendants appealed against the judgment. It was urged on theirbehalf that the learned Commissioner was not justified in law in givingthe plaintiffs a cartway of necessity on the materials before him.
A way of necessity is a right of way granted in favour of a propertyover an adjoining one constituting the only means of ingress to andegress from the former property to some place with which it must ofnecessity have a communicating link1. "Van Leeuwen 2 says that a wayof necessity is allowed “ as well for a person on foot, as with a wagon,in order to gather and carry off the fruits of the land or to drive cattleto and from it ”. He also says that the word “ necessity ” is interpretedvery strictly 3. In Peacock v. Hodges4 it was held that the claim fora way of necessity must be restricted to the actual necessity of the case.
The plaintiffs did not say that they needed a cartway to take theproduce of the land to the main road or to bring manure and other thingsnecessary for the cultivation of the land from the main road. Evenif they did, the Court would not have been justified in granting them acartway of necessity because their land is so small that the produce, &c.,can very conveniently be carried by men. In Fernando v. De Silva6Drieberg J. said :—
“ These lands lie a short distance from the Negombo-MirigamaRoad. The land in that part of the country, as indeed is the case inmost rural areas, consists of numerous small holdings and, necessarily,comparatively few of them can have direct access by carts to the mainroad. Under these conditions the respondents whose lands cannotbe described as block lands, because they have free access to a roadby a path, cannot say that a cartway is a necessity. Ear from thisbeing the case it would be a distinct luxury not enjoyed by the majorityof owners of similar lands. It has been claimed that a road is necessaryto take the produce of these lands to the cart road. In my opinionthere is no such necessity, for the limited produce of small extentslike this can easily be carried by men to the’bnain road
The evidence seems to indicate that the plaintiffs have based theirclaim for a cartway of necessity on the fact that their tenant, who has aboutique and a carpentry shed, on the land, needs a cartway for thepurposes of his business. The simple answer to this claim is that it ispersonal from its very nature and that a right of way can only be claimedas appertaining to land.
I would set aside the judgment appealed against and dismiss theplaintiffs’ action with costs in both Courts.
Appeal allowed.
Hall and Kellaway on Servitudes p 65.
'■Roman-Dutch Law 2.21.7.1 Kotze 295.
1 Roman-Hutch Law 2.21.12.1 Kotze 297.
(1876) 6 Buchanan’s Reports 69.
6 (1928) 30 N. L. R. 56.