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FERNANDO v. FERNANDO ct al.
C. R., Colombo, 6,905.
User of way across intervening land—Personal user and not user as owner ofdominant tenement—Prescriptive right.
Where plaintiff, a dhoby, by permission of defendant used for morethan ten years a footpath through defendant’s land to go from a housein which he was living, and which adjoined defendant’s land, to hiswashing pond, which was on the other side of defendant’s land andwhere the plaintiff, having purchased in 1893 the house in which he hadbeen living, continued to use the footpath till 1898, when thedefendant objected to the plaintiff going through defendant’s land,—Held, per Lawbie, J., that the law of Ceylon does not recognize theacquisition by user of servitudes personal to a single individual, andthat, as the plaintiff’s user previous to 1893 was not as owner of adominant tenement, his user previous thereto, though enjoyed for morethan ten years, did not create a prescriptive right in his favour.
LAINTIFF, as owner of a piece of land called Kospatadeniya,claimed to be entitled to a footpath over defendant’s land
in order to go to a pond situated in a land belonging to theplaintiff.
Plaintiff averred that for a period of upwards of fifteen years hehad enjoyed this user by a title adverse to and independent ofthe defendant. He alleged that defendant had wrongfully ob-structed the right of way, and he prayed that “ he may be declaredentitled to the use of the said footpath," and for damages andcosts.
It appeared that between plaintiff’s house and plaintiff’s pondthere intervened the defendant’s land, and the footpath led directly
1899.March 9.and SO.
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through it to the pond. The defendant denied plaintiff's right ofway, and pleaded that plaintiff and other villagers had alwaysused a circuitous footpath to the pond in question without goingthrough defendant’s land.
On the trial day plaintiff and his witnesses deposed that he wasa dhoby; that he had lived in his present house for thirty years;that before he became owner of the land in which the pond was,he had used the pond for washing clothes _by permission of itsowner Rapiel; that Bapiel sold it in 1893; that he had washedclothes in the pond for fifteen or sixteen years, and had always(during that period gone to the pond by the path which went overdefendant’s intervening land; that defendant blocked it up threemonths before action brought, and that there was no other pathto the pond. The defendants and his witnesses deposed thatthere was another path (besides the one in dispute) leading to thepond which had beep, used by plaintiff.
The Commissioner thought the weight of evidence was decid-edly in favour of plaintiff’s contention, and “ was satisfied that
“ plaintiff has a prescriptive right to the footpathover
“ defendant’s land,” and gave judgment accordingly for plaintiff.
Domhorst, for appellants.—According to plaintiff he boughtthe land on which the pond is only in 1893. The action was filedin 1898. So he had only five years’ use of the path. If this isregarded as a prsedial servitude, it was incumbent on the plaintiffto prove that his predecessors in title to that land enjoyed theservitude. There is no such evidence. If, on the other hand, theservitude be regarded as personal to plaintiff, it has not beenshown that he had a grant from the defendant for it, nor has heenjoyed the servitude for a period of ten years or more. There-fore the Commissioner’s judgment is wrong.
E. Jayawardena heard contra.
Cur. adv. vult.
20th March, 1899. Lawrie, J.—
I do not understand that the plaintiff claims this right of wayas a servitude appertaining to the land in which he lives. Hedoes not say that this is a servitude, of which his land is thedominant, and the defendant’s land the servient, tenement. Iunderstand that he means he has acquired by use a personal rightof way. The issue shows that that was the plaintiff’s claim; forthe issue is, “ Is plaintiff entitled by prescriptive use to a foot-
“ path over the defendant’s property as shown by a lineon
" plan 434?”
In my opinion our law of prescription does not recognize theacquisition by user of servitudes personal to a single individual.Even if the use by the plaintiff of this path had been proved fora third of a century, he would not have acquired right of way.There must be a dominant tenement, and the user by the ownermust be to the advantage of that tenement.
Here the plaintiff, before 1893, had no right to use the water ofthe pond, which was useful to him only because he was a dhoby.He had the permission of the owner—that permission was personalto himself—it was not connected with his ownership of the househe lived in. A purchaser of the house, who was not a dhoby andhad no permission, could not have claimed right of way to the pond.
The position of the plaintiff became different when in 1893 hebought the pond. Then the path became the way between twolands belonging to the same proprietor, The user of way acrossan intervening field, from one field to another, will, if continuedwithout interruption for ten years, become a right of way infavour of the two tenements connected by the path against thetenement over which the path passes.
In my opinion the plaintiff has not acquired the right of wayclaimed, and I set aside and dismiss the action.
March 9.and BO.
FERNANDO v. FERNANDO ct al