GABVIN S.P.J.—Fernando v. Senerat.
4932Present: Garvin S.P.J. and Maartensz A.J.
FERNANDO t>. SENERAT
33—D. C. Kalutara, 14,463
iPublic.path,—Partition decree—Rights of public—Ownership of Crown—
Determination of right.
A public path over- a* land is not extinguished- by a partition decree,affecting the'.land, to which, the Crown is not a party.
^^PPEAL from a judgment of the District Judge of Kalutara.
H. V. Perera, for plaintiff, appellants.
Ranawake (with him 8. G. Perera), for defendent, respondents.
•January 28, 1932. Garvin S.P-.J.-^
The plaintiffs brought this action alleging that the defendants falselyclaiming to be entitled to a right of wav over their premises had cut thebarbed wire fence erected by them and had forcibly entered the same.
They sought a declaration that their premises were free of any suchright of way.
. The defendants on the other hand pleaded that the plaintiffs had '•wrongfully blocked up a public path to their damage. The path claimed■as a publi’c path is depicted in the plan 10,366 made by B. M. Flamer'■Caldera, Licensed Surveyor, marked D 1, and indicated in that plan bythe letters U. V. W. X. Y. Z.
The District Judge held that it was a public path over which the public‘ have enjoyed a right.of passage from time immemorial. In my judgmentthere & ample evidence of user by the public for over a third of a century.Moreover, the plans D 2 of 1883 and D 4 of 1862, on each of which thispath is marked, show that it was in existence for over sixty years. Thedecision of the learned Judge is therefore well founded.
It was urged, however, that inasmuch as a certain portion of landtraversed by this public thoroughfare and over which it lay was the.subject of proceedings under the jpartition Ordinance, which resulted
GARVIN S.P.J.—Fernando v. Senerat.347*
in a final decree, which makes no mention* of and does not expresslyreserve this thoroughfare or recognize its existence, that the rights ofthe public have been determined and that the title to the track is nowin the plaintiffs freed from the rights of public passage which have beenproved to have existed till then. Section 9 of the Partition Ordinancemakes the ffnal decree entered in a proceeding under the PartitionOrdinance " good and conclusive against all persons whomsoever whateverright or title they have or claim to have in the said property Thesewords appear to me to contemplate the rights of persons and not suchrights as those of the public in -a highway which are not the subject ofindividual personal ownership. The proposition that, if the ownersof the land on either side of a highway, by concealing from, the Courtthe existence of a highway contrive to obtain a partition decree in terrasof which the highway is assigned to one or more of them, the highway isdetermined and all rights of the public extinguished, is one to whichI cannot assent. Bights in a road may not be acquired by prescription,vide section 90b of the Public Thoroughfares Ordinance. A public pathis a road within the meaning of that Ordinance. Onct a road alwaysa road, unless the road be stopped up, by order of the Governor undersection S of the Public Thoroughfares Ordinance or by other lawfulauthority.
It is well settled law that the Crown is not bound by a. final decreeentered – in a proceeding under the Partition Ordinance, and it wasconceded that, if a highway lay over land which belonged to the Crown,it would remain unaffected by sueh a decree. It is not possible to sayin this case to whom the land belonged when this path came into existence.The Eoman-Dutch law recognized two classes of public roads—viaepublicae and viae vicinales, A via'publica was one which was declaredto be a public road by the public authority. Originally a via vicinaliswas one which was made up of contributions of the ground of privatelandowners and used by the owners of such farms in common underexpress or implied agreement. The term appears to have been appliedlater to all unproclaimed public roads. ** The difference between theseand proclaimed roads is that in the latter the rights of .the public area matter of ownership exercised through the Divisional Councils,whereas in the former they are a matter of servitude exercised by eachmember of the public in his own right. ”(Maasdorp. Vol. II., p. 189.)
It was argued that a public path such as this was a via vicinalis andthat the rights of the public being merely in the nature of a personalservitude exercisable by each member of the public were extinguishedby the partition decree.
Whether any such distinction between public thoroughfares everexisted in Ceylon is extremely doubtful. I have not been able to tracein our reported cases any mention of a via vicinalis as distinct froma via publica in any of our earlier cases. The first reference I havefound is as recent as 1926 in the case of Appuhamy v. Alapatha1 in whichthe passage in Maasdorp above referred to is cited. No such distinction-is to be found in our legislation relating to public thoroughfares. * Sucha thing as a “ proclaimed road ” or an authority empowered to proclaim
1 7 C.L. Recorder 107.
GARVIN S.P..T.—Fernando t>. Srncraf.
what are to be deemed public roads does not exist and evidently neverrdid exist. Publi'c roads are those which have existed from time im-memorial or which have from time to time been constructed on landbelonging to the Crown or acquired for the purpose and thereafter usedhv the public as means of communication. Every public path is a publicroad within the meaning of the Public Thoroughfares Ordinance. No. 10of 1861, and I am aware of no difference in the legal status of the differenttypes of public thoroughfares. All public roads including public paths■are vested either in some local (tovemmenjt authority or in the Provincialand District Bond Committees.
Even if it be assumed that there is a presumption of title to the soilin the adjoining landowners unque’ ad medium $!um. it is subject to theright ot the Sovereign to passage for himself and his people. If this beall the rights 'exercisable against the owners of the lands adjoining theroad, they are rights which cannot be affected since the Crown is notbound by the decree upon which the plaintiffs rely.
But a public road is not merely a matter of servitude. It is somethingcorporeal and as such the subject of ownership and extends at leastto the surface and the whole area of user if, indeed, under our law it doesnot extend to the freehold. To the extent to which it is the subjectof ownership a public road is the property of the public, that is, of theState, and cannot be affected by a partition decree.
There are however indications in the Public Thoroughfares Ordinancethat the property in public roads was at least assumed to extend notmerely to the area of user but in all cases to the freeholds. Section 9which authorizes the Governor with the advice of the Executive Councilon the application of the Provincial Committee to stop up or divert.a icad and to substitute a new road for the one so diverted empowers the'Chairman of the Committee when so ordered to stop up or divert a roadto take prossession of the land of any owner for the public use and “ tomake an agreement on behalf of Government with the owner for therecompense to be made ■ for such land …. either by allowinghim to possess the ground, of the former road, or- by the grant of otherCrown land in exchange, or by payment in money …. and the
certificate of such Chairman that any person has been allowed by the■Governor to possess any part of the former road or other Crown land…. shall be sufficient evidence of the title of such person to the
same There is no recognition here of .the rights of the adjoining land-owners to the soil of the road usque ad medium filuvi viae even in thecase of roads which would answer to the description of viae vicinales asknown to the Roman-Dutch law.
But it is not necessary for the determination of the question before usto ascertain whether the State ownership of public roads extends beyondthe area and includes the freehold. It is sufficient to say that the State'has rights of ownership in public roads and such rights are not affectedby n decree for partition to which the Crown is not a party.
The appeal is dismissed with costs.
‘Maartensz A.J.—1 agree.
FERNANDO v. SENERAT