004-NLR-NLR-V-74-H.-B.-A.-SOMARATNE-Appallent-and-D.-E.-MUNASINGHE-et-al.-Respondents.pdf
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Somaralne v. Munasinghe
1968Present : Siva Supramauiam, J.
H. B. A. SOMARATNE, Appellant, and D. E. MUNASINGHEet al., Respondents
S. C. 32/65— C. P. Gampaha, 8330/A
Servitude—Pracdial servitude—Incapacity of dominant owner to transfer or let theservitude apart from the land—Claim for cartway of necessity—Considerationsapplicable.
‘A pracdial sorvitude is constituted in favour of a particular prnedium andcan only pass with the land. Tho dominant owner cannot transfer tho landto somcono olse and kcop tho servitude for himsolf, or vice versa, nor can holot the sorvitudo, or lend tho uso of it to strnngors apart from tho land."—Domat; V'cet. Accordingly, tho ownors or occupiers of tho dominant tonomontin rcspoct of a cartway cannot grant permission to tho ownors of tho adjoininglands to uso tho cartway.
Whoro a claim for a cartway is basod on proscription, an alternative claimmay bo made for a cartway of necessity. Tho failuro of tho plaintiff to establishproscriptive user will not nccossarily disontitlo him to a cartway of nocossityalong thosamo routo.
Tho fact that aftor tho cartway in disputo was blocked by tho defendanttho plaintiff used anothor routo running ovor lands belonging to hi3 closorolutives is not a roason to hold that tho plaintiff has other available moans ofaccoss to tho main road. Tho question should bo considored 03 at tho time oftho commoncomont of tho disputo.
If an ownor of landlocked properly has a number of adjoining owners from■whom ho must chooso to demand a cartway of necessity, ho is ontitlod to choosotho owner whoso property affords tho most convenient routo.
SIVA SUPHAMAXIAM, J.—Somaratne v. Uunasinghe
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Appeal from a judgment of tho Court of Requests, Gampaha.
Ranganathan, Q.C., with A. C. Gootteralne, Q.O., and AnandaWijcsekera, for tho plaintiff-appellant.
II. A. KoaUegoda, for the defendants-respondents.
Cur. adv. vult.
January 31, 19GS. Siva Supramantam, J.—
Tho plaintiff who is tho owner of an allotment of land calledSiyambalagahawatte instituted this action fora declaration thiat ho isentitled by prescriptive user to a cartway S feet wido along A B C Das depicted on Plan No. 1S9I dated 7th May 19G2 drawn by SamsonFernando, Licensed Surveyor, marked X. In the alternative! he claimed acartway of necessity along the same route. The sections of the cartwaymarked CD, BC and AB run respectively over lands belonging to tho1st, 2nd and 3rd defendants. Tho plaintiff’s land does not abut anyhighway and contains a coconut plantation. Tho nearest highway istho Bandarawatto-Bemmulla V. C. road which is shown, on the saidplan.
The plaintiff led a largo volume of evidence to prove that ho as wellas his predecessors in title had transported coconuts from his land forupwards of ten years along the route in question to the aforesaid V. C.road. The 1st and 2nd defendants, on tho other hand, denied thateither tho plaintiff or his predecessors had used tho route in question.According to the 2nd defendant, he had teen away in hospital betweenJuly and November 1961, and during that period, the plaintiff hadunlawfully broken down portions of the boundary fences on thoWestern and Eastern sides of his (tho 2nd defendant’s) land at the pointsB and C respectively and had made use of a footpath across his land and,on his return from hospital, ho (tho 2nd defendant) had closed the gapson the fences.
At the end of tho trial, the learned Commissioner appears to havefound himself unable to make up his mind as to which version he shouldaccept. He said : “ It is not easy to garner the truth in this welter ofcontradictory evidence so that one has to bo guided mainly by thotestimony given by the two surveyors. ”
Ho rejected tho plaintiff’s case in regard to the user' of the way inquestion mainly on two grounds :—(1) That when Surveyor Fernandovisited tho spot for tho purposo of survey in May 1962 there wore nomarks visible on tho ground to indicato that carts hac^ been taken alongthat route. (2) That Vipulasena, a brother of tho plaintiff, and James,a friendly neighbour, who owned respectively the lands lying to the Westand North of tho plaintiff’s land had admittedly used the cart road shown
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SIVA SUPJRASLANXAM, J.-—Somaratne v. Munasingh*
on plan Y dated 12th September 19G3 to transport material for thoconstruction of houses on their lands and if tho plaintiff had been makinguse of tho cartway in question, that Vipulascna and James too wouldliavo made uso of tho samo cart way for tho transport of materials. Inhis judgment tho learned Commissioner concluded his examinationof the plaintiff’s case with tho rhetorical question : “ And why is it thatif tho direct and shorter routo had been in existence for so long, Jamesand Vipulascna preferred to take tho longer route to their lands to carrytheir building materials ? Ho hold that this was a circumstancewhich “ strongly militated against tho plaintiff’s caso
The second ground set out above indicates a gravo misdirection on thopart of the learned Commissioner in regard to tho nature of the servitudeof cartway. “ Pracdial servitudes aro const ituted in favour of a particularpraedium and can only pass with the. land. Tho dominant owner cannottransfer the land to someone else and keep the servitudo for himselfor vice, versa, nor can he let the servitude, or lend the use of it to strangersapart from ike land (Domat 1.1.12.1.14 ; Voct, S.l.l)”—Hall and ICellaway :Servitudes, 2nd edition, page 2. Tho cartway could therefore have beenused only by tho owners or. occupants of tho plaintiff’s land and thoplaintiff could not have granted permission to tho owners of tho adjoininglands to uso it. The circumstance, therefore, that Vipulascna and Jamesdid not make use of tho cartway that is claimed by the plaintiff cannothave any bearing on the question whether the plaintiff made uso of thosaid cartway and cannot certainly militato against tho plaintiff’s case.
Tho burden of establishing that ho had acquired tho right byprescription lay on the plaintiff. The evidence relied upon by tho plaintiffdoes not appear to have impressed tho learned Commissioner. Withoutthe benefit of having seen or heard tho witnesses, I am unablo to say,whatever view I may have formed on a reading of the depositions, thattho learned Commissioner was necessarily wrong in his conclusion, despitothe misdirection referred to abovo.
Tho failure of tho plaintiff to establish his claim based on prescriptiveuser will not necessarily disentitle him to a cartway of necessity. Thatquestion has to bo considered on different grounds. Tho learnedCommissioner rejected the claim for a cartway of necessity on the ground .that there is available to the plaintiff “ one, or perhaps, even iporoalternative cart roads from his land to tho V. C. road near tho Pitiyagcderaschool ”.
Surve3'or Croos Dabrera who was called by tho defendants producedplan Y depicting tho alternative routes, which, according to the defendants,were available to tho plaintiff. According to that plan, there is a welldefined cart road leading from tho V. C. road to tho point J. From Jthere is a footpath leading to tho land of James which lies to tho Northof the plaintiff’s land. Tho surveyor stated that the footpath was widoenough for carts to bo taken and that at tho corner of tho boundarybetween tho lands of James ancl tho plaintiff tlicro was a detachablo
SIVA SUPRAMANIAM, J.—Somaratne v. Muna-iinghe17
portion of tho fenco through which carts could enter tho plaintiff’s land.The footpath leads to a devatta road which forms tho Western boundaryof tho plaintiff’s land. Tho devatta road leads to a tract of paddy fieldson tho South. According to the defendants, tho devatta road leads toan irrigation bund and one can reach tho V. C. road by going alongthat bund. It transpired in evidenco, however, that tho devatta roadslopes very steeply and that carts are not permitted to be taken acrosstho irrigation bund and also that tho bund is not wide enough in certainparts for carts to go over. Tho learned Commissioner himself does notappear to have considered it to bo a suitable access to the V. C. road fromtho plaintiff’s land.
Tho first question which tho learned Commissioner had to considerwas whether any alternative route was available to tho plaintiff andwas, in fact, used by him before the disputes aroso between tho partiesin regard to tho cartway claimed in this case. If such an alternativerouto was availablo and was used by tho plaintiff, ho was not entitledto another on tho ground of necessity even if tho route available to himwas circuitous and inconvenient and tho one sought was tho best andnearest outlet. (Gray v. Gray <6 Eslcourl lt.Lentz v. Mvllin2 and Wilhelmv. Norton 3.)
According to tho learned Commissioner’s finding, tho only two witnesseswhoso evidence was reliable were the two surveyors. But ho appearsto havo completely overlooked certain items in the evidenco of each of thosurveyors which corroborated the jdaint-iff’s case that it was only after tho2nd defendant blocked tho cartway in question in December 1961 thatho made use of the cartway shown in plan Y. According to the plaintiff,
' tho coconuts wero carried to the land of James and were thereafter takenalong the cartway shown on plan Y. It was not disputed that therois no cartroad abutting the plaintiff’s land on the West but, as statedearlier, tho 2nd defendant’s position was that carts could, if required,be taken along tho footpath shown on plan Y. Surveyor Dabrera madohis survey in September 1903 and according to his report Y1 as wellas his evidence in Court, the 2nd defendant told him that tho plaintifftook carts along the footpath J S T Q It only during the preceding periodof two years. Tho surveyor found no traces of a cart track along thatportion. Tho period of two years would bo roughly from about thotime of tho commencement of tho dispute between tho. parties. Itis significant that none of tho defendants informed Mr. Dabrera that thoplaintiff had made use of tho cart road shown on plan Y jjrior to 1961.-On tho other hand, according to the evidenco of Surveyor Fernandoand his report XI, tho 3rd defendant who was present at his surveyin May 1962 admitted to him that tho plaintiff used to take his coconutsin a cart along the cartway in dispute in this case. This was not deniedby the 3rd defendant although tho 1st and 2nd defendants in theirevidence denied that tho plaintiff used that cartway. Tho 3rd defendant
1 (1907) 28 Natil L. R. 154.*(1921) E. D. L. 203.
'* (1935) E. D. L.IG9.
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SrVA SUPRA31ANIAM, J.—Somaralne v. Munasinghe
■was ono of the predecessors in title of the plaintiff’s land. The learnedCommissioner appears to have completely missed the significance ofthe admissions made by the 2nd and 3rd defendants to tho surv eyors.It is not an unreasonable inference from thoso admissions that tho plaintiffmade use of the cartway in question prior to 1961. Although thoplaintiff failed to establish his prescriptive right to that cartway, thoadmissions referred to are very relevant for a consideration of tho questionwhether a cartway of necessity should be granted along that route.The fact that after tho cartway in dispute was blocked by the 2nddefendant tho plaintiff found other means of transporting his coconutsis not a reason to hold that tho plaintiff has other available moans ofaccess to tho main road. Tho question should bo considered as at thetimo of tho commencement of the dispute. It would appear from thoadmission of the 2nd and 3rd defendants to tho surveyors that thealternative routes now suggested by the defendants were not tho onespreviously used by tho plaintiff. Tho loarncd Commissioner, in rejectingtho plaintiff’s claim for a way of necessity over tho defendant’s lands,appears to have been influenced by the fact that the alternative routewhich he used after tho disputes arose runs ovor lands belonging to thoplaintiff’s close relatives. He states : “ It is in evidence that the plaintiffhas been using tho alternative Northern route, at least after tho allegedobstruction of tho disputed right of way, and lie can continue to do soparticularly as it runs over the lands of his own close relations.” Thisis a clear misdirection in regard to tho proper approach to a determinationof tho question whether tho plaintiff is entitled to a cartway of necessityover the route he claims. “If the onicr of the landlocked proportymust choose from which of a number of adjoining owners he shall demanda right of way, he will be entitled to obtain it from tho owner whosoproperty affords the most convenircnt onto. ” (Hall and Ivellaway :Ibid, p. 70).
According to the learned Commissioner himself the alternative routewhich the plaintiff made use of after the alleged obstruction is " longer,more arduous and less convenient ” than the one lie claims'in this case.Had the learned Commissioner properly approached the question liecould not have failed to reach the conclusion that tho plaintiff shouldbe declared entitled to a cartway of necessity over the lands of thedefendants. The only matter which lias caused me some anxictj" isthat the section BC of the cartway A B CD cuts tho 2nd defendant’sland in two. The portions of the 2nd defendant’s land which lie to thoNorth and South of BC were originally two separate lands. But forsome years anterior to tho date of this action they had been possessedas one land by the 2nd defendant. If, therefore, the 2nd defendantdocs not wish the cartway to run across the middlo of the land ns presentlypossessed by him, ho should be given the option to demarcate a cartwayalong tho boundaries of his land (cither of the Northern or of the Southernblock) so as to connect the sections A B & C D. The plaintiff shouldpax- compensation to each of tho defendants for the land sot apart byeach to constitute the cartway.
Ariyaralne v. Food and Price Control Inspector, Galle
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I set aside the judgment and decree appealed from and remit tho caseto the Court below for a fresh decree to be entered declaring the plaintiffentitled to a cartway of necessity over the lands of the defendants.The trial Judge will ascertain from the 2nd defendant whether thocartway over his land should be over the portion marked BC on plan Xor whether he desires to offer any other alternative route across his land.The decree will specify the route, if 0113% set apart by the 2nd defendant.In regard to the width of the cartway that should be decreed, the trialJudge will, after inquirj7, fix the minimum width required to take a singlebullock cart of average size but the width should not exceed S feet.The trial Judge will also determine and incorporate in the decree thequantum of compensation that should be paid by the plaintiff to each ofthe defendants for the use of such cartway, provided, however, that thetotal sum awarded as compensation does not exceed Es. 300. Thetrial Judge, in his discretion, rna}7 direct the plaintiff to have the cartwaythat is set apart demarcated on a plan to be made by a surveyor on aCommission to be issued b3r the Court and enter tho decree with referenceto such plan. The cost of such Commission and plan should be borneby the plaintiff.
The costs incurred so far in the Court below will be borne bj7 each party.The costs of the further proceedings will be in the discretion of tho trialJudge. The plaintiff will be entitled to his costs in appeal.
Judgment set aside.