( i!09 )
Present : Pereira J. and Ennis J.
HANIFA et al. v. ISMAIL et al.
452—D. C. Colombo, 35,196.
Servitude—Roof projecting over, another's land.
A right to have a portion of the roof of one's house projectingover or overhanging the adjacent land may be acquired by pre-scription; bnt where a portion of roof in respect of which a- rightso acquired is removed by its owner, he has no right m lieu thereofto claim to be allowed to let another portion of his roof at adifferent place and of different dimensions overhang the adjacentland.
T
EE facts are set out in the following judgment of the DistrictJudge:—
Theplaintiffsarethe owners of premisesbearingassessment No.30,
PrinceStreet,Pettah; the defendants ownthe adjoining premiseson
the west bearing assessment No. 29.
The plaintiffs allege that the defendants in April, 1912, pulled downtheir house and erected a large upstair building on the site of the oldhonse, and that the new wall built by defendants is on the site of the. old boundarywall which stood on premises No. 30, and that the defendants have encroached onpremises No. 30 in the extent of 76.47 square feet.
The plaintiffs further allege .that the eaves of defendants' newbuilding and certainbrick mouldingsprojectoverand overhangtheir
premises, that the new bnilding completely shuts out the light and airfrom premises No. 30,. and that in consequence of the building operationsconsiderable damage has been done to the walls of premises No. 30.
The plaintiffs estimate the value of the encroachment at Bs. 500, andthe damage at Bs. ’4,500.
The plaintiffs pray for a decree—
Directingthedefendants toremove the- encroachmentand
the eaves and projections overhanging premises No. 30,
1914.
( *10 )
1914.
tlanija v,Ismail
Declaring that premises No. 80 are free from the burden of anyservitude claimed' or asserted by the defendants' in respectof the windows overlooking premises No. 29.
Directing the defendants to close the windows.
Directing the defendants to pay plaintiffs Ek. 4,900 as damagesand fnrther damages at Bs* 90a month.
For costs.
The defendants claim to be the owners of the site of the boundarywall Upon deed No. 96 of November 25, 1897, and by prescription, andto have acquired a title by prescription to a servitude in respect of theprojecting eaves and brick mouldings referred to in paragraph 5 of theplaint.
The parties went to trial on the following issues, viz.: —
Wasthe walldividingplaintiffs' fromdefendants'building
standing on plaintiffs' land or on defendants' land?
If not, was it a common wall ?
If the wall was standing oil plaintiffs' land, have defendants
acquired a title by prescription to the wall and the land onwhich it stood ?, ’»
(4.) Are the plaintiffs entitled to have I he window overlookingplaintiffs' building in defendants' flew building closed ?
Do the eavesand . brick mouldings ofdefendants'building
project over the plaintiffs' land ?
Have defendants acquired a title by prescription to have the
eaves and brick mouldings projecting over plaintiffs' land ?
Whatdamage, ifany/ areplaintiffs entitledto owing to injury
to ’ plaintiffs* building, by reason of want of# proper care, ifany, in carrying out the. adjoining building operations, andbyreason ofplaintiffsnot being ableto let the .building
from April, 1912, if that were so ?
In any case, can plaintiffs claim to – have the said wall removed ?
*
a
*
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It* is clear, therefore, from the evidence of these two witnesses ‘ thatthe landohwhich the dividing wall stands belongsto the defendants,
and I find-accordingly on the 1st issue.
I answer the2nd issue inthe negative. I need notadjudicateon
the 3rd issue and 8th issue.
Aaregardsthe 5th issue, defendants' counseladmitted that the
eaves and brickmoulding projected over plaintiffs'land, andI answer
the issue in the affirmative.
The defendants'claim of aprescriptive righttohavethecaves
overhanging plaintiffs' premises is based on the allegation that the roofof the old building of No. 29 was higher than the roof of No. 30, andthattheeaves overhang premises No. 30. Thedefendants acquired
premises No. 29in 1897, andthey allege that to theirknowledgethe'
eavesoftheold building overhung premises No. 30,and that the old
building on No.29 was anoldone in 1897, andtheeavesmusthave
overhung No. 30 for many years prior to 1897. 1
1 believe the evidence of the first defendant that the old building
on No. *29 wasinexistencein1897.- and that theroofwashigherthan
( 311 )
the roof ofpromises No. 30, and that the eavesoverhangthe roof of
No. 80, ever since 1897, to his knowledge . . , ,
Defendants'counselcontendedthat the prescriptive rightso acquired
was not lostby thefact thatdefendants raisedtheir roofand pntthe
eaveB on a higher level, and cited in support of his contention the caseof Pillay e. Fernando.1 In the case cited the plaintiff, who had foroverthirty years a windowin hiswall overlookingthedefendant's
house, demolished the wall and rebuilt it, and it was held that thetaking down and rebuildingofthewall didnot destroyplaintiff's right
of servitude.I am of opinion that the principle laid downin thecase
cited'isapplicable to thecase underconsideration, andI find on the
6th issue that the defendantshaveacquireda title byprescription to
havetheeaves projectingeverplaintiffs'land, but thattheyhave not
acquired a prescriptive title to' have the building projecting over theplaintiffs’ land. As regards the window, the defendants have in noway established a right to have a window overlooking the plaintiffs’premises. Thewindowcan beclosed withoutmateriallyaffectingthe
light and airof defendants' premises, and I answerthe 4thissue inthe
affirmative.
As regards plaintiffs' claimtodamages, thegrounds onwhich damages
were claimedin the plaint is not quite the ' sameas thegroundsput
forward in the 7th issue proposed by plaintiffs’ counsel.
Intheplaint damageswereclaimed,(I) on accountofthe injury
caused to thewalls of plaintiffs' house, and (2)because defendants’new
building completely shut out the light and air from plaintiffs' premises.
Atthe trial,however, noclaimtodamage wasputforwardon the
second ground alleged in-the plaint.
I inspectedthe two houses on September 12, andit wasobviousthat
defendants' new building in no way affected the' light and air of plaintiffs'premises.
At the trial the plaintiffs claimed damages on account of the injury tothe walls and on account oftheirnotbeing able toletpremisesNo. 30
owing to the injury to the walls.
1 entirely disbelieve the evidence of the first plaintiff that his tenantKnaOmer leftthe premises in April;1912, owingtothe breaks and
cracks in the walls causedbythebuildingoperations….
For the reasons given by me I answer the 7th .issue in the negative.
I find that the plaintiffs are entitled to a decree directing the defend-antsto removethe mouldingandclosethe window.Iotherwisedismiss
plaintiffs’ action. The defendants are, I think, entitled to be paidtheir costs by plaintiffs.
Elliott, for plaintiffs, appellants.
Bawa, K.C.,_for defendants, respondents.
lur. adv. vvlt.
May 8, 1914. Pereira J.—
The District Judge does not appear to me to be right in his deci-sion on the question of the plaintiff’s right to have the portion ofthe defendant’s roof projecting ov£r or overhanging the plaintiff’s
* (1905) 14 N. L. it. 13S.
1914.
Hanifa v.Ismail
1M4.
Phbbxha J,
ifan^a v./email
( 312 )
premises taken down. He appears to* have based his decision onthe judgment in the case of Pillay v. Fernando.1 There, what thisCourt held was no more than that, in the case of the servitudelie luminibus officiatur, the doing of such a necessary thing as therenovation of an old wall,, in which was the aperture or window forthe enjoyment of light and air, should not be deemed to prejudicethe■ servitude enjoyed by the owner of .the dominant tenement;that is to say, in building up the new wall he might place a windowor leave an aperture in it so that he might enjoy the servitude asbefore; and it will be seen that in the judgment of the District Court,which was'affirmed in that case' the plaintiff (owner of the servitude)wa6 restricted to the exact locality and dimensions of the old window.In the present case, however, the portion of the defendant’s roofthat now projects over the plaintiff’s land is at a totally differentplace from that at which a projection is said to have at one timestood; and the present projection apparently covers a much largerarea than the old one. It has been said in appeal that what thedefendant was entitled to was the servitm projiciendi, and that inthe case of 6uch a servitude, when the dominant tenement- is soaltered as to destroy the projection, the servitude would still existto the extent of giving the owner of the dominant tenement a rightto have a projection elsewhere, the advantage of which would, insubstance, be the same as that enjoyed by the owner by means ofthe old projection. I can find no authority in the Roman:Dutchlaw for this latter proposition, and as regards the former there isnothing to show that the defendant had at any time the right to nservitus projiciendi. He never had, by reason of a grant, last will,pact, or stipulation, any right to project any part of his house overthe plaintiff's land. His case is no more than that for more thanten years he had a portion of his roof projecting over the plaintiff’sland. The maxim of the English law—cujus eet solum ejus est usquead coelum el inferos—is a6 much a maxim ako of the Roman-Dutch asof the Roman law (see Voet 8f 2, 18), and the old projection of thedefendant’s roof was, therefore, no more than an encroachment bythe defendant on the plaintiff’s land, .in respect of which the defend-ant had acquired prescriptive rights, which certainly did not extendto a right to remove that particular encroachment and encroach onanother part of the plaintiff’s land.
The learned District Judge is also in error in ordering that thewindow on the defendant’s wall overlooking the plaintiff's, premisesbe closed. The plaintiffs have every right, by means of suitablecontrivances, to shut out light and air from the window so as toprevent the defendant from acquiring by prescriptive enjoymentthe servitude ne luminibus officiatur (see Neate v. Abrew ; 3Wendt 188), and I may here say that that right will not be affected■ by the decision in this case, but they cannot maintain a claim to
1 {1905) 14 N^L. R. 138.* 5 S.C.C. 126.
( 313 )
•/* •
compel the defendant to close the window. The appellant’s1914-
counsel did not contest this proposition, and therefore 1 need sayj
no more about the matter..~r~T
As regards damages, I am inclined to think that the plaintiffs ^maUhave made out a sufficiently strong case to be entitled to an awardin their favour. The most satisfactory witness on the questionappears to me to be Mr. Braid. I prefer his evidence to that of thewitness who, with doubtful propriety, combines the' vocation ofbuilder and supervisor of buildings with that of a proctor of thisCourt, especially in view of the evidence of the witness C. C> Dias,who says that the cracks on the wall of the plaintiff's house haveincreased in sizfe slightly during the building operations. In hisevidence Mr. Braid pledges himself to the statement that the crackson the wall were of comparatively recent date, and that in hisopinion they were due to the defendant’s building operations. Hegives his reason, namely, that there is a decided settlement of theAvail and floor adjoining the property on which the building opera-tions were being carried on. The District Judge, who inspected thebuildings, does not controvert this reason. He says: “ The cracksappeared to me to be old ones.” He judges merely from appear-ances. I do not think it safe to allow an opinion so formed by theJudge to displace the sworn testimony of a competent engineer,especially when the reason given by the latter for his- opinion is leftwithout comment. Of course, the cracks may be repaired' in avariety of waArs. They may be merely plastered up at a cost of afew rupees, but I see no reason to reject Mr. Braid’s evidence whenlie says that it would cost about Bs. 700 ” to remedy these defectsand make the house flt for occupation.” As it was possible thatMr. Braid included in this sum expenditure other than the remedyingof the defects for which the defendant was responsible, I thoughtthat there should be a fuller assessment of damage, but on mysuggestion the appellant’s counsel was content to accept Bs. 250,and this I think is. if anything, too low an estimate.
I would van' the decree by deleting the order on the defendantto close the window of his nefr building which overlooks the plain-tiff's premises, and by condemning the defendant to remove so muchof the roof of his house as projects over or overhangs the plaintiff’s. premises, and to pay the plaintiffs Bs. 250 as damages. I would alsodirect that each party do bear his own costs in both Courts. Inother respects the decree should.. I think, stand affirmed.
Ennis J.—I entirely agree.
Varied.
