097-NLR-NLR-V-23-HODSON-v.-MOHOMADU.pdf
( 348 )
Preamt: Bertram CJ.
HODSON v. MOHOMADU.
538—P. G. Kakrtara, 58,038.
Thoroughfares Ordinance, ss, 86 and 88—Public road—Immemorialusage—Thirty years' possession.
From a user by the public for a considerable time of a right ofway, the Court may infer a user from time immemorial.
“ A road which was in the first instance in the position merely ofa reciprocal servitude between the owners of a number of properties 'situated in the same neighbourhood, might be converted into apublic right Of. way in favour of the public; where such a useris proved to have continued for thirty years and upwards, theCourt will* in the absence of any evidence as to when and how itactually commenced, be justified in holding that it existed fromtime immemorial.**
The object of section 88;of the Thoroughfares Ordinance is tpdeal with obstructions already established on a public thoroughfare/The object of section 86 is to prevent such obstructions growing up."
npHE accused was charged with putting up a wall along the road
leading from the Colombo-Galle road to the old road atMahagoda without giving one month’s previous notice as requiredby section 86 of Ordinance No. 10 of 1861 as amended by OrdinanceNo. 6 of 1913. The Pdlice Magistrate of Kalutara delivered thefollowing order:—■
“ There is nothing to show that the road in question is a publicroad, nor is there any proof that it has been proclaimed as a publicroad. The prosecution has not complied with the requirements asexplained in 2 8. O. C. 105 before prosecuting the accused. Theaccused denies that the alleged road is a public road, and says it ishis private road. In this case it is not possible for me to decidethese questions. I acquit the accused.”
M, W. H. de Silva, C.C., for the appellant.
J; S: Jayawardene, for the respondent.
June 16,1921. Beetelam C.J.—
it appears to me that in this case the learned Magistrate gave hisdecision without having all ,the authorities placed before him forhis information. . If I understand the evidence rightly, it is to theeffect that villagers, that is to say, the; general body of the villagers,
( '349 )
have used this road for a period somewhat roughly described as 1821.over a hundred years. I understandboth the Muhandiramandthe p~atother witnesses when they say that the road hem been in existence aj.for a long time to mean that it has been in existence as a public road,Bodwn
although this is not veryoleady expressed. The learned Magistrate,however, thought.that he had no evidence before him to show thatthe road was a public toad, and that the proper oonrse for thepublic authority was to act under section 88 of the ThoroughfaresOrdinance.
Our law as to public roads is on a clear footing, and is summarizedin a recent case, Tissera v. Fraserf where my brother De Sampayosays:—“ There are only two ways known to the Boman-Dutohlaw,which is our law, for establishing a public right of way, namely, byproof (1) that the road was constituted by the public authorities;or (2) that the road has been used by the public from time im-memorial.” But it is a recognized principle that from a user bythe public for a considerable time the Court may infer a user fromtime immemorial. I quote the following passage from Maasdorp,vol. IL, p. 199, which has been previously quoted with approval inan unreported decision of this Court: “ By suoh immemorial usageit was laid down in the case just quoted that a road, which was inthe first instance in the position merely of a reciprocal servitudebetween the owners of a number of properties situated in the sameneighbourhood, might be converted into a public right of way infavour of the public, and it was held that where such a user isproved to have continued for thirty years and upwards, the Courtwill, in the absence of any evidence as to when and how it actuallycommenced, be justified in holding that it existed.from time im-memorial.”
The learned Magistrate seems to think that the local authorityshould have proceeded under section 88. Section 88 has a differentpurpose from section 86. The objeot of section 88 is to deal withobstructions already established on a public thoroughfare. Theobjeot of section 86 is to prevent such obstructions grpwing up.
What the section requires is that before a man erects any buildingor wall on a public thoroughfare, he shall give notice to the localauthority. That is to enable the local authority to make inquiries asto whether the erection, which it is proposed to set up, is likely tobe an obstruction to the thoroughfare. This section can only beenforced by inflicting a fine, which is in practice a small fine, on anyperson who fails to give notice.
I quite agree with Mr. Jayawardene that it would be an inappro-priate section to set in motion against an old established obstruction.
But it does not appear that the wall in this case was of that nature.
1 think the section is a very salutary section in the interests of the 1
1 {1919) 21 N. L. B. 241.
( 300 )
i«ai.
Bbtetram
aj.
Hodson v.Mohomadu
public, and that the lav intended that there should be a summaryremedy for their protection.
As 1 do not think that the learned Magistrate had the matter veryfully before him, or that the evidence of the witnesses is as clearand specific as it might be, J think the best plan will be that thecase should go back to the Magistrate to be re-heard, and forevidence to be celled on both sides of the case, in the light of theprinciples I have explained. I make order accordingly.
Sent back.