JAYASEKERA HAMINE, Appellant, and AGIDA HAMINE, Respondent

011-NLR-NLR-V-46-JAYASEKERA-HAMINE-Appellant-and-AGIDA-HAMINE-Respondent.pdf


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DE KRETSEB J.—Jayasekera Hamine and Agida Hamine.
1944Present: de Kretser J.
JAYASEKERA HAMINE, Appellant, and AGIDA HAMINE, Respondent.
65—C. B. Colombo, 87,297.
Servitude of footway—Obstruction to prevent cattle trespass—Footway includes-
right of use bicycle or wheelbarrow—Right to free use of way.
Where the plaintiff claimed the servitude of a footway three feet wideover the defendant’s land and where the defendant pleaded that she wasentitled to put up a contrivance of logs at the entrance to the pathin order to protect her land from cattle.
Held, further, that the servitude of footway (itrn includes the rightto have the obstruction removed.
Held, further, that the servitude of footway (iter) includes the lightto use a bicycle or wheelbarrow.
A PPEAL from a judgment of the Commissioner of Requests, Colombo.
L. A. Rajapakse, K.C. (with him Kingsley Herath), for the plaintiffrappellant.
N. E. Weerasooria, K.C. (with him E. B. Wikremanayake), for thedefendant, respondent.
Cur., adv. vult.
December 8, 1944. de Kketser J.—
The plaintiff brought this action on October 13, 1942, alleging that apath used by her, and on which a wheelbarrow and cycle were used,had been obstructed by the defendant on May 17, 1942, and deviatedat one end to a ditch. The path was shown in an annexed sketch andlater in a-plan- Defendant filed answer stating that plaintiff's right,.if any, was only one of proceeding on foot along the northern boundaryand that the coconut logs of which plaintiff complained had always beenin existence in order to prevent cattle trespass. The logs of which inparticular plaintiff complained were two placed right on the path at eachterminus of it on defendant’s land. Between plaintiff’s and defendant’sland there is a ditch which is crossed by a footbridge made of coconut-logs. Plaintiff’s land is'on a higher elevation. The plan shows a fencealong the western boundary of defendant’s land with a gap in it, each-end of the gap being flanked by a coconut log standing about 3 feet fromthe ground, and a third log forms a triangle with these two. The samecontrivance was erected at the end where the path meets the footbridge.The surveyor gave evidence and stated that the space between thestumps at the gap was 15 inches, on another side of the triangle it was16 inches and on the third 19 inches. The ditch was spanned by 2 logsplaced side by side.
At the trial which extended from March 31 to November 3, the followingissues were raised : —
Is the plaintiff entitled to the use of the way demonstrated in planNo. 3,436 dated March 14, 1943 ?
DE KRKTSER J.—Jayasckcra Hamine and Agida Haminc.
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Is plaintiff entitled to use a wheelbarrow and a bicycle along the
said way?
Prescriptive rights of parties.
Did the defendant on or about May 17, 1942, wrongfully and un-lawfully obstruct the free use of the said path?
Damages.
If issue No. 1 is answered in the affirmative is the plaintiff's right
limited ns set out in paragraph 3 of the answer?
The learned trial Judge inspected the land on July 9, and he made hisorder on November 3, declaring plaintiff entitled to a footway along thetrace marked in the plan but with its end near the road shifted to adistance of one fathom from the drain on the north. He allo.wed thelogs to stand and ordered that n minimum space of 16 inches should beallowed between the logs. He disallowed the right to use a bicycle orwheelbarrow.
He seems to have approached the case from the wrong point of view.It was conceded in the course of the trial that plaintiff was entitledto a footway 3 feet wide and the defence was that the contrivance oflogs was one defendant was entitled to put up in order to protect the landfrom cattle. He has not considered the law nor has he correctly appre-ciated the facts. The plaintiff was entitled, and had been entitled towell over 30 years, to the free use of the footway and the obstructionsnecessarily restricted the right. She was, therefore, entitled to havethem removed. Defendant was entitled to protect the land, but only-in such a way that the plaintiff (and this includes all those visiting orhaving business with her) had the free use of the path at all times. Thequestion was not whether plaintiff could wriggle through the contrivance,but whether she had the full and free use of the path. That she has not,and the obstructions must be removed.
One Andris, a relative of the defendant, is clearly the person responsiblefor the obstruction. He instructed defendant’s lawyers, he gave evidence,and it is clear these obstructions were maliciously erected on a pretext ofpreventing cattle trespass. Mr. Weerasooria was of opinion that cattleare so stupid that while they will walk straight _anead they will notwriggle through a stile. It may be difficult for them to bend aboutas they have long bodies but I fail to see why they should make a bee-linefor the middle post and not start their trespass at one end and walk rightthrough the side of the so-called stile unless they were in very goodcondition. Be that as it may, the plaintiff is entitled to have the obstruc-tion removed. The question of gates is considered in Hall and Kellawayin their book on Servitudes at page 77 and they quote eases decided inSouth Africa where it was held that the question whether an obstructionhindered free passage is purely a question of fact to be decided on thecircumstances of each case. The Court- had ordered the removal of a gatewhich used to be kept locked at times and so prevented the full use ofthe path. Voet deals with the matter in Bk. 8. 3. 4. A gate acrossthe path, which could be opened at all times,, allows the use of the pathand may be permitted (it is usually a matter of agreement) but anobstruction is quite a different thing.
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DE KBETSEE J.—J ay at ekera H amine and Agida Hamine.
As I shall show later, even on the facts the plaintiff is entitled to thepath she claims.
The rights to use a bicycle and a wheelbarrow are not free fromdifficulty. They were modes of conveyance not known to the Roman lawor to the Dutch law and the claim to use them can only be decided onprinciple. The Roman law divided servitudes relating to passagesinto iter (3 or 4 feet wide), actus (usually 8 feet wide) and via (usually12 feet wide), each succeeding right including the previous ones. Thechief principle, if not the only one, seems to have been the extent of theburden on the servient tenement. The up-keep of the passage lay on thedominant owner and everything necessary for the use of the right wasimpliedly given. Accordingly plaintiff would be entitled to erect afootbridge 3 feet wide over the ditch separating her land from the
defendant’s.
;
The" Roman law allowed under the right of iter the right of going overthe passage on foot, on horseback or by being carried over it. Grotius,however (Introduction Bk:2 C-.35 s. 1), divides iter into footway
and bridle-path and seems to make them different servitudes. Hequotes no authority and gives no reason. Voet (8. 3. 1) follows thatdivision and quotes Grotius as his authority, adding that it was accordingto their custom to call one a footpath and the other a bridle-path. Thereis undoubtedly a difference in nomenclature, and to that extent thedivision is justified. One has to infer that because they were distin-guished, therefore, they are different. Voet says “it is to be notedthat according to our custom iter is properly restricted to the right ofgoing on foot and it is different from going on horseback.” The right ofgoing on horseback was recognized but it was no longer treated as iterbut as a special servitude. It was not iter nor was it. actus or via. Theyhad in fact divided up iter. Grotius says the right of bridle-path includedthat of footpath. But why? The space apparently was the samebut possibly a horse may prove restive and so trespass outside the path ordamage any protecting fence.
Actus was intended for driving cattle, even one, and vehicles. If so,is another principle recognized, viz., the possibility of damage to theservient owner? Actus was normally 8 feet vide, indicating the sizeof the vehicle contemplated. The considerations, therefore, seem tohave been in the first instance the 6pace occupied and next the possi-bility of other damage, not to the footpath, but to the remainder of theland. There is a scarcity of authority, whether of -writers or of cases,on the subject. Nathan (Vol. 1 p. 515 et seq.) states the Roman law,mentions the distinction drawn by Grotius and Voet, and adds “ In anycase, there is no difference in their mode of exercise ”. This commentrather suggests that he did not favour the distinction. No case on thepoint seems to have arisen in South Africa. Did the Dutch colonistscarry with them the customary distinction made in Holland, perhapsfor local- reasons, and if they did has it fallen in desuetude? It seemsto me it happened in Africa, and the same thing happened in Ceylon.The original law would then remain in force. I am rather inclined tothink that a right to use a bicycle or to use a wheelbarrow should be
DE KBETSER J.—Jayasekera Hamine and Agida Hamine.
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conceded to a person entitled to a footpath. Neither of them requiresmore space nor can cause damage to the surrounding land.
But the rights can be decided in this case on the evidence, for evenif they be separate rights the evidence indicates that they have beenobtained by prescriptive user. Not only is the evidence for plaintiffmuch better than that called for the defendant, but the latter in fact inparts corroborates the evidence led for the plaintiff and in other parts isdemonstrably false. The defendant’s land is a strip J acre in extent,the greater part of which lies to the south of the path. Defendant’sassertion that the path was along the northern boundary is onlyapproximately correct. On the north is a drain. The locality is liableto floods and the trial Judge had to postpone his inspection once forthis reason. Presumably the portion near the drain would suffer most.Defendant’s land is not separated from the adjoining land on the south,which she now owns and which at one time belonged to her grandmotherand mother. There is a house on that land, which after her mother’sdeath seems to have been rented out in more recent years. Defendantherself lived somewhere else for she speaks of visiting the land once in3 or 4 months. She came to live on that land in recent times, evacuatedduring the Japanese raid in April, 1942, and later returned. Duringher absence Andris looked after the place for her. Plaintiff’s land cameto her from her husband, who died in 1929. He had a brick kiln on theland. The land yields some thousands of coconuts, which are sold andtransported out of it. Beyond the plaintiff’s lands are fields and theowners of these pass over both plaintiff’s and defendant’s land andtransport manure, &c., to their fields. No trouble arose in the time ofthe defendant's grandmother or mother and defendant herself admitsshe passes over plaintiff's land. The trouble arose with Andris, whoseeks to put the blame on plaintiff’s husband’s nephew, Edirisinghe,who came to live with them as a boy, and was about 17 years old whenher husband died. He then got employed in a Colombo firm and usedto go to his work on a bicycle. Andris admits Edirisinghe has beenusing a bicycle to go to his work and alleges that he never rode along thefootpath but kept his bicycle in a house by the road and walked theremainder of the way. Defendant, however, admits having seen Ediri-singhe riding along this path. The CoOrt intervened and questioned herand she said she had seen him walking along the path but not with thebicycle, wheeling it. It is clear that he did ride his bicycle along this pathand had done so since 1929. Plaintiff came to her land after her marriageabout 30 years ago. She alleges that at that time there was no fencealong the western boundary and her husband used carts for transportinghis bricks, &c. Andris says he attended the wedding and the partythen walked along the cart track. He admits that at that time the bridgewas composed of logs, but he says they were put down only temporarily.Now, Andris admits he was looking after one Wijesekera’s land andthat plaintiff took the lease of that land. Plaintiff adds that her husbandhad taken a lease before she did. Plaintiff’s husband died in 1929.She had then only Edirisinghe as a protector. Andris is clearly veryangry with Edirisinghe for he says Edirisinghe came to plaintiff's houseoriginally as a servant and that all the trouble arose after he assorted
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DE KRETSER J.—Jayaeekera Hamine and Agida Hamine.
himself. Even on appeal it was the right to ride a bicycle which wasstrongly contested. Clearly the obstruction was aimed at Edirisinghe.Soon after her husband died in August, 1929, plaintiff had occasion tocomplain to the Headman on January 3, 1930, that Andris had on thenight of the 2nd thrown stones on her roof. The Headman saw the damage,questioned witnesses and Andris and granted a report. Andris pretendsthat he was not questioned. We have not been told what followed onthe report. It has nothing to do with the right of way except by way ofexplaining the source of trouble.
On July 2, 1932, plaintiff complained that Andris had obstructed theroad by putting up two fences. On July 31 she complained that hehad come to the compound drunk and abusive and had later removedthe footbridge of two logs. Andris’ explanation was that it was toowide. Plaintiff seems to have complained to the Government Agentwho alleged he could not interfere as it was not a public road. Plaintiffthen prosecuted Andris on October 5, 1982. Eventually parties agreedto abide by an order made by the Magistrate, without evidence, butafter inspection. The Magistrate inspected on December 29, i.e., nearly6 months after the alleged obstruction. His order was admitted inspite of objection, and in spite of the Magistrate having been summonedas a witness. The Magistrate records that he found a fairly well definedpath. It is this path that the defendant, denied in his answer and put inissue but later conceded. The Magistrate found two strands of wire ateither end but did not think that they could be said to block the path.The charge had been one of wrongful restraint. Plaintiff had allegedthat, a fence along the southern boundary of the path had been shiftedto a parallel line further north. This had nothing to do with the rightof way but w'as apparently an allegation made because it was a fact.The Magistrate saw' no trace of the fence along the south of the path(he could scarcely expect to find any) and he thought, as the posts wereeaten by ants and the wire was embedded in the growing trees, the fencehad always been where he saw it. It does not seem to have struck himto have the roots of the trees examined. It is well known that certaintrees like the suriya can be planted in stumps and transplanted and theywould continue to be green and to grow. It is a common way of makingout a fence to be older .than it really is and the only effective test is anexamination of the roots. However, the question of the fence is im-material. The Magistrate may have been right in considering it notto be a case of wrongful restraint but what we wish to know is the heightof the two strands. On this point he only says they do not block the rightof passage. Presumably they could be stepped over. A bicycle couldeasily be carried over them. Normally the two strands would not be morethan two feet from the ground. The posts at the end of the fence are atpresent only about three feet high. Andris says that men carryingcoconuts in bags jumped over the two strands. And yet he says thesetwo strands were put there to prevent cattle trespassing, and that by-night. Apparently cattle were tethered by day and let loose at night,when they might be stolen!
There is no evidence as to how long these two strands remained there,with people jumping over them. The answer alleged that the cocount
DE KRETSER J.—Jayasekera Hamine and Agida Hamine.
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logs always existed. The Magistrate makes no mention of them. Andriswent the length of saying the logs now there were there for over 10 yearsand he even explained that the bark had rotted. The survey thoughtthem to be a few months old. Defendant said that the logs had takenthe place of others which had rotted during her absence from the land, i.e.,in April, 1942. Plaintiff's evidence of their having been put up after theraid is thus confirmed. In re-examination Andris seems to have appreciated the position better for he alleged that the logs had been replacedduring the 10 years, the last time being 3 years before the trial. This isnot what the defendant says. Now, in 1939, coconut logs had beenplanted. Defendant describes this as an attempt to erect a stije.Plaintiff did not go to a Headman but promptly sent a letter through aProctor, threatening an action if the encroachment were not promptlyremoved. There can be little doubt it was removed for no actionfollowed and it is unlikely that if plaintiff acquiesced in that obstructionshe would later complain of a similar one. The truth seems to be thatthis threat of action frightened the defendant, who was quite awarehow big an extension this was on the two strands of wire. It was quiterealized at the time of filling answer that there was this difference andhence the allegation that the logs always evisted. They could not have,for quite respectable evidence given by the Headman and a SanitaryInspector, against both of whom nothing is urged, shows that there wasno obstruction from 1940, not even wires. Defendant came to liveon the land about this time and perhaps she realized her need too use theplaintiff’s land to go over. Prior to that tenants had lived in the houseand Andris faded out after about 1932. He came in again when defend-ant left owing to the raid. Plaintiff also left, and realizing how ineffectivethe two strands of wire had been he then contrived this new method ofobstruction. Andris admits that produce from defendant’s land had to becarried out and manure brought in. He admitted wheelbarrows andcarts were used but alleged that he opened a gap each time and closed it.He stated that thewestern fencewas 15yearsold. That tits inwith
plaintiff’s evidence.One Endoris,a closerelative of both parties,with
no interests in either side, stated that originally the gap was 7 feet wide.It has now come down to 15 inches- He stated that plaintiff transportedher coconuts alongthis road inwheelbarrows.Andris admittedthat
wheelbarrows werecommonly used inthatlocality. He admitted
that plaintiff rebuilt her house and completed the work 3 or 4 yearsbefore and he alleged that bricks were taken from the brick kiln on theland and that lime had to be brought from outside but said he had notseen it being brought. The wire away from the obstruction is olderand rusty unlike the wire used in narrowing the gap. I
I have said enough to show that the right to use a bicycle has beenacquired by prescriptive user, with a temporary inconvenience in 1932.which affected its use only at the two ends. The right to use a wheel-barrow has also been established. The trial Judge’s inference thatbecause there was an obstructon in 1932, therefore, the bicycle and thewheelbarrow could not have been used thereafter is not a logical con-clusion and is in the teeth of the evidence.
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Peduru Fernando and Mary Fernando.
The decree entered is set aside save in so far as it orders the gap to bemade further to the south. The path should run straight into the roadwithout the deviation now attempted. Decree will be entered for theplaintiff as prayed for, the deviation will be removed. At the trialdamages were agreed on at Rs. 5 “ for the full period ”. That was onMarch 20, 1943, and many months have elapsed since then. A furtherorder should be made for the period which may elapse before the obstruc-tion is removed. I would order damages at Rs. 5 a month starting froma period of 2 weeks after this order is communicated to the parties ortheir Proctors until possession is restored to the plaintiff, who is entitledt.o have a writ enforcing the order of Court and placing her in full posses-sion of her rights. Plaintiff is also entitled to have her costs both in thaCourt below and in this Court.
Appeal allowed.