047-NLR-NLR-V-61-JAYATILLEKE-Appellant-and-AMERASINGHE-Respondent.pdf
BASMATAKE, C.J.—Jv^an'Jehe v..Amerasingfie
193
Present: Basuayaka, C.«L, and. L. ~W, da Silva, A.3,
JAYATTLLBKE, Appellant, and AA3E,a3II GHE, Respondent
S. G. dd (Inti/.) with 803 (Final)—D. G. Colombo, 7,6d2
Servitudes—Common wall—Hisjki to build on it—Adjoining houses—Sewerage—
Common passage and dcorwajs—D'ltg not to obstruct.
Where two adjoining houses are separated by a common wall which doesnot go right up to the roof, the owner of one house is not entitled to build onand into the common wall and cause damage to it without the consent of theowner of the other house.
A row of dwelling houses A, B, C, D, E, F and G- adjoining one anotherbelonged to the same owner and were built in such a way that the lavatorylabourer used a two-foot passage nest to the drain on the East side of the housesto go from house to house through the common doorways whieh were betweenthe houses for the purpose of washing the common drain and removing thedustbins. Premises F and G- were sold by the owner to the plaintiff and thedefendant respectively. There was a common door which gave access from therear of one house to the rear of the other.
Meld, that the right to use the passage and the doorway for the purpose forwhich they had been originally intended and used all along was implicit in th©grant to the plaintiff of the premises F with the common doorway. The de-fendant was therefore not entitled to remove the common door at the rear andobstruct the passage between F and G.
Xa_PPEAIiS from, a judgment of the District Court, Colombo.
Walter Jayawardene, for Defendant-Appellant in S. C. No. 44.
W.D. Gv/nasek&ra, for Plaintiff-Respondent in S. C. No. 44.
H. W. Jayewardene, Q.G., with W. D. Ghmas&lc&ra and N. It. M.Daluwatte, for Plaintiff-Appellant in S. C. No. 808.
K. Herat, with A. Moosajee, for Defendant-Respondent in S. C.No. 808.
October 15, 1957. Basnayake, C.J.—
One Sophia TudugaUa was the owner of a row of dwelling housesadjoining one another depicted in plan No. 78 of 27th April 1951 (Al)made by S. D. Navaratnam, licensed Surveyor, as A, B, C, D, E, IP, & G-.By deed A2 she sold boose marked “ F ” to the plaintiff. That deedgranted to the plamtii? the house “ E ’* together with the right .of wayand passage over the road reservation marked lot H ” described in theschedule " C ” thereto and the road leading from the said lot “ H ” tothe main Paranawadiya Road and together with the right to drain, rainand waste water collected in and flowing from the premises along thedrain lying to the East and South of lot “ G ” reserving the right to thevendor her heirs executors administrators and assigns of tne free passageof water along the drain lying to the East of the said lot ' IP”.
9T-iXI
2J- If. B 19366—1,995 (12/59)
BASNAYAKE, C. J.—Jayatillehe. v. Amerasinghe
194
By deed R2 the defendant purchased the premises marked “ G ” ad-joining the plaintiff’s premises on the southern side and transferred themto Beatrice Meemanage by deed 1)5 and repurchased them by deed D6.
The two houses were separated by a common -wall which did not goright up to the roof. The two houses have each a smoke vent in the roofbuilt in one piece. There was also a common door which gave accessfrom the rear of one house to the rear of the other.
The disputes to "which this action relates concern the common "wall,the smoke vent and the common doorway and passage at the rear. Theplaintiff pleads as a first cause of action that the defendant has wrongfullyand unlawfully and without the plaintiff’s consent interfered with thesmoke vent, and as a second cause of action that the defendant haswrongfully and unlawfully and without the plaintiff’s consent builton and into the common wall and caused damage to it, and as a thirdcause of action that the defendant has wrongfully and unlawfully removedthe common door at the rear and obstructed the passage between “ F ”and “ G The defendant denies that any of the acts complained of bythe plaintiff were unlawful or wrongful. The learned trial Judge hasheld that the plaintiff is not entitled to a right of way 2 feet wide at therear of “ G ” as claimed by him. At the trial the defendant did notdispute the plaintiff’s right to drain rain and waste water along the drainon the East and South of lot “ G”.
We shall first deal with the dispute over the common wall. It is inevidence that the common wall is built of cabook with mortar and plasterof mud and is about nine inches thick. It is a wall which separates theplaintiff’s premises “ F ” from the defendant’s premises “G”. Onthis common wall for a length of about 8 feet tbe defendant has built awall with bricks up to the height of the roof. There is no evidence as towhether this superstructure occupies the whole width of the common wallor less. The defendant has also let in one end of a concrete lintel intothe common wall. It is claimed by the plaintiff that these combinedoperations have caused cracks in the common wall and displaced the.plaster on his side. The plaintiff claims that the cracks are 5—6 feet longand 2—inches wide ; but the defendant does not admit it. Her versionis that the only damage is the displacement of the plaster of an area ofabout 2 square feet.
This being admittedly a party-wall built for the purpose of dividingtenement from tenement, the defendant was not in law entitled to buildon it at all without the plaintiff’s consent (Voet, Bk VIII, Title 2, Sec.. 17—Gane’s translation). Besides, the question of the right of a neighbour tobuild on a party-wall up to tbe middle line where it is not a wall dividingtenement from tenement is dependent on whether the party-wall iscapable of receiving a superstructure (Voet, Bk VIII, Title 2, Sec. 17). TheUutch buildings extant in Ceylon show that the Dutch generally erected; their buildings with much thicker walls than are built today. In applyingthe principles laid down by the Boman-Dutch writers We should make dueallowance for that fact. Even if this wall had not been a dividing wallthe rule allowing building up to the middle line cannot be applied to a
BASNAYAKE, C. J.—Jayatilleke v. Ameraainghe
195
cabook "wall 9 incites thick built -with mud and nearly fifty years old. TheRoman-Dutch remedy against building on a common wall without theconsent of the neighbour is that the unauthorised builder has to takedown the wall built by him {Voet, Bk VHI, Title 2, Sec 17). There isno reason why in the instant case the defendant should not be ordered totake down the superstructure.
The interference with the plaintiff’s smoke vent is the direct resultof the wall being raised. When the defendant takes down the wallshe should also replace that portion of the smoke vent which was overthe common wall because she is not entitled to interfere with it.
I now come to the common door at the rear of ” F ” and “ Gr ” whichthe defendant removed. The rule of Roman-Dutch Law is that whatstands on the boundaries shall be common unless it be proved to besomeone’s property (Van Leeuwen, Censura Forensis, Bk II, ChapterXIV, Sec. 16). The defendant has not proved that the door is her pro-perty. She has therefore no right to remove it and must restore it. Nextarises the question whether once the door is restored the plaintiff is enti-tled to use the doorway for the purpose of removing his dustbin throughit and admitting his lavatory labourer for the purpose of going overto the defendant’s part of the drain in order to remove any matter whichis clogging the drain. We think that the plaintiff is entitled to do so.The evidence is that from the time these premises were built the lavatorylabourer used the two-foot passage next to the drain on the East side ofthe houses to go from house to house through the common doorwayswhich are between the houses for the purpose of washing the commondrain and removing the dustbins. This right to use the passage and thedoorway for the purpose for which they had been originally intendedand used all along is implicit in the grant to the plaintiff of the premisesf! F ” with the common doorway. The defendant is therefore notentitled to block the passage by building on it.
We accordingly direct that the defendant should within thirty daysof the record reaching the District Court (a) remove the superstructureon the common wall, (6) restore the portion of the smoke vent over thecommon wall, and (c) remove all structures which she has erected inderogation of the plaintiff’s right to use the two-foot passage through thecommon doorway. If within that period the defendant does not carryout the alterations to the satisfaction of the court, the plaintiff will beentitled to apply to the District Court for such orders as are necessary tocompel the defendant to give effect to this order.
We do not propose to make any order for damages but the order fordamages made by the learned trial Judge in a sum of Rs. 100 will stand.
The judgment of the learned trial Judge is set aside and the appealis allowed with costs. The cross-objections of the defendant-respondentare dismissed without costs.
Appeal No. 44 is dismissed with costs,
L. W. de Silva, A.J.—I agree.
Appeal No. 44 dismissed.
Appeal No. SGS cdloised.