005-NLR-NLR-V-72-K.-L.-LEWIS-PERERA-and-3-others-Appellants-and-H.-JANE-FERNANDO-and-3-others-.pdf
16
ALLES, J.—Lewis Fnrera v. Jane Fernando
Present: T. S. Fernando, A.C.J., and Alles, J.
K.L. LEWIS. PERERA and 3 others, Appellants, and H. JANEFERNANDO and 3 others, Respondents
S. G. 142J10GG (F)—D. C. Negombo, SSS/L
Servitude—Usus—Claim of right to wash clothes in a neighbouring paddy field—
Maintainability—An essential ingredient of Usus.
Tho defendants, who were dhobioa by occupation, claimed the right to washclothes in a portion of tho paddy field belonging to tho 1st plaintiff. Theybased their claim on somo kind of long standing practice or custom andmaintained that it fell within the ambit of tho personal servitude known to thoKoman-Dutch law as Usus. Tho plaintiff’s unchallenged evidence was that ifclothes were allowed to bo washed in tho field ho would not bo able to use thofield because it would be polluted.
Held, that, although there was a finding of fact in defendants’ favour, that fora considerable period they had washed clothes at the water liolo on tho 1stplaintiff’s field, the defendants’ claim must fail in view of the evidence of thoplaintiff in regard to the damago to his field. Tho claim to tho servitude ofUsus is tho right of using tho property of others for daily needs without detrimentto the substance of the property.
-A.PPEAL from a judgment of the District Court, Negombo.
IF. Jayewardene, Q.C., with S. D- P. Valentine and I. S. dc Silva,for the plaintiffs-appellants.
N". E. Weerasooria, Q.G., with IF. D. GvnaseJcera, for the defendants-respondents.
Cur. adv. vult.
November 29, 1967. Alles, J.—
In this action, the defendants, who arc dhobics by occupation,successfully obtained a declaration from the District Court that theywere, entitled to the right to wash clothes in a portion of the paddy fieldbelonging to the first plaintiff and depicted as Lot A in the plan attachedto the plaint. In spite of the plaintiff’s persistent assertions that thewater hole iii his paddy field was not used by tlie dhobics in theneighbourhood for the purpose of washing clothes, there is a finding offact against the plaintiff and the trial Judge has held that the waterhole in question had been so used by the defendants and their forefathersfor several years beyond the prescriptive period. On 25th October 1964,the plaintiff closed the water hole, planted paddy in the area so covcrc.fiand sought- a declaration from Court in this case that his paddy land wasfree of any right in the defendants to wash their clothes.
ALLES, J.—Lewis Perera v. Jane Fernando
17
The question that has been argued in this appeal is whether the trialJudge came to a correct conclusion when he held that a servitude of thonature claimed by the defendants was one that was recognised in law.Counsel for the defcndants-respondents sought to bring this claim withinthe ambit of the personal servitude known as Usus. According toWalter Pereira, (Laws of Ceylon, p. 507), Usus " consists, in referenceto land, in the occupation of the same without hindrance from the owneror his workmen, and in the right to take fruits, vegetables, flowers, hay,and “wood for daily consumption ” and also includes such rights as theright of grazing on common land, and also the right of fishing in another’swater. On a parity of reasoning, Counsel sought to claim the prescriptiveright to wash clothes on another’s land.
The learned trial Judge in the course of his judgment sought to equatethe right to wash clothes on another’s land to such servitudes recognisedby Voet as “ the right of pressing grapes or threshing com or pulse onanother’s land ”… In doing,so_the_Judge__has fallen into error becausethe kind of servitudes enumerated by Voet are rural praedial servitudes,which normally attach to land and have no analogy to the personalservitude claimed in this case. It is on the basis of a rural praedialservitude that Dalton, J. in Tikiri Appu v. Dingirala 1 recognised theright of a person to thresh his paddy on the threshing floor of another’sland. In Fernando v. Fernando 2, which was a possessory action institutedby members of the dhoby community residing at Polwatte claiminga right to possess the land for the purpose of drying clothes, there wasan alternative claim to a servitude of drying clothes on the land ofanother, but Hutchinson, C.J. held that no such servitude was known tothe Roman Dutch Law. The case of Fernando v. Fernando was considered byShaw, J. in Kau rala v. Kirihamy and another 3. In the latter case, theplaintiff successfully claimed the right of threshing paddy on thethreshing floor of a neighbouring owner as appurtenant to the plaintiff’sfield, and Shaw, J. held that such an easement was one that was recognisedunder the Roman Dutch law. Dealing with the claim of the dhobies inFernando v. Fernando, Shaw, J. stated :
“ This is not a claim for a servitude such as we are dealing with inthe present case. It Avas a claim of right such as is gained in somecases in England by custom for the inhabitants, or a particular classof inhabitants, of a district to make use of another person’s property.All that Fernando *?. Fernando decides is that such an extensionof the law of servitudes as has been adopted in England has not beenadopted under the Roman Dutch Law.”
In the present case too the right that is claimed by the defendants towash their clothes at the water hole on the plaintiff’s paddy field isbased on some kind of long standing practice or custom which thedefendants seek to place on a legal basis by maintaining that it falls
(1934) 36 N. L. R. 267 at 26S.* (1911) 14 N. L. R. 166.
* (1917) 4 O. IF. R. 187.
1
IS
AL.LES, J.—Lewis Pcrera v. Jane Fernando
within the ambit of the personal servitude known to the Roman DutchLaw as Usus. The only recorded instance of an attempt to establishduch a servitude in Ceylon was the unsuccessful effort, of the dhobiesof Polwatte in 1011, and here too they sought to claim'the servitude as. an alternative to their right to a possessory action. Pcrcival Gane inhis translation of Voet in commenting on this servitude states thatthere are only five decided cases in South Africa in which this subjecthas figured. “ That it lias not been more fully used may, so far as theservitude of use is concerned, be explained by the rarity of that servitudein and since Voet’s day.” (vide Translator’s Kote to Book VII, Tit. S).Voet explains the reason for the rarity of this servitude in the followingterms :—
“Meantime at the present day the establishment of use is indeedrarer between private persons than is t hat of usufruct. That is becauseof the difficulties which commonly arise as to the extent to which theusuary ought to use. ami because of the apprehension that fruitswill be pillaged under cover of exercising use.”
(Book VII, Tit. S, See. 5)
Even Maasdorp (Vol. II. 7th Kdn., p. 22p) states that the personal ,servitudes.of Usus and Habitatio are seldom met with in the present day.One can understand the reluctance of jurists to too readily recognisethese servitudes since they arc apt to seriously interfere with the right ofthe private individual ancl today they have invariably been supersededby agreement between the parties usually in legal form.
The Courts should therefore be slow to extend the application of thisservitude to modem conditions particularly as it is likely to adverselyaffect the rights of private citizens and the servitude should only berecognised when there is clear evidence that the essential conditionsnecessary to establish the servitude have been proved.
In the present case, although there is a finding of fact- in the defendants’favour, that for a considerable period they had washed clothes at thewater hole on the plaintiff's field, the defendants’ claim must fail in viewof the evidence of the plaintiff in regard to the damage to his field. Theclaim to the servitude of Usus is the right of using the property of othersfor daily* needs without detriment to the substance of the property. (VoetBook VII, Tit. S_. See. 1.) The plaintiff’s unchallenged evidence in thiscase is that “ if clothes are allowed to be washed in the field he will notbe able to work the fields because the fields will be polluted ”. This isa legitimate fear and one that is not unlikely, having regard to the natureof the work contemplated. Therefore one of the essential elementsnecessary to claim this servitude has not been established by thedefendants.
SIRIMAXE, J.—Thnhir v. Shafi
19
The defendants were not entitled to a declaration that they had theright to wash their clothes on the plaintiffs’ field and the plaintiffs wereentitled to the declaration which they prayed for in their plaint.
We set aside the judgment and decree of the District Court dismissingthe plaintiffs’ action and allow the plaintiffs’ appeal with costs in bothCourts.
T. S. Fernando. A.C.J.—I agree.
Appeal allou:ed.