Singaram v. Shamnugam
Present: H. N. 6. Fernando, J.SINGARAM et ah, Appellants, and M. SHANMUGAM et al.,
S.G. 128—G. R. Point Pedro, 1400
Servitudes—Wetl—Sight to draw wester—Sight of aquae ductus—Prescription,
In an action, instituted by the plaintiffs for a declaration that they wereentitled to a share of the well situated in the defendants’ land and to a right ofway and watercourse from the well to the land of the plaintiffs—
Held, that, although a right to draw water torn a well and to a right of wayfor the purposes of such user can be acquired by prescription, the law does notcontemplate that a share in a well can be acquired by prescription.
Held further, that a right to take water along a watercourse on the servientland can be established only upon a special grant or by clear evidence of pres-criptive user.
"APPEAL from a judgment of the Court of Requests, Point Pedro.G. Ranganathan, with S. Rajarainam, for the defend ants-app ellants.3. T. K. Mdhadevan, for the plaintiffs-respondents.
Gur, adv. vu It.
H. oST. G. FERNANDO, J.—Singararn, v. Shawnwgam521
October 28, 1958. H. IT. G. 2'eenando, J.—
Decree has been entered in this case declaring the plaintiffs to beentitled to a share of the well situated in the defendants’ land and to a-right of way and watercourse from the well to the land of the plaintiffs.
The learned Commissioner found that the plaintiffs had establishedtitle to the share of the well and to the right of way and watercourse, i.e.presumably documentary title. There is no deed establishing that any ofthese rights had been acquired by the plaintiffs or their predecessorseither by purchase or grant from the owner of the servient tenement.But there has been one deed which has been- misconstrued as anacknowledgment of such a title. The dominant tenement was sold to oneSinnapillai by PI of 1916, which purported to convey to her a share ofthe well, and by P2 of 11th September 1925 Sinnapillai in turn conveyedthe land to one of the plaintiffs’ predecessors, purporting also to transfertherewith “ the proportionate share of the well …. and right ofway and watercourse This same Sinnapillai had become in 1915 theowner of the servient tenement, and, if she had been its owner at the timeof the execution of P2, then the latter conveyance would have operated,as a grant of the aforesaid rights by the owner of the servient tenement.But in fact Sinnapillai had ceased to be the owner two days before the-execution of P2, for she had on 9th September 1925 sold the servienttenement by the document DIO. The finding for the plaintiffs on thequestion of title cannot therefore be supported.
The substantial question was therefore one of prescription, on whichalso the learned Commissioner found for the plaintiffs. I do not thinkthe law contemplates that a share in a well can be acquired by pres-cription, and it would be more appropriate to hold that the plaintiffs-have by user acquired a servitude to the use of the well, i.e. to drawwater therefrom, and to a right of way for the purposes of such user.There is ample evidence to support such a finding. But the position isdifferent with regard to the watercourse. The learned Commissionererred in assuming that “ for the purposes of drawing water from a well, awatercourse is essential ”. Such an assumption might be correct inthe case of a conveyance of a share in a well, but, short of that, a rightto take water along a watercourse on the servient land can'be establishedonly upon a special grant or by evidence of prescriptive user. But forthe assumption to which I have referred the learned Commissioner couldnot, on the scanty evidence of user and of the existence of an allegedchannel, have found that the plaintiffs had acquired a prescriptive rightof aquae ductus. The claim to this servitude should therefore have beenrejected.
In the result the decree will be amended so as to declare the plaintiffs,as owners of Lots 1, 2, 3 and 4 in Plan bio. 442 of 3rd March 1955,entitled only to the right to draw water from the well and to a right ofway for that purpose. As the appellants have succeeded only on a minorpoint, I would make no order as to the costs of appeal. The decree fordamages and costs in the lower Court will stand.
K. SINGARAM et al , Appellants, and M. SHANMUGAM et al , Resppondent