Right of way—Prescription—Evidence of user of a defined track necessary.
Obiter, the evidence to establish a prescriptive servitude otway must be precise and definite. Xt mutt relate to a definedtrack, and must not consist of proof of mere straying across an openland at any point which is at the moment most convenient.
fjjHE facts appear from the judgment.
A. St. V. Jayewardene, for the plaintiff, appellant.—The Commis-sioner has held that plaintiffs had for over ten years passed overdefendant’s land; the plaintiffs have therefore acquired a right ofway over defendant’s land. (Voet (3, 3, 8) states that even where noparticular path has been used, the owner of the servitude is entitledto claim a right of way over the servient tenement.- It was held inCosta v. Livera1 that the essence of a servitude is a right of way overthe servient tenement, and that the particular route affects only themanner of its exercise.
Bartholomeusz, for the first defendant, respondent.—The plaintiffs’claim as stated in the plaint isi for a defined .track. In C. R. Malla-kam, 16,060, Wendt J. held that the evidence to establish a pre-scriptive servitude of right of way must be precise and'definite, andthat mere proof of straying across an open land is not sufficient.The passage in Voet (8, 3, 8) has been explained in Karunaralne v.Gabriel Appvhamy ? as referring to servitudes created by agree-ment, and not to those acquired by prescription. Counsel also cited3 Balasingham 239.
Balasingham, for second defendant, respondent.
Jayewardene, in reply.
Cur. adv. vult.
October 31, 1913. De Sampayo A.J.—
The plaintiff, who is the owner of the land marked A in the planfiled in the record, claims a right of way to a certain lane over theland marked B and C which belongs to the defendants. The rightof way is claimed along a specific route by the side of the easternboundary of the land B and C. The Commissioner, for reasonswhich he states in his judgment and which appear to me to bp
i {1912) 16 N. L. R. 26.* (1911) IS N. L. R. 257.
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1918. sound, has held! that the plaintiff has no right ,to the use of thejyu haotax™ particular way Claimed by him, and that his right of access to theA.J., lane is by the lake shore to the east of the land IT and C. TheKand^iah v. Commissioner, however, stated in the course of his judgment thatSeenitamby “ the evidence led for plaintiff does not establish a prescriptivetitle; it proves a long-established custom of passing over the landwhich now* belongs to defendants, but it is not. proved that thiswas a possession based on any claim of adverse title. ” This passageis construed by counsel for the plaintiff-appellant as a finding thatthe plaintiff had a right of way generally over the defendants' land,though not by any definite route, and it is contended that in suchcircumstances the plaintiff is by law entitled to select any routehe may please. In the first place, the above passage in the judgmentdoes not bear the construction put upon it—in fact, it expresslynegatives the existence of any right at all. The Commissioner, inreferring to a custom, obviously alludes to certain evidence givenat the trial to the effect that, before the defendants* land was enclosedwith a fence and when it was an uncultivated open ground, peoplegenerally used to walk' over it in every direction without anyhindrance. The Commissioner does not mean to hold that' thesepeople had a legal right of way over the defendants* land, nor doesthe evidence ’justify any such conclusion. Moreover, 'the plaintiffdid not claim a general right of way and seek in this action toexercise his right of selection. In the plaint he claimed a right ofway by prescriptive user over a particular track, and the issuetried was as to the plaintiffs right to the use of that partioulartrack. This being so, it is hardly necessary to examine at lengththe authorities cited in support of the contention. The chiefauthority relied on is Voet 5, 5, 8, but I do not think that it isapplicable to such a case as this. There Voet refers to a servitudeof way granted ‘ or bequeathed indefinitely without any specificationof the track over which it is to be exercised, and says, that in sucha case the owner of the dominant tenement can make his ownselection, the reason stated being that, where no part has beenpointed out by the person creating the servitude, the whole land,and every particle of the soil is supposed to be subject to the burdenof servitude. But this presupposes that the right of servitudealready exists, and all .that remains is to determine the particularmanner of exercising it. The reasoning is not applicable to a casewhere the very question is as to the existence of a right of servitudeand where one is sought to be established by prescription, inasmuchas ex natura rex possession or user for purposes of prescription mustbe in respect of* a particular part or track of the land. The samepassage of Voet was cited in Earunaratne v. Gabriel Appuhamy,1and there Lascelles C.J. observed : “ These principles are readilyapplicable to a system of law under which real servitudes were
1 {2912) 15 N. L. R. 257.
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created only by agreement between .the parties, and they appear tobe limited to the case where the right of way was granted in generalterms without specifying the exact course which it should follow.In the system of law which prevails in Ceylon rights of way sureacquired by user under the Prescription Ordinance, and the courseor track over which the right is. acquired is necessarily strictlylimited. ” I may also refer to G.' E. Mallakam, 16,080,1 in whichWendt J. laid down that !‘ the evidence to establish a prescriptiveservitude of way must be precise and definite. It must relate -toa defined track, and must not consist of. proof of mere stayingacross an open land at any point which is at the m'oment mostconvenient. ” The views expressed by these learned Judgessupport the opinion I have formed on the point.
X think the Commissioner of Bequests rightly held that theplaintiff failed to establish a right of way over the "defendants' landas nlaimad by him. The appeal is dismissed with costs.
Appeal dismissed.
Dh SampayoA.J.
Kandaiah «,Seenitamby