070-NLR-NLR-V-15-KARUNARATNE-V.-GABRIEL-APPUHAMY-et-al.pdf
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Present : LasceUes C J.
KARUXARATXE v. GABRIEL APPUHAAIY et al.105—C. B. Negombo, 18,522.
Right of way—Acquisition of right- by prescription—Right of owner ofservient tenement to alter the situation of the servitude—How farprinciples of the Roman-Dutch law as to right of owner of dominantor servient tenement to change situation apply to Ceylon where theservitude has been acquired by prescription.
" In the system of law which prevails in Ceylon rights of way areai'quiretl by user under the Prescription Ordinance, and the courseor track over which the right is acquired is necessarily strictlydefined."
Qunrr.—Whether the principles of the Roman-Dutch law statedin Voet 6, 3, 8, as to the right of the owner of the dominant orservient tenement to change the situation of the servitude, areapplicable to * case where the right to pass over a defined track hasbeen acqui' <i by prescription?
fJlHL v :ts appear clearly from the judgment.
Bawa, K.C., for the appellants.
H. A. Jayewardene, for the respondent.
Cur. adv. vult.
June 5, 1912. Lascelles C-J.—
The plaintiff in this case is the owner of an allotment of land calledKongahawatta, at Kochchikade, on which are situated certainbuildings used for the purposes of a fish market, vegetable market,and boutiques. By his statement, of claim the plaintiff alleged thathe, his servants, and others resorting to the markets on the plaintiff’sland were entitled to the use of a footpath on the trace marked DDDon the plan X over the land of the defendants. He further allege^that on December 23, 1910, the defendants unlawfully built a cadjanshed across the right of way on their land and so obstructed the freeuse of the footpath. The plaintiff claimed a declaration that he wasentitled to the use of the right of way marked D D D on the plan X,and that the defendants should be ordered to remove the obstructioncaused by the erection of the cadjan shed. The answer of the defend-ants consists only in a denial of all the allegations in the plaint.
. At the hearing of the case, and before the issues were fixed, adiscussion took place, at which it was admitted that the plaintiff wasentitled' to a right of footway over the defendant's land. Apparentlythe defendants contended that they were entitled to allow the right
9J. Jf. A 09413 (8/50)
1912.
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1912. of footway in a situation more convenient to themselves than that
_ claimed by the plaintiff. The learned Commissioner of Bequests
C.jr. expressed the opinion that even a slight deviation from the right ofKartmaraine wa7 ^ acquiesced in by the plaintiff would involve the sacrifice of his.v. Gabriel prescriptive right altogether, and held that the plaintiff’s right ofAppuhamy way over the defendant’s land is inseparable from the particularpath by the use of which that right had been set up and acquired.No issue was framed with regard to the defendant’s right to claima deviation from the footway, and the case went to trial on thefollowing issues: —
;{1) Has plaintiff used the path D D D, in plan 99 E filed, forten years or more?
;(2) Did defendants on December 23, 1910, obstruct that pathby building a cadjan shed across it?
'Damages?
On these issues the learned Commissioner found for the plaintiff,and gave judgment in terms of the plaint. On the appeal it was notcontended that the judgment was wrong on the issues on which thecase went to trial. This being so, it is impossible for me to interferewith the judgment. If the defendants had desired to raise thequestion of their rights to alter the course of the right of footwayacross their land, they should have requested the Commissioner toframe an issue on this point, and if the Commissioner had refusedto do so they should have appealed. In view of the discussion which•took place at the argument on appeal, as to the rights of the defend-ants to claim that the plaintiff’s servitude sBould be exercised alonga route which would be more convenient to the defendants than theline over which the defendants had acquired a prescriptive right, 1•do not wish to dispose of the case without pointing out the difficultieswhich appear to me to stand in the way of the defendant’s contention.
The appellant’s contention is based on the authorities collected inVoet 8, S, 8■ I understand the general effect of this text to be asfollows:—Where a right of way through a property is granted' orleft by will in general terms and without assigning any definite placefor its use, the selection of the place rests with the owner of thedominant tenement, the principle being that, as no particularlocality is designated, the entirety of the tenement is subject to theright. But the right of selection must be exercised “ civiliten,”hence it follows that a right of way could not be claimed througha dwelling-house or through a vineyard, where an equally goodselection could have been made elsewhere with less damage to theservient tenement. Although the whole tenement is theoreticallysubject to the servitude, no particular portion being allocated forthe purpose, still only those parts are considered to be subject to the■servitude which when the servitude was granted were free frombuildings and trees. But the dominant owner’s right or selection
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does not preclude the owner of the servient tenement from changing 1M&the situation of the servitude and assigning a different situation tfrom that originally specified by grant or agreement, if this can beC.J.
done without damage to the owner of the dominant tenement. Thismi^,,
appears to be the substance of the text in Voet. These principles v. GaMieiare readily applicable to a system of law under which real servitude Appultamjtwere created only by agreement between the parties, and theyappear to be limited to the case where the right of way was grantedin general terms without specifying the exact course which it shouldfollow. In the system of law which prevails in Ceylon rights of wayare acquired by user under the Prescription Ordinance, and thecourse or track over which the right is acquired is necessarily strictlydefined. How far the principles of the Roman-Dutch law to which-I have referred are applicable to a case where the right to pass over adefined track has been acquired by prescription is a question of some-difficulty; but so far as the present appeal is concerned, the-questions are purely academic.
The judgment of the Commissioner, on which the case went to*trial is dearly correct, and the appeal must be dismissed with costs.
Appeal di8mi»»ed.