M. B. A. C. MARASINGHE and others, Appellants, and T. K. A. SAMARASINGHE, Resp

082-NLR-NLR-V-73-M.-B.-A.-C.-MARASINGHE-and-others-Appellants-and-T.-K.-A.-SAMARASINGHE-Resp.pdf


II. N. O. FERN’ANXO, C. J.—Maraeinghe o. Samararinghe
433
1970 Present : H. N. G. Fernando, C.J., Alles, J., and de Kretser, J.
M. B. A. C. MARASINGHE and others, Appellants, and T. K. A.
SAMARASINGHE, Respondent
S. C. 501/66 (F)—D. C. Gampaha, 10451}RW
Servitude—Right of u-ay—Alteration of route by owner ojservient tenement—Permisei-bility.
Held by Ali.es and de Kretser, JJ. (Fernando, C.J., dissenting), the*when a sorvitudo of a right of wny has boen acquired by prescription, the ownerof the sorviont tenement is entitlod to offer a deviation of the route or trackalong which the right was acquired, provided that the proposed alternativeroute is equally convenient and serviceable to tho owner of the dominanttenement.
Madanayake v. Thimotheua (3 C. Law Roc. 1>2), Fernando v. Fernando(31 N. L. R. 126) and Hendrick v. Sa metis (41 N. L. R. 519) overruled.
jApPEAL from a judgment of the District Court, Gampaha.
11. TV. Jayeuardene, Q.C., with L. C. Seneviralne and B. Eliyalamby,for the defendants-appellants.
C. Ranganalhan, Q.C., with HI. Hussein, for the plaintiff-respondent.
Cur. adv. vult.
October 3, 1970. H. N. G. Fernaxdo, C.J.—
The only question which arises in this appeal is whether, when aservitude of a right of way across a land has been acquired by prescription,the owner of the servient tenement is entitled to deviate the route or trackalong which the right was acquired. In the present case, the defendantsand their predecessors in title had acquired a servitude on a route whichran more or less across the centre of the plaintiff’s land. The order of theDistrict Judge, against which the defendants have appealed, is that theplaintiff is entitled to substitute a route along part of the boundary of theland, on the ground that this alternative route is equally practicable andconvenient for the defendants.
An early case in which the question which arose in this appeal wasconsidered is that of Karunaralne v. Gabriel Appuhamy ’. The questionwas not however decided in that ease, because it had not been raised inthe lower Court. 1
1 (1912) IS N. £. R. 257.
LXXITT—19 & 20
J*J 10970 2245 112/701
434
H. N. G. F3RMAXDD, C.J.—Morasinjhe v. Ssmarasinglia
The same question arose again in Madanayake v. Thimotheu-s in whichSchneider J. examined the text of Voet S.3.8, which is here set out fromGane's translation (Vo!. 2, p. 471,2) :—
“It is common to foot-passage, driving and right'of way, nay towater-leading and to the drawing of water also that, when such aservitude over a.farm has been granted in general terms, or has beenso bequeathed by a testator, and no part of the farm has been allottedover which it is to be exercised, a choice of such part is enjoj’ed by theowner of the dominant tenement-. ’’
“ But in the second place also it is settled that he must thereafterpass or. drive only by the way which he at first laid out, and that heno longer has the power to vary that way, so that the other parts of thefarm.beside that over which the servitude has been exercised are forthe future deemed to bo free, unless liberty to varj' was also granted bycovenant. ”• . ' ' ‘
“ These things however do not prevent the owner of the servient.. tenement from having liberty to vary and to allot for the foot-passage,.driving or right of way a space different from that which was originallymarked out by choice or by covenant, provided that no prejudice is.created thereby to the owner of the dominant tenement. ”
Schneider J. then made the following observations :—
“.These passages put it beyond any manner of doubt that the writeris speaking of only those servitudes which are created in a particularway. n .mely where the right is-granted in general terms without mentionof the route over which it is to be exercised. From the very terms ofits creation the right is in theory exercisable over every part of theland.' It is therefore necessary for principles to be laid down uponwhich the Jirecise route should be determined, and Voet indicates whatthose principles are. ” I
I am at a loss-to conceive how those principles or any one of themcan be made applicable to a servitude of way acquired by user for thenecessary period of prescription over a definite route. It is not a. rightwhich can be said to extend over the whole of the servient tenement.
• It is acquired without the consent of the owner of the servient tenementand by possession adversely to him. The reason given by Voet why ’; the owner of the dominant tenement has the election of the route, andthe owner of the servient the right to alter the route will hot apply, in .
the case of the acquisition of the right by prescription. ”
-Ai ' '
* 11921) 3 O. Law Recorder 82.
H. X. G. FERNANDO, C.J.—Maraainghc v. Samaraainghe
433
Schneider J. also-quoted the views of Lascclles C.J. in Karunaralne v.Gabriel Appuhamy,1 which show a similar understanding that theprinciples stated in Voct are not applicable in the ease of a servitudeacquired by p-cscription.
In Fernando v. Fernando* a Bench of two Judges adopted the reasoningof Schneider J. and held that the owner of a servient tenement has noright to deviate the route of a right of way which had been acquiredby prescription.
Despite the full and able arguments which were submitted to us atthe hearing of this appeal, Counsel had not been able to discover anystatement in a Commentary on the Roman Dutch Law, other than thestatement in Voct, regarding the diversion of the route of a right of way.Counsel appearing for the plaintiff has very properly conceded that thestatement in Voct does not express the proposition that a deviation maybe made in the circumstances of the present case. But Counsel reliedon certain other decisions of our Courts, as well as a decision of theAppellate Division of South Africa, in support of this alleged right ofdeviation.
In Costa v. Liter a 3 the plaintiff claimed a right of way along the line
marked dd, shown in the plan filed of record. The defendant
admitted that the plaintiff had acquired a right of way by prescriptionalong that line ; but his case was that the parties had by mutual consent
substituted a new route shown as aa fer the former route, and
that the plaint iff had lost the servitude of way over the 1 ne dd
by abandonment or release. In the District Court, without evidencebut upon a mere admission, it was decided that the plaintiff had usedthe new road. In appeal dc Sampayo J. thought that without moreevidence it cannot be held that there had been abandonment of theservitude along the old line. He thereafter referred to the question whetherthe requirement of a Notarial Instrument for an agreement affectingland may create difficulty in the way of the substitution of a new routefor that over which a right of way had originally been acquired byprescription. On this point, he approved the proposition that, where inthe case of a servitude acquired by prescription there is a deviation ofthe route, “ the benefit of the old possession would attach to the newroute ”. In this connection de Sampayo J. stated that “after all, theessence of the servitude is the right of way over the servient tenementand the particular route affects only the manner of its exercise. Whatis prescribed for by long user is not the ground over which the way lies,but the incorporeal right of servitude”. The judgment in appealultimately left it open to the lower Court to find upon evidence whetheror not there had been an agreed deviation from the old line to thenew.
* {19 12) 15 N. L. It. 2o.• {1929) 31 A*, i. It. 126.
* {1912) C N. L. It. 26.
•136H. y. G. FERXAXDO, C.J.—Marasinghc v. Samarasinght
It will be seen that the question now before us did not in fact arisefor decision in the case of Cosla v. Livera. But Counsel for the plaintiffhas relied upon the dictum which I have cited above from that judgmentfor his submission that in every case, except one in which a right of wayhas been defined in a grant, there are mutual rights and obligations ofthe parties with respect to the route along which the right it exercised.According to this submission the rule stated by Voet, that in a case of agrant simpliciter of a right of way without specification of a route, theservient owner may deviate in a convenient manner the route chosenby the dominant owner, is a rule applicable not only in the case of6uch a grant, but is equally applicable in a case where a prescriptiveright has been acquired by long user of a specific route.
It seems to me that the dictum of de Sampayo J. must be read in thecontext in which it occurs. That distinguished Judge was considering aproposition that a prescriptive right of way is not lost if, after it has beenacquired, there is an oral agreement to deviate the original route. Hethought that proposition to be sound because the essence of the servitudeis a right over the servient tenement, which right remains even though 'the manner of its exercise is altered by an agreement to deviate the route.Whatever was said in the judgment about the effect of an agreement todeviate from the original route, I cannot think that de Sampaj'o J. hadin contemplation any possibility of a unilateral deviation by a servientowner. .
Indeed in Kandaiah v. Seeniiamby1 de Sampayo J. had occasion to referto the passage in Voet which w;as considered by Lascelles C.J. andSchneider J. in the two earlier cases which I have cited, and he approvedthe following statement of Lascelles C.J. in Karunaratne v. GabrielAppuhamy 2 :—
" These principles {stated by Voet) appear to be limited to the casewhere the right of w ay was granted in general terms without specify ingthe exact course which it should follow. In the system of law whichprevails in Ceylon rights of way are acquired by user under thePrescription Ordinance, and the course or track over which the rightis acquired is necessarily strictly limited.”
In Dias v. Fernando3 there arose for decision the precise matterwhich de Sampayo J. had earlier considered, namely, whether whenthere is an agreed deviation of the route of a right of way acquired byprescription, the prescriptive right of servitude is thereby lost. Koch J.here followed the opinion of de Sampayo J. and held firstly that theprescriptive right was not lost by deviation of the route, and secondlythat a notarial instrument was not necessary for the Agreement to deviate.
In effect the basis for that decision i3 that once the prescriptive righthas been established over a servient tenement it is not lost by reason of a
’ * (3911) 17 N. L. R. 29.z* (1912)1S N. L. R. 237. _
• (J93S) 37 N. L. R. 304.
H. X. O. FERN’AN'DO, C.J.—Maraainghe v. Samaraainghc<JI
change in the manner of its exercise. Socrtsz J. agreed, but with muchreluctance. The same principle that a servitude acquired by prescriptionis not lost because of a mere agreed deviation was recognised in Sinna-thamby v. Kathirgamu *.
It will be seen that none of the decisions to which Counsel for theplaintiff referred dealt with a claim that a servient owner has a right todeviate the right of a servitude acquired by prescription, so that none ofthem supports Counsel’s submission that such a right is recognised bysome principle governing the law relating to servitudes.
The reason why (as Voct states) a servient owner has a right to make areasonable deviation from that chosen by the dominant owner is in myopinion quite a simple one. When a grant simpliciler is made and thereis no definition by the grantor of the line for the exercise of the rightgranted, there has necessarily to be some determination of the preciseline ; because the matter is left open in the grant, both parties continueafter the grant- is made, to have rights concerning this determination ;the grantee to elect a line and the grantor to offer a convenient alternative.As Voet pointed out, there is no scope for any such determination in thecase of a defined grant, because the line for the exercise of the right hasalready been defined in the grant. In my opinion a servitude acquiredby prescription is in this respect indistinguishable from one acquired by aspecific grant.
In both these cases the line becomes established simultaneously withthe servitude. At the time when a servitude becomes established byprescriptive user the line of the servitude is equally established by thatuser, and a servient owner has no right to participate in the determinationof the line, any more than he has such a right of determination in a casewhere the determination has already been made in his own grant. Inmy view therefore a servient owner has in the case of a grant simplicilera right to determine the line of this exercise of the servitude, only becausethere has not been an earlier final determination of the line. But in thecase both of a defined grant, and of a servitude acquired by prescription,there is such a final determination and therefore no scope for anydeviation, save by mutual agreement.
Counsel for the plaintiff relied heavily on the judgment on Rubidge v.McCabe and Sons and others-. The plaintiffs had admittedly a right ofway by prescription over the defendant’s farm along the road which hadbeen used since 1SS7, In 1904’ the defendant, without notice to theplaintiffs, constructed a weir in the vicinity of the. place where the roadcrossed a river. After some negotiations between the parties, it wasagreed that the plaintiffs would accept another road crossing the riverat a different point, and this alternative road was provided and usedbetween 1904 and 1911. At that stage the defendant built another weir
» (1046) 47 X. L. R. 354.
• 1913 A. D. 433.
439H. N. G. FERNANDO, C.J.-—Sfdfaainjhe v. Samarastnyhe *■-
across the river near the new crossing, and it was common ground thatthis construction rendexed it impracticable to cross.the road which theplaintiffs had used for seven years. The defendant then offered'yetanother crossing of the river at a different point, and the plaintiffs agreedto accept this on certain conditions. Ultimately the dispute came to theCourts, which ordered that upon a money payment by the defendant tothe plaintiffs, the defendant shall be relieved of the duty to construct acrossing, except a bridge which he must construct and maintain. In thealternative the defendant could provide a new causeway at a pointspecified in the order which the plaintiffs must use if the residentMagistrate was satisfied that it is safe and practicable..
This statement of the facts in the South African case makes it evidentthat the Court was concerned with circumstances in which the owner of aservitude acquired by prescription had at various times negotiated andagreed with the servient owner for deviations from the original line of theservitude; in fact during the period 1904 to 1911, the dominant owner ,had actually used a new line in substitution for the original line of theservitude, and the dispute which was brought to the Courts concernedsome further negotiations for yet another deviation. Jn this context, Imust with great respect express my inability to understand why the Courtthought fit to make general observations to the following effect:—
“ As owners of the dominant tenements the owners must exercisetheir rights in the manner least oppressive to the defendant and asowner of the servient tenement-the defendant has the right, after duenotice to the plaintiffs, to divert the course of the road provided—andthis is a most important proviso—he does not by such diversionmake the use of the road less convenient or more expensive to theplaintiffs.”
“ The evidence, in my opinion, docs not. establish that there was apublic road over the farm, but rather that a servitude of right of wayexisted, the plaintiffs’ farms being the dominant and the defendant’sfarm the servient tenements. And if that be the legal position it wascompetent to the defendant upon giving due notice to the plaintiffs todivex-t the course of such road, provided that the new road was equallypracticable and convenient to them. ”
The passage from Voet which I have already reproduced above was citedduring the course of the argument, but apart from the statements such asthose now set out, there is no reference whatsoever in the judgments toany text which supports those statements of the law. In Ceylon therehave been the three judgments of 1912, 1921 and 1935, which purport toapply the Roman Dutch Law, and which clearly declare that a servientowner has no right to deviate the line of a servitude acquired by prescrip-tion.' -In the absence of any contrary authority either in the Roman
* ALLES„ J.—Alarasinghe v. Samerasiughe
Dutch texts or in any decisions of our Courts, I ain not persuaded of anyreason why we should at this stage disagree with Ceylon uccisions whichare directly in point.
• For these reasons I am unable to agree with my brothers that theprevious decisions of this Court on the question involved should beoverruled. In my opinion the plaintiff’s action sliould be dismissed.
Alles, J.—
Th is appeal raises an important question of law on which, unfortunately,the Judges before whom it was argued by eminent Counsel have not beenable to reach unanimity. The learned Chief Justice and 1113’ brotherDe Kretser J., whose judgments I have had the advantage of readingbefore preparing m3' own, have adduced reasons for their respective viewson a question which is undoubtedly one of dinicult3' and acknowledgedto be such b3' two previous Chief Justices of the Supreme Court.
The plaintiff, the owner of the servient tenement, instituted thisaction against the defendants ns owners of the dominant tenements fora declaration that the defendants, who it is admitted were entitled to aright of wa3' across the plaintiff’s land b3’ right of prescriptive user,were not entitled to the exercise of such a right. The plaintiff wasprepared to grant a footway along the southern boundary of his land as analternative to the existing route and the learned District Judge held,after an inspection of the land, that it was “fair, just nnd equitable topermit the plaintiff to offer the alternative track to the defendants whichwill not cause an3' inconvenience or hardship or prejudice or an3' detrimentto the defendants but will enable the plaintiff to develop his land whichlies on cither side of the original footpath.” In the light of this eminentlyreasonable view of the facts should t lie law be so intractable as to preventthe plaintiff from obtaining relief in a ease in which the Court has heldthat he is justl3' entitled to the relief he claims ?
The question of law which arises for determinatidn in this appeal iswhether, when a servitude has been acquired b3' prescription, the ownerof the servient tenement is entitled to offer a deviation of the route ortrack from the one over which the right has been acquired, provided theformer route is as convenient and serviceable to the owner of thedominant tenement as the latter.
Before examining the decisions of the Cclon courts on this question,which have sought to interpret the Roman Dutch Law, I propose toexamine that law and consider such decisions of the South African Courtswhich might be of assistance. It is not disputed that the law has been
.440 _ALLES, J.—Marasinghe v. Samorosinghe
laid down in the-text of Voet at 8-3-81 and I have set down below thorelevant law as indicated by Voet and marked it as A, B, C, D and E forthe purpose of ready reference.
It is common to foot-passage, driving and right of way …. that,
when such a servitude has been granted in general terms, or hasbeen bequealht d by a testator, and no part of the farm has beenallotted over which it is to be exercised, a choice of such partis enjoyed by the owner of the dominant tenement.
The reason for such a right of choice is that, where no part has
been selected, the whole farm and every clod of it arc deemed tobe subject to the servitude
Nevertheless tho power of choice belongs to the owner of the
dominant tenement subject to his being obliged to behavecivilly in making the choice
But in the second place also it is settled that he must thereafter
pass or drive only by the way which he at first laid out, andthat ho no longer has the power to vary that way, so that theother parts of the farm beside that over which the servitude hasbeen exercised, are for the future deemed to be free, unlessliberty to vary was also granted by covenant.
These things however do not prevent the owner of the servient tenement
from having liberty to vary and to allot for the foot-passage, drivingor right of way a space different from that which was originally' marked out by choice or by covenant, provided that no prejudiceis created thereby to the owner of the dominant tenement.
In passage “ A ” when Voet refers to a servitude granted in general termsor bequeathed by a testator, he is clearly contemj 1 iting the creation of aservitude simpliciler. It therefore became necessary to lay down certainrules whereby the right of the dominant owner to the exercise of theservitude had to be regulated and this had to be done in a manner whichwould cause the least possible burden on the owner of the servienttenement. The passages marked “ C ” and “ D ” seek to lay downthose rules and bind the dominant owner to hi3 choice which must beexercised by him civililer. The resulting position is that once such achoice is made the rest of the land is free from the servitude. A furtherconsequence of the choice being made by the dominant owner, or byagreement between the parties as to the route chosen is, that there cannotbe a variation by the servient owner except with consent and the routechosen or agreed upon becomes the only defined track over which thedominant owner can exercise his rights, leaving the rest of the servienttenement unburdened. . It seems to me, therefore, that, the passage
1 Gone'a translation, at p. 471 and 472.
AI.LKS, J.—Marasinghe v. Samarasinghe
441
marked " E " which relates to the rights of the servient owner are quiteindependent of the rights of the dominant owner set down in the passagesmarked “ A ”, ** C ” and “ D ” in 'oot's text.
In the case of a servitude acquired by prescriptive user, the dominant,owner uses the land of his neighbour by an unilateral act choosing thetrack along which he proceeds and using it adversely to the interestsof the servient owner for the duration of the prescriptive period. Inorder to acquire the servitude he lias to proceed along a defined track.It would not be sufficient for him to prove that lie had the general rightto stray all over the land. In the ease of a servitude created firnplicilcrtlie right of the dominant owner arises at the time of the creation of theservitude, be it by grant in general terms or by testamentary disposition,whereas in the case of a servitude acquired by prescription, the right isacquired at the end of the prescriptive period. In both cases the choiceof the route is left to the dominant owner—in the one ease he exercisehis choice lawfully and in the other adversely to the servient owner.In both cases there must bo a defined track over which the servitude hasto be exercised. ' If this be a fair analysis of the legal position, I cannotsec why the passage at “ E ” of Voct’s text cannot- be made applicableto the case of a servitude acquired by prescription as well. It is signi-ficant that although Voet deals with the law of prescript ion in otherTitles (S—t–, and 3 and 4) in S-3-S he makes no reference to prescriptionwhen ho refers to the right of the servient owner to offer an equallyconvenient alternative route to the dominant owner. 1 am of the viewthat- Voet did not make this reference because lie intended the principlesof the law to be applicable in all eases whether the servitude is createdsiniplicitir or acquired by prescriptive user. In cither case the dominantowner suffers no prejudice. His legal right is protected and he is offeredan equally convenient defined track for the exercise of that right.Needless to say, whether the alternative track is as convenient andsuitable (o the dominant owner would be .a question of fact to be decidedin the circumstances of each particular case. The fact that a definedtrack had been used for the duration of the prescriptive period withoutinterruption would be a cogent factor which the Court is entitled to takeinto account in deciding this question.
There is another reason which inclines me to the view that the textin Voet S-3-S and, in particular the passage at " E ”, can be madeapplicable to a servitude acquired by prescription. When Voet in thatpassage referred to the right of the servient owner to vary and to allot” a space different from that which was originally marked out by choiceor by covenant ” (quarn prills rlcrtione vel conventione designationfuerat spatium) he was referring to the selection of the.route by choice.
In tlu* case of a dominant owner who acquires a prescriptive user overa defined track also there is in fact a selection of the route or track byhim.
•* — J 10370 <12 70)
4-12-AL.LES, J.—Marasinghe v. Samarasinghe-~
In regard to the rights of the servient owner the Commentators onthe Roman Dutch law make no distinction whether the servitude iscreated simpliciter or acquired by prescription. Jn Van Lccuwcn’sCommentaries1 the Commentator sets down the law stated by Voetarid refers to those servitudes where the dominant owner has a choicebut does not expand on the nature of the choice or as to how the servitudeis created. He also states that the dominant owner is bound by hischoice, “ which, however, the owner of the res sertiens may do (i.e. changethe route) without inconvenience or hindrance to him who enjoys theservitude”. Lee’s Commentary on The Jurisprudence of Holland byGrotius2 refers to the respective rights of the dominant and servientowners. He agrees that Voet 8-3-8 refers to a servitude createdsimpliciter as distinct from a servitude originally constituted which couldonly be altered by mutual consent. Lee then quotes a passage from thejudgment of De Villiers A. J. A. in Garden Estates Ltd. v. Lewis3 to whichreference will be made later in the course of this judgment. In the same. note Lee makes reference to the leading case of Rvbidge.v. McCabe <6Sons*.
Rubidye v. McCabe. <k Sons was strongly relied upon by Counsel forthe plaintiff in support of the proposition that a servient owner had. the right to offer an equally convenient alternative route even whenthe servitude was acquired by prescription. This was a decision of theAppellate Division of South Africa (Lord De Villiers C.J., Solomon J,and Do Villiers J.P.) and was admittedly a case where a servitude of aright of way had been acquired by prescription. Voet 8-3-4 and 8-3-8was cited by Counsel in the course of the argument and the AppellateCourt appears to have accepted the law as stated by Voet in applyingit to the servitude acquired by prescription. Lord de Villiers was quitesatisfied that the plaintiffs (the owners of the dominant tenement)had acquired a right of way by prescription over the defendants’ farmto the main road but all three Judges concentrated on tbe question,whether the divergence of the route suggested by the servient ownerdid in any way prejudice the dominant owner’s rights. In doing so the. learned Judges applied the law as stated in Voet.
At p. 441 Lord de Villiers C.J. stated this—
“ As owners of the dominant tenements the owners must exercisetheir rights in the manner least oppressive to the defendant and asowner of the servient tenement the defendant has the right, after duenotice to the plaintiffs, to divert the course of the road provided—and thisis the most important proviso—he does not by such diversion make theuse of the road less convenient or more expensive to the plaintiffs. ”
1 Van Lceuwcn’s Roman Dutch Law (1881) Book 11, Chap. XXI, Section 6,p.234.
The Jurisprudence of Hotland by Grotius—Cap. XXXV, Section 8, pp. 188,
189.
*(1920) A. D. 450.
(1913) A. D. 441..
ALLES. J.—Maraainghe r. Samaraainghe
443
Solomon J. took the same view at p. 445 when he said—
“The evidence, in my opinion, docs not establish that there was apublic road over the farm, but rather that a servitude of the right ofway existed, the plaintiffs’ farms being the dominant and the defendant'sfarm the servient tenements. And if that be the legal position itteas competent to the defendant upon giving due notice to the plaintiffsto divert the course of such road, provided that the new road uas equallypracticable and convenient to them. ”
and dealing with the alternative routes suggested by the defendantthe same Judge said at p. 44S—
“As already stated, I am satisfied that neither of these in its presentcondition is such a road as the plaintiffs can be compelled to take.But the question remains whether it is not possible to improve both oreither of them, so as to render them as safe, practicable and convenientto the plaintiffs as the road which crossed the river at the point T,and which they had used from 1904 to 1911.”
Dc Villicrs J.P. in agreeing to the substitution of an alternative routesaid at p. 451—
“ There has not been any serious dispute about the law applicableto the case. The plaintiffs and their predecessors have from timeimmemorial enjoyed a right of way over the farm now owned by thedefendant, and the defendant was not entitled to interfere with thatright of way without their consent
It is therefore, clear that the plaintiffs are in a position to demand thatthe defendant should provide them with a right of way across hisproperty to the main road to Graaff-lteine.t which is equally suitableto the road they had enjoyed before he constructed his second weir. ”
The decision of t ho Appellate Court, therefore, establishes, in my view tin-proposition of law for which Counsel for the plaintiff respondent contendsin this ease. There is nothing in the judgment to indicate that thealternative right of way was decided By mutual consent and not in theexercise of the right of the servient owner to offer ail equally convenientroute. Jlubidge v. McCabe Jr Sons was cited with approval by theAppellate Division in Gardens Kstate Ltd. v. Lewis. This was a casewhere a servitude constituted in favour of the dominant owner and hisIn-irs was definite and not created simplicitir and it was held that theGardens Estates Syndicate, who were tho successors of the dominantowner did not have the right to deviate the pipe line without the consent,of the servient owner. De Villicrs, A.J.A. who delivered tlu- judgmentof the Court stated—
“ A definite servitude having originally been constituted, it couldonly be altered by mutual consent. In this respect a servitude asconstituted differs from a servitude created simplicilcr. In the latter
444
ALLES, J.—Mnrasinght t Samarasinrjhc
case according to Voet 8-3-8, the owner of the dominant tenementhas the election where to lay the line, which he must however exercisecivilUtr. If he has once exercised his election, he cannot afterwardschange. But the owner of the servient tenement would have the right. to do so provided the new route is as convenient as the old one {McCabev. Rubidge 1913A.D. 441). When Voet, line 50 says that the owner ofthe servient tenement has the right to point out another route to thatwhich has-been agreed upon (rcl conventione designalum fueral) hespeaks of servitudes created simplicitcr. It follows that the GardensInstate Syndicate had no right to deviate the pipe line as it did, andthe appellant having assumed liability for it in the declaration isresponsible for this illegal act. ”
Although, the learned Judge was dealing with a servitude that wasconstituted and not subject to alteration except by mutual consent,his reference to McCabe v. Rubidge can only mean that when the rightof the servient owner to offer an alternative route arises for considerationin an appropriate case there is no difference whether the servitude hasbeen created simpliciler or whether the servitude has been acquired byprescription. This view has been endorsed by Lee in his Commentaryto the Institutes referred to earlier.
The case of Rubidge v. McCabe <£ Sons has been referred to in severaltexts on the Roman Dutch Law and is a leading case on the point.Reference has already been made to Lee’s note in his Commentary toGrotius’ Jurisprudence of Holland. In Lee’s Introduction to RomanDutch Law1 he states the principles by which the direction of a way isto be determined and cites Gardens Estates Ltd. v. Leicis and Rubidge v.McCabe in regard to the servient owner’s rights, making no distinctionbetween the servitude created simpliciter and servitude acquired byprescription.. In the Principles of South African Law by Wille 2 the sametwo cases are cited in support of the servient owner’s right to divert, theroute. In Hall and Kellaway on Servitudes3.these two cases are againreferred to in connection with the rights of the servient owner. Maasdorpin his Institutes of South .African Law4 dealing with Water Servitudes,in support of the right of the owner of the servient tenement to alter the -course of the furrow, provided the new route which he selects is asconvenient as the former one, relied on these two cases. • –
From a consideration of the Commentaries of the Roman Dutch lawand the Roman Dutch law texts, it appears to me that in SouthAfrica the Courts have concentrated on the fundamental principle that aservitude should be so used as to throw the least possible burden on theservient tenement. One important method by which this object could *
*Lee's Introduction to Roman Dutch Law 3rd Ed., p. 172.
ll'tffe—The Principles of South African Law (5th Ed.), p. 222.
Hall and Kellaway on Servitudes [1942), p. 122.- –
Institutes of South African Law, Vol. II, p. 137.
445
AI.LES.J.—Ufaraainghe v. Samarasinghc
be achieved was by permitting the servient owner to offer an equallyconvenient and suitable route to the dominant owner in an appropriateease. It would also appear from the decisions of the South AfricanCourts that in South Africa, as far as the servient owner’s rights wereconcerned, a servitude acquired by prescription was equated to theservitude simplicitcr.
Although tlie decision in Rubidyc r. McCabe was delivered in 19! 3,this flccisiou appears to have been considered in Ceylon only thirty-sevenyears later. In Thennbapillai v. Sngnmanipillui1 Gratiacn J. quotingthis decision seemed to take the view that it was possible for a slightdeviation (for the convenience and concurrence of the parties) of adefined track over which prescriptive rights had been acquired. Hadthe decision in the South African ease been brought to the notice of thelearned Judges of our Court before that year the Ceylon decisions mighthave taken a different, course.
In Ceylon, it seems to me, that the underlying principle that shouldbe followed is laid down in the dictum of Justice Sanipayo in Costa v.Litem1 where that distinguished Judge said ‘ that the essence of theservitude is the right of way over the servient tenement and the particularroute affects only the manner of its exercise. What is prescribed forby long user is not the ground over which the way lies, but the incorporealright of servitude ”. The correctness of this dictum has never beenquestioned although several learned Judges have subsequently referredto it in the course of their judgments.
Some of the decisions of tlie Supreme Court in Ceylon appear, however,to have taken the view that the law as stated at Voct S-3—S has noapplication to a servitude acquired by prescription. An early case inwhich the question arose was in 1912 in Karunantl/ic v. GubrielA ppuhmny*. The observations of Laseolles C.J., though obiter, archowever entitled to the highest respect. After explaining the law aslaid down in Voct S-3-S the learned Chief Justice states as follows :—
"These principles arc readily applicable to a system of law underwhich real servitudes were created only by agreement between theparties, and they appear to he limited to the case where the right ofway was granted in general terms without specifying the exact coursewhich it should follow. In the system of law which prevails in Ceylonthe rights of way are. acquired by user under the I’rescript ion Ordinancefind the course or track over which the riyhl is acquired is necessarilyatricily defined. How far the principles of the Homan Dutch law towhich I have referred are applicable to a ease where the right to passover a defined track has been acquired by prescription is a question of somedifiiculty ; hut so far as the present appeal is concerned the questionsarc purely academic.” •
• HUSO) 52 .V. L n. 225 at 227.* (1012) 16 S. L. R. 26 at >7.
* (1012) IS A*. L. R. 257.-
446
ALLES, J.—Murasinghe t>. Samarasinghc
It will be noted that the learned Chief Justice inclines to the viewthat the principles set out in Voet S-3-S will not apply to a servitude'obtained by prescriptive user although he chooses to leave the questionopen. When Lascelles C.J. referred to the system of law prevalent inCeylon he no doubt had in mind the provisions of the Prescription. Ordinance. But the law of Prescription existed in South Africa aswell at the time the decision in Rubidge v. McCabe ft- Sons was delivered.
The authority that was strongly relied upon by Counsel for thedefendants, however, was the decision of Schneider J. in Madanayakcv. Thimolheus1 where the facts were very similar to the facts of thepresent case and where the same proposition of law was enunciated.The trial Judge in giving judgment in favour of the servient ownerheld that the deviation was “ practically as serviceable as the formerroute”. After citing Voet in extenso the learned Judge explains thelaw there stated. Dealing with the concluding passage in Voet’s textwhere the servient owner is given the right to offer an alternativeroute, provided it does, not prejudice the owner of the dominanttenement, Schneider. J. makes the following observation—
“ The reason for this must be the same as that given by Voet why theowner of the dominant tenement should have the right of election,namely, that by its creation the servitude is a burden on the wholeland.:…….”
I am in agreement with my brother de Kretser J. that this reasondoes not bear critical examination. The reason given by Voet for theelection by the dominant owner has no relevance to the right of the .servient owner to offer the alternative ronte. Once the dominant ownermakes his choice over a defined track, the rest of the land is free of theservitude: Therefore the servient owner’s right to offer the alternativeroute from out of his unburdened land is independent of and quitedistinct from the rights of the dominant owner which had to be regulatedin a-manner to cause the least possible burden on the servient owner. .When Voet set down the passage at “ E ” of 8-3-8 he merely sought toemphasise that what he had stated earlier in that Title did not in anyway affect the servient owner’s right to offer an equally convenientalternative track. In my view this right he was entitled to exercise,whether the servitude was created simpliciter or acquired by prescriptiveuser. The only exception to this rule would, be when the servitude iscreated by a grant in which ease the servient owner is bound by theterms of the grant; (Gardens Estates Ltd. v. Lewis (supra) .)■■’.
In Fernando v. Fernando 2 a Bench of two Judges (Fisher C.J., andDrieberg J.) followed the decision of Schneider J. in Madanayake v.Thimothevs but the learned Chief Justice who delivered the judgmentof the Court did not make a critical analysis of the reasons given forthe opinion expressed by Schneider J.
1 (1921) 3 O. L. It. S2.~* 11929) 31 N. L. B. 126.
ALLES. J.—Marasinghe v. Samarasinghe
447
With respect-, therefore, I am unable to agree with My Lord the ChiefJustice that these tlircc decisions have settled the law on the point inCeylon. There are two other decisions of our Supremo Court—Hendrickv. Sarnelis 1 and Thambapillai v. Nagamanipillai * which Counsel forthe defendant has cited in support of his case and must be considered. Iwill deal with these decisions after considering the dicta in the decisionsof our Courts which seem to support the plaintiff's contention.
The decision in Karunaralnev. Gabriel Appuhamy (supra) was deliveredon 5th June 1912 and it is not unlikely that when Sampayo J. deliveredhis judgment in Costa v. Livera (supra) on 29th July of the same yearthe learned Judge was not aware of the views of Lascclles C.J. In Costa v.Livera tho parties admitted the existcnccof the servitude and Sampa3*o J.took the view that for the purposes of prescription the benefit of thepossession of the old route attached to the new route. The case washowever remitted to the trial court for a consideration of the evidenceon the lines suggested by Justice Sampayo.
Sampayo J.’s views in Costa v. Livera (supra) are not inconsistent withhis decision in the later case of Kandiah v. Seenitamby 3. In that casothe question that arose for decision was whether a right of servitudeexisted and tho Judge held that Voct S-3-S had no application in thecircumstances of the case. He however agreed with Lascellcs J. inKarunaratne v. Gabriel Appuhamy and Wendt J. in C. R. Mallakam16.0S0 that the evidence to establish a prescriptive servitude of waymust be precise and definite. In the circumstances there was no necessityfor the learned Judge to refer to his earlier decision in Costa v. Livera.Ennis J. in Morgappa v. Casie Chetty* also held that in the case of atrack claimed by prescriptive user, the track must be strictly defined,and distinguished Costa v. Livera because in that case the existenceof the right of way was admitted. The view expressed by Sampayo J.in Costa v. Livera was followed by Koch and Socrtsz JJ. in Dias v.Fernando 5. In Dias v. Fernando the dominant owner had used a definitetrack for seven or eight j'ears. Thereafter it became necessary to effecta deviation by the construction of some steps abutting on the main roadas a result of some improvements being effected to the road by thoauthorities. The question that aroso for determination was whother thenew defined track could be claimed by tho dominant owner without anotarial agreement or without user for the prescriptive period. Koch J.followed the reasoning of Sampaj'o J. in Costa v. Livera and held that aservitude, being essentially an incorjjoreal right over a servient tenementand tho particular route affecting only tho manner of its oxerciso and theincorporeal right being not immovable iu its nature., a deviation in thoparticular route by an arrangement between the parties did not affect
> {1940) 41 .V. L. R. .519.* (1913). 17 X. L. R. 31.
* (19-50) Si X. L. R. 22 j.* (1933) 37 X. L. R. 304
(1946) 47 X. L. R. 354.
443ALL.ES, J.—Mnrasinghe v. Samaratinrjhe
such incorporeal right, which continued to exist and could be exercisedover the substantial track without the necessity for a notarial instrument.Soertsz J., though agreeing with Koch J., had doubts about the correct-ness of the principle, a doubt which was shared by Gratiaen J. in tholater case of Thambapillai v. Nagamanipillai.1 Soertsz J. felt “ that thoincorporeal right and the particular track are inseparable and that thoincorporeal right once acquired had no existence independent of thetrack. In other words the right does not exist in the abstract.” Hisview was that when a new track was substituted for the old one, it seemedincomplete to say that the change affected only the manner of exercisingthe right and that a new incorporeal right was dreated. With all respectto Justice Soertsz, I cannot see that a new incorporeal right has beencreated. Once the period of prescription was completed, an incorporeal. right to traverse over the land of the servient owner came into existence.-This fight was inseparable from the track over which tho dominantowner travelled for the duration of the prescriptive period. By thoservient owner offering an equally convenient defined track the incorporealright which was vested in the dominant owner became merged in tho■aew defined track and the incorporeal right did not exist in the abstractbut existed in conjunction with the' new defined track. The decisionin Costa v. Livera was considered by Cannon and Jayetileke JJ.- inSinnatamby v. Kathirgaman.* Jayetileke J. who, as Counsel, successfullyargued for the dominant owner in Costa v. Livera held that when a rightof way has been acquired by prescription and a new route substitutedby agreement for the old route the benefit of the old possession wouldattach to the new route.
In Dias v. Fernando and Sinnatamby v. Kathirgaman there was a mutual.agreement between the parties to alter the route and the deviationconsisted of a portion of tho old track and part of the new track, whereasin the present case, except for a minor portion of the track which wasover the land of one Kainanayako. who is not a party to this action, theentire portion of the alternative track offered by the servient ownerlies over the land of the plaintiff. There was also no agreement betweenthe parties, but the plaintiff relied on his legal right to offer the alternativetrack. If the Roman Dutch Law made no distinction between a servitudecreated simplidter and a servitude acquired by prescription in regard tothe rights of the servient owner, I do not see in principle any differencebetween an agreed deviation and a deviation offered only by the servientowner. In either case the deviation must proceed on the basis of a legalright, that it is possible to make such a deviation. The principle isbased on tho dictum of Sampayo J. in Costa v. Livera followed in tholater decisions in Dias v. Fernando and Sinnatamby v. Kathirgaman. Thequestion that arose for decision in Hendrick v. Sarnelis was identicalwith the question that was before Sampayo J. in Costa v. IAverq andKoch J. in Dias v. Fernando. Howard C.J., while realising the difficulty
1 (1950) 52 N. L. R. 225.» (1909) 2 S. O. D. 69.
ALLES, J.—Marasinghe v. Somarasinghe
449
in reconciling the decisions which discussed the problem, refused tofollow tho decision of Koch J. in Dias v. Fernando and took the viewthat the dictum of Sampayo J. was no authority for tho propositionaccepted by Koch J. He follows the decisions in Madanayakev. Thimotheus and Karunaratne v. Gabriel Appuhamy. The reason whythe learned Chief Justice considers Koch J.’s reasons to be faulty isbecause Koch J. states that “ if the views in Karunaratne v. GabrielAppuhamy, Fernando v. Fernando, Madanayake v. Thimotheus, Andri-sv. Manvel and Morgappa v. Casie Chetty arc carefully examined it willbe found that the correctness of Do Sampayo, J.’s opinion has neverbeen questioned.” The learned Chief Justice, in connection with thispassage, states that scrutiny of the reports of the eases mentioned byKoch J. indicates that Costa v. Livera is not referred to in Karunaratnev. Appuhamy, Fernando v. Fernando, Andris v. Manuel and Madanayakev. Thimotheus. “ It is therefore difficult to understand ”, says he, “ howKoch J. could draw any deduction as to the soundness of the decisionin Costa v. Livera from the fact that Sam pa 30 J.’s opinion was notquestioned.”
Costa v. Livera could not be referred to in Karunaratne v. GabrielAppuhamy for the obvious reason that the. judgment in the latter casewas delivered prior to Sampayo J.’s judgment in Costa v. Livera ; Andrisv. Manuel1 was a criminal appeal decided in 1909, six years before Costav. Livera saw the light of day ; it is a misdirection of fact to say thatSchneider J. did not refer to Costa v. Livera in Madanayake v. Thimotheusarid there was no ncccssitj- for tho learned judges in Fernando v. Fernandoto refer to Costa v. Livera in their judgments, because the3' followedMadanayake v. Thimotheus without questiom. Therefore the reasonsof the learned Chief Justice for failing to consider tho dictum of Sampajo J.in Costa v. Livera does not bear examination. What Koch J. sought tomaintain was, that in the cases referred to by him in Fernando v. Dias,tho dictum laid down in Costa v. Livera has been unshaken even thoughsome of these decisions were prior to 1912 and others subsequent to thatdecision.
Tho observations of Gratiaen J. in Thambipillai v. Nagamanipillai atj>. 220 arc obiter because the issue in that case was whether a servitude wasacquired by prescription. The evidence was to the effect that tho definedroute only existed for two or three years and that for the rest of theprescriptive period the right had been exercised in a general way and notalong a particular track. Here too when the learned Judge cites Kandiahv. Scenitamby and Morgappah v. Casie Chetty in support of the propositionthat the substitution of one track for another has no application in caseswhere a servitude is claimed b3' virtue of prescriptive user, the learnedJudge is not quite accurate, for, these decisions, as I stated earlier, onl)*siipjiort the proposition that in order to establish a servitude b>*prescription, there should by a well defined track in existence.
* (1000) 2 S. C. D. 09.
450
ALICES, J.—Mnrosiii'jhe v. Scunarasinghe
I have endeavoured to discuss the Roman Dutch Law and the .SouthAfrican decisions which appear to he relevant to the question at issue.I have also discussed the decisions of our Courts where the learned Judgesof this Court have considered this difficult problem. Before I concludeI desire to summarise my findings in support of the view that theplaintiff's action in this case is entitled to succeed.
The paramount consideration to be taken into account is that theservitude must be exercised in a manner which will cause the least possibleburden on the servient owner and one method by which that object canbe achieved is by granting the servient owner the right to offer an equallyconvenient route to the dominant owner. The law as laid down in Voet8-3-8 in regard to the rights of the servient owner is applicable to servitudescreated simpliciter and servitudes acquired by prescriptive user. Thisview is supported by an examination of the text in Voet 8-3-8, theprinciples of the Roman Dutch Law found in the Commentaries and theSouth African texts and also in the decisions of the South African Courtof Appeal.
The principles that have been considered by the learned Judges ofthe South African Court of Appeal appear to be that the servitude shouldbe exercised, to borrow the words of Solomon J. in Rubidge v. McCabe <6Sons at p. 448, in a maimer that would “ satisfy the legal claims of theowner of the dominant tenement ” and also “ meet the convenience ofthe owner of the servient tenement ”. In my view this is an eminentlyreasonable attitude having regard to the paramount consideration thatthe servitude should be exercised in a manner which will cause the leastburden on the owner of the servient tenement. If such be the case, whyshould not the owner of the servient tenement offer an equally convenientalternative route to the dominant owner which does not prejudice himin any way ? For the same reason why should the servient owner bybeing deprived of this right in the case of a servitude acquired byprescription have his land burdened for ever by this fetter—-a burden whichwill bind him and his heirs for all time ? There may be a variety oflegitimate reasons why the owner of a servient tenement may not havebeen able to develop his land and avoid the dominant owner fromobtaining a right of way by prescriptive user—lack of funds, absencefrom the Island, transfers as a public servant from one station to another,to mention a few. In later years he may contemplate developing hisland either for an agricultural purpose or a housing estate or a residencefor himself. Why should such an owner be condemned for ever to carrya burden over a part of his land ? If concessions can be allowed to aservient owner in the case of a servitude created simpliciter, there is morecogent reason why such concessions should be allowed in the case of aservitude acquired by prescriptive user.
In Ceylon it has been held that in order to establish a servitude byprescription there must be a defined track (Karunaralne v. Gabriel
DB KRETSER, J.—Marasinghe v. Samarasinghe
451
Appuhamy, Kandiah v. Seenitamby and Morgappa v. Casie Chelty) butthe possession by the dominant owner of the old route can be utilised forthe purpose of proving prescription over the new route when the deviationis created by mutual consent {Costa v. Livcra, Fernando v. Dias andSinnatamby v. Kathirgaman). If a defined route by prescriptive user canbo established by mutual agreement, there is no reason in principle whythe servient owner should not be permitted to offer an equally convenientdefined route which causes no prejudice to the dominant owner, when thelaw gives him such a right.
The decisions in Madanayake v. Thimotheus, Fernando v. Fernandoand Hendrick r. Sarnelis should be overruled as they have been wronglydecided.
I take the view that the learned trial Judge was justified in the view hetook in giving judgment in favour of the plaintiff. With changing socialconditions and the need for developing one's own land to its fullest extentit would in my view, be a denial of justice to the servient owner, to holdotherwise.
I would dismiss the ajipcal with costs.
de Kretser, J.—
The Plaintiff in this case admitted that the Defendant had acquiredby right of prescriptive user a right of way over his land Galabodawattaalong the track A, B, C, D, E, F shown on Plan 7111 of 22.6.63 marked Xand filed of record. Plaintiff claimed that as owner of the servienttenement he was entitled to deviate the right of way along the routeE, B, Q, R, B, A shown on the sdme plan.
The Trial Judge who inspected these routes was satisfied that theroute offered was “ not less convenient or more expensive to the Defendantand that it was equally practicable to the Defendants except that itwas a little more distant bysomc yards He was satisfied that if theroute was allowed, it would enable the plaintiff to develop his land fully.
The question of law that then arose on his finding of fact was, “givena right of way acquired over a definite track by prescription has the ownerof the servient tenement the right to assign a different track providedthat the latter is as serviceable as the other ? ”.
That question was dircctlj’ before Justice Schneider in the case ofMadanayake v. Thimotheus1 who unhesitatingly answered it in thenegative.
1 (1021) 3 C. L. Rec. 82.
452- EE KRETSER, J.—Marasitiyhe v. Satnarasiu'jht
An examination of the case of Madanaijake v. Thimothcus shows thatthe Trial Judge in coming to the conclusion that the owner of the servienttenement was entitled to alter the route, relied on the following passagefrom Voet:
” Quae tamen non impediunt, quo minus domino praedii ‘servientis*mutarc liccat, et aliucl, quam prius elcetione vel conventione designatuinfuerat spatium ad iter, actum, viam assignare ; si modo, nullum inde. praedii dominantis domino praejmlicium generetur. " (Coniincntniinsad Pandcctas.) (VUI-3-S.)
In dealing with the appeal, Schneider J. was of the view that thispassage, appearing as it does in Voet 8.3.8. with the passages in whichVoet is dealing with how the route over which, the servitude is to beexercised is determined in those cases where the incorporeal right ofservitude is granted or bequeathed in general terms, has no applicationoutside that context.
It is to be observed that Voet himself gives the reason for the need forselection as follows :—
“The reasonis, that when no part has been pointed out, the
whole farm and every particle of soil on the farm is supposed to be subjectto the burden of the servitude.”
Voet points out that once the owner of the dominant tenement hasmade his selection, “ he lias not afterwards the power of changing it;
' so that every part of the land other than that on which the servitude isexercised is for the future considered unburdened."
The passage quoted above which gives the right to the owner of theservient tenement to alter the route, contains no reason given by Voetas to why it should be so, and Schneider J. hazards the opinion "thereason for this must be the same as that given by Voet why the oivnerof the dominant tenement should have the right of election, mainly, that' by its creation the servitude is a burden upon the whole land." Thatreason in my view does not bear examination for, with the selection of aroute by the owner of the dominant tenement the rest of the land isfree from the servitude. If appears to ine rather that Voet, in puttingin this passage after setting out the principles that guide the selection of' the route where the grant or bequest is general in nature, wantsto emphasize, that in no way is there taken away the inherentright of the owner of the servient tenement to claim that thefetter over his land should be exercised in the way lie finds least
DE KHETSER, J.—Mara-ringhe v. Samarasinght
•153
oppressive.That is why in the words of Voet " nothing in
this prevents the owner of the servient tenement from making achange, and fixing on some other part of his property for the exercise ofthe right of passage, or of driving, or of way, than that determined onpreviously, either by election or by the agreement ; provided only thatthis change in no way prejudices the owner of the dominant tenement.”Now what difference would it make that the right of servitude has becomevested in the dominant tenement not in consequence of a selection madeunder a general grant, but by the user of a particular track for the periodnecessary in terms of the prescriptive ordinance ?
It is now settled law that it is a prerequisite to the acquisition of aright of way by prescription that a well defined and identifiable courseor track should have been adversely used by the owner of the dominanttenement for over ten years, but the fact that that is how the dominanttenement became vested with the servitude docs not make the continueduse of the track thereafter anything more than the manner in which theservitude now vested is exercised. This aspect of the matter was firstpointed out by Dc Sampayo A.J. in Costa v. Livera1 when he said “Afterall the essence of the servitude is the right of way over the servienttenement, and the particular route affects only the manner of itsexercise. What is prescribed for by long user is not the ground overwhich the way lies but the incorporeal right of servitude. ”
As Lee in his Introduction to Roman Dutch Law 3cd. Page 172—citingas authority Van Heerdcn v. Coelzee 1914 A.D. at Page 172—says—
“ The principle is general that the owner of the dominant propertymust keep Btrictly within the terms of the servitude ”. It is thereforenot strange that the owner of the dominant tenement cannot exercisethe right of way obtained by prescription over any other part- of the land.That results from the fact that by the use of the particular track whichgave birth to the servitude he had already made his choice of where hewanted the route and he had no right over any other part of the land.
It will be seen therefore that he is in no worse position than the owner ofthe dominant tenement who has obtained his right by a general grant orbequest and has exercised his right of selection, w hich selection he isbound by. But all this does not affect in my opinion the right of theowner of the servient tenement to ask that in the exercise of the right,as little burden as possible should be cast on the servient tenement.
It appears then to me that there is no good reason that can be urgedwhy it should not be open to the owner of the Bervicnt tenement withthat object in view, to ask that the manner in which the servitude is
(1012) 1G A*. L. R. 2G.
434
DE KRETSEE, J.—Mnrnsinyhe v. Snmarasi'nQhe
exorcised, namely the route, should be altered in such a way that whileit causes no prejudice to the'owner of the dominant tenement, it resultsin less oppression to the servient.
The object of the owner of the dominant tenement is to be able togo across the servient land, and if that object is preserved to him by theoffering of a route in regard to which the finding of fact is that it isone which would cause him no more inconvenience, it is difficult tounderstand on what footing he could resist the change.
It is of importance to note that in South Africa, as far back as 1913in the case of Rubidge v. McCabe1 in dealing with a servitude of rightof way which the Court was satisfied had its origin in prescriptive user,.Lord Do Villiers CiJ. laid down the law as follows —
“ The legal position is, therefore, that a servitude-exists, the plaintiffs’farms being dominant tenements and the defendant’s farm servienttenement. As owners of the dominant tenements the owners mustexercise their rights in the manner least oppressive to the defendantand as owner of the servient .tenement the defendant has the right, afterdue notice to the plaintiffs, to divert the course of the road provided—and this is a most important proviso—he does not by sucli diversionmake the use of the road less convenient or more expensive to the plain-tiffs. ” and Solomon J. who agreed with him laid down the law asfollows :—“ The evidence, in my opinion, does not establish that therewas a public road over the farm, but rather that a servitude of right ofway existed, the plaintiffs’ farms being the dominant and the defendant’sfarm the servient tenements. And if that be the legal position it wascompetent to the defendant upon giving due notice to the plaintiffs todivert the course of such road, provided that the new road was equallypracticable and convenient to them. ”
. This statement of the law has never been, questioned so far as I havebeen able to ascertain in South Africa.
In Ceylon, the decision in Madanayake v. Thimotheus was followed inFernando v. Fernando3 by Fisher C.J. with whom Drieberg J. agreed.
In following the judgment of Schneider J. in Madanayake v. ThimotheusFisher C.J. said as follows :—
“ The appellant’s Counsel mainly relied upon certain passagesfrom Voet in Book VIII. C.3.S.8 in support of his contention. Thesepassages have no reference to a right of way acquired by prescription,
A IS.'A. L. R.) 1913 A. D. 433.
(1929) 31 N. L. R. 126.
DE KRETSER, J.—Marasingfit v. Samarastnghe
435
They are set out in the judgment of Schneider J. in Madanayale v.Thimotkeus, and the learned Judge says in his judgment that tlicy* put it beyond any manner of doubt that the writer is speaking ofonly those servitudes which arc created in a particular way, namely,where the right is granted in general terms without mention of theroute over which it is to be exercised.’ The sole question, therefore, iswhether the right acquired is over the track used in process of acquiringit. In my opinion it is. User of a definite track is the only way inwhich a right of way over the land of another can be acquired byprescription (see Karunaratne v. Gabriel Appukamy and Kandiah tSeenitamby), and in the absence of any authority to the contrary itseems to me that the necessary and obvious consequence is that theright acquired is over the definite track. ”
While it is beyond question that in Voet 8.3.8, Voet is dealing withthe grant of a servitude simpliciier, and in such a case how the route isto be selected and by whom, the question whether, because Voet makesmention in that context as follows :—
" These things however do not prevent the owner of the eervienttenement from having liberty to vary and to allot for the foot-passage,driving or right of way a space different from that which was original^'marked out by choice or by convenant, provided that no prejudice iscreated thereby to the owner of the dominant tenement. ”
it follows that the right of the servient owner so set out is limited onlyto cases in which the grant is simpliciter, has not been gone intoin Fernando v. Fernando and has been taken for granted.
I have already set out why the reasoning of Schneider J. on this pointdocs not appeal to me. In the result-, in my opinion, Fernando v.Fernando carries the matter no further.
The other decisions in Ceylon cited at the argument, commencingwith Costa v. Livera *, Dias v. Fernando *, Henderick v. Saranelis 9, Thatnba-pillai v. NagamipiUai*, are all concerned with the question whether anotarial document was necessary to give legal validity to a change ofroute where, by mutual consent, there was substituted a new route foran original route acquired by prescriptive user. They appear to meto be of little assistance in coming to a conclusion as to whether theowner of the servient tenement is entitled as of right to change theroute.
(1912) icy. L. R.2C.(1935) 37 y. L. R. 304
(1940) 41 N. L. R. 519.(1950) 52 N. L. R. 225.
. 450' DE KRETSER, J.—Marasinghe v. Samarasinghc
After drafting the main portion of this judgment, I had the privilegeof reading the draft judgment of My Lord The Chief Justice, and it is amatter of regret to me that I find myself unable to agree with it. Inthe course of his judgment he saj-s —
“ In my view therefore a servient owner has in the case of a grantsimpliciter a right to determine the line of this exercise of the servitude,only because there has not been an earlier final determination of theline. But in the case both of a defined grant, and of a servitudeacquired b}' prescription, there is such a final determination amitherefore no scope for any deviation, save by mutual agreement. ”
With respect, with theselectionofthelineby the owner of the dominanttenement, there is a line determined as final so far as the dominant owneris concerned as where the line is fixed in the grant itself or in the acquisitionof the right of servitude by prescriptive user. I think it necessary torepeat that in the grant simpliciter, once the owner of the dominanttenement has made his selection in accordance with the rules set outby Voet, the line for the exercise of the servitude is established andin the. establishment of that line the wishes of the owner of the servienttenement play no part. The oiraer of the servient tenement cannotchange the line where it is fixed by grant even if he offers a route asconvenient as the earlier one for the reason that as Voet points out in8.3.6. the route has been precisely picked by the grant that creates theservitude. In such a case, the owner of the servient tenement wouldnot be able to derogate from the grant given by one who had the rightto burden the servient tenement in a manner which was pleasing to thegrantor. In the case of the grant simpliciter he has no such handicap .and can from time to time offer a route which he finds more convenientfor the use he wishes to make of his land provided the route causes noprejudice to the dominant owner.
He has that right because the Roman Dutch Law is that all rights ofway must be exercised so as to burden the servient property as littleas possible—vide t he authorities given by Lee 3 Ed. on Roman DutchLaw, Page 172. It appears to me that the fact that the owner of thedominant tenement has obtained his servitude by the prescriptive useof a particular track, is no bar to the owner of the servient tenement’sright to have the track altered to one which is as convenient,to thedominant owner. What is “ as convenient ” i3 a question of fact, and'as to why the owner of the dominant tenement went along that particulartrack that resulted in his obtaining a servitude of a right of way willprobably have a bearing on that question. In my opinion, the decisions
Karttnaratne v. Fernando
457
in Madanayake v. Thimotheus 1 and Fernando v. Fernando* must be over-ruled, and the appeal in the instant case from the decision of the DistrictJudge that the Plaintiff is entitled to deviate the path on the proposedroute which the District Judge has found will hot “cause anyinconvenience, hardship, prejudice or detriment to the Defendant but-will enable the Plaintiff to develop his land ”, must be dismissed withcosts.
I make my order according^'.
Appeal dismissed.