008-NLR-NLR-V-63-M.-CORNELIS-SINGHO-et-al.-Appellants-and-V.-P.-S.-PERERA-et-al.-Respondents.pdf
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S ANSONI, «T.—Oomelis Singho -v. Perera
Present: Sansonl, J.
M.CORNELLS SINGHO et al., Appellants, and V. P. S. PERERA ei al.y
Respondents
S. C. 368—C. JR. Avissawella, 1132
Servitude—Right of using a foot-path—Scope.
The right of using a foot-path does not include the right to take a vehicleover that path. It is nothing more than the right of being able to come and goon foot. The presence, therefore, of stiles at either end of the servient landcannot be said to impede the free use of the path by those who have the rightto use it.
-A-PPEAL, with application in revision, from a judgment of the Courtof Requests, Avissawella.
S.B. Lekamge, for Plaintiffs-Appellants.
W. Wimalachandra, with M. T. M. Sivardeen, for 1st to 3rd Defendants-Respondents.
Cur. adv. vult.
November 28, 1960. Sansoni, J.—
There is no right of appeal in this case, but as an application in revisionhas also been filed I have heard counsel on the merits.
The question is whether the learned Commissioner was right in sayingthat the defendants, over whose land the plaintiff’s have been granted afoot-path, should be allowed to retain a stile at either end where thepath enters their land ; he thought that the stiles were necessary for theprotection of the defendants’ land. Mr. Lekamge has urged that theorder is wrong because a person entitled to a foot-path also has a rightto use a bicycle or a wheel-barrow over that path, and the stiles willprevent the use of such vehicles. He relied on the observations ofde Kretser, J. in Jayasekera Hamine v. Agida Hamine x.
Having considered the matter myself, I do not think that the rightof using a foot-path includes the right to take a vehicle over that path.I think it is nothing more than the right of being able to come and goon foot. According to Voet 8-3-1, the servitude known as ‘iter’, orfoot-passage, in Roman Law included the right to go on horseback oreven to be carried in a sedan-chair or litter ; but in modem usage the rightwas only to come and go on foot. The right to go on horseback (com-monly termed bridle-path) was a different servitude. Grotius agreeswith Voet: see Grotius’ Introduction 2-35-2 & 3. Van Leeuwen in hisRoman-Dutch Law 2-21-2 & 3 follows Grotius.
It cannot be suggested that the presence of the stiles impedes the freeuse of the path by those who have the right to use it, for they are acommon feature in our villages.
I therefore dismiss the appeal and the application in revision with costs.
Appeal and Application dismissed.
* (1944) 46 N. L. R. 38.