011-NLR-NLR-V-60-MOHOTTI-APPU-et-al.-Appellants-and-WIJEWARDENE-Respondent.pdf
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WEERASOORIYA, J.—Mofrotti Appit v. Wijewardene ■
' J"m''.,i ■I „m , i ,■ — >■
195SPresent: Weerasooriya,!.• *
MOHOTTI APPU et al., Appellants, and WlJBWAItDENB,
Respondent■*
S. G. 164—C. B. KegaUe, 19,913
Servitude—Way of necessity—Scope—Effect of alternative route.
A person can claim a way of necessity for the purpose of going from one landowned by him to another. The right of way will not be granted if there is analternative route to the one claimed although such route*may be less oonvenientand involve a longer and more arduous journey.
-A-PPEAL from a judgment of the Court of Requests, KegaUe.
0. B. Qunaraine, for the defendants-appellants.
No appearance for the plaintiff-respondent.
Cur. adv. vuti.
December 21,1966. Weerasooriya, J.—
This appeal is from the judgment and decree of the Court of Requests,KegaUe, declaring the plaintiff-respondent entitled to a right of way ofnecessity over the land Kandewatte belonging to the defendants-appellantsalong A to C as, delineated in Plan No. 1071 dated the 26th August,1964:
According to the evidence this land was divided under partitiondecree entered in 1925 into four separate allotments of which a lotreferred to in that decree as A1 is the subject of the disputed right ofway. To the north-west of lot A 1 was Lot A which was also subse-quently divided under partition decree of 1948 into five separate allot-ments marked A, B, C, D and E in the partition plan of which Lot Ewas at the time of the institution of the present action owned by oneGunadasa. This Lot E and Lot Al belonging to the defendants-appellants are contiguous lands and lie between the land Tennehena-belonging to the plaintiff-respondent (on the west of Lot E) and anotherland called Meemendigalawatte (on the south and south-east of Lot A1).The residing land of the plaintiff-respondent is Hitinawatte to the southof Meemendigalawatte and adjoining a portion of Meemendigalawatteseparately possessed by one Dingiri Appuhamy as a co-owner. Theplaintiff came into Court on the basis that he is also a co-owner ofMeemendigalawatte but although his title to the land seems to be indispute no issiie was raised on that point.
The plaintiff says that in order to go to Tennehena, a small rubberland, from his residing land Hitiniwatte he gets on to the portion ofMeemendigalawatte possessed by Dingiri Appuhamy and from thereit is necessary to go across Lots A1 and E of Kandewatte which two
^ WEBBASOQRIYA, 3.—%£$kotti Appu v, Wijewardene47
lots would Constitute the servient tenements in respect of the right of. Way claimed, ' The footpath shown from points A to C in Plan No. 1071commences at the boundary between Lot A 1 and the portion of Mee-mendigalawatte possessed by Diagiri Appuhamy and extends acrossLot A 1, while C to D represent fhe continuity of it over Lot E up to theland Tennehena. The owner of Lot E has noli been made a party to thisaction on the ground that no objection has been raised by him to theplaintiff going across his land to Tennehena.
Mr. Gooneratne who appeared for the defendants-appellants sub-mitted that as the right of way was claimed from one land to anotherthe plaintiff could not in any event succeed since such a right is notrecognised by our law. For this submission he relied on a passage inthe judgment in Fernando v. Livera 1 where it is stated that a personis1 not entitled to a way of necessity for the purpose of going from oneland owned by him to another. The facts as appear from the judgmentin that case, show, however, that what was claimed was a way of necessityfrom one of plaintiff’s lands to a village committee road to the northof it, and not from that land to his other land. The particular statementrelied on in that judgment would, therefore, appear to be -in the natureof an obiter dictum. According to Hall & Kellaway on the Law ofServitudes 2, “ a way of necessity is a right of way granted in favour ofproperty over an adjoining one, constituting the only means of ingressto and egress from the former property to some place with which itmust of necessity have a communicating link”. There is, thus, noreason to take the view that the place with which the communicatinglink is sought to be established may not be another land. The authorsgive as an example a right of way (to be used only upon necessaryoccasions) “ from the cornfields to the dominant property ” and citeas authority for this statement a passage from Grotius’ Introduction toDutch Jurisprudence 3 which refers to a right of way “ for the purposesof the harvest, of interment, or of some other necessity ”.
But even if on the ground of necessity it would have been open to theplaintiff to claim a right of way from Tennehena to either Meemendigala-watte or his residing land Hitinawatte over the land of the appellants,having regard to the burden which lay on him to establish his claim hehas, in my opinion, failed to adduce sufficient evidence to entitle him tojudgment. All that he has stated as a ground for claiming the rightof way is that latex collected from rubber trees on Tennehena iscoagulated in his house. He has given no reason why the process ofcoagulation cannot be done elsewhere. Moreover, there is evidenoeadduced on both sides that an alternative route from Hitinawatte orMeemendigalawatte to Tennehena is available to the plaintiff. Thisroute is said to lie, at lgast in part, over privately owned property, butso does the way claimed. The plaintiff, and the defendants-appellantsare at variance over the length of this alternative route. According tothe evidence adduced by the plaintiff it is about one and a half miles,while according to the defendants it is not much more than a quarter
1 (1948) 49 N. L. R. 850 at p. 354.i (1942 Edition) p. 65.
* 2.35.7 (Maaadorp't TrcMation).
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WEERASOORIYA, J.—Mohotti Appu v. Wijewardene
of a mile. There is no evidence as to the length of the route betweenthe plaintiff’s house and Tennehena over the appellants’ land, whichroute undoubtedly is the more direct one. But even if the difference is,on an acceptance of the evidence adduced by the plaintiff, taken asabout a mile, that alone would not be a reason for allowing his claim.It was held in the case Of Lentz v. Mullin1 that if the person claiming theright of way “has an alternative route to the one claimed, althoughsuch route may be less convenient and involve a longer and morearduous journey, so long as the existing road gives him reasonableaccess to a public road he must be content, and cannot insist upon amore direct approach over his neighbour’s property ”, These observa-tions would equally apply where the right of way claimed is from oneland to another.
The judgment and decree appealed from are set aside and the plaintiff’saction is dismissed with costs here and in the Court below.
Appeal allowed.
1 (1921) E. D. L. 268.