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MUTTIAH v. DIAS.C. B., Colombo, 48,701.
Overhanging tree—Compensation for cutting it down—Prescription.
Under the Roman-Dutch Law no right of servitude oan beclaimed m respect of an overhanging tree. The owner of a landwhich a tree overhangs has, therefore, a right to have the tree cutdown without paying compensation for it to its owner.
rT''HE plaintiff in this case claimed to have cut down five trees"*■ which stood on the defendant’s land and overhungthe plaintiff’s land. The defendant pleaded that the trees hadstood in the position in which they were for twenty years, and thatshe had acquired a right by prescription to have them in thatsame position. The Commissioner held that three of the treesoverhung the plaintiff’s land, but that the defendant had acquireda prescriptive right to have those trees in the position in which .they were. Accordingly, while directing that those trees be cutdown, he ordered that the plaintiff should pay the defendant, compensation therefor. The plaintiff appealed from the partof the order condemning him in compensation.
Browne and Domhorst, for appellant.
Withers, for respondent.
Cur. adv. wit.
19th August, 1887. Bubnside, C.J.—
In this case the libel of the plaintiff disclosed no cause of action.The object of the suit was to have some cocoanut trees on theadjoining premises of the defendant cut down. It is nowhere statedthat they overhung the plaintiff’s property. The cause of actionalleged is the position of the trees, “ the constant falling of“ branches, and the frequent dropping and plucEng of nuts“ therefrom on the plaintiff’s land.-” This would not give theplaintiff the right he claimed unless the trees overhung his land.However, the defendant seems to have observed this defect, and hasgenerously come to the rescue and corrected it for the plaintiffby admitting, what he never averred, that one cocoanut tree over-hangs'the neighbouring premises on which the plaintiff resides.This tree she says she was always ready to cut down if paid for,but she denies that the plaintiff has the right to have any .ofher trees cut down. She says that for twenty years she enjoyedthe right of having the trees stand in their present position,
1887.August 10and 19.
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and she pleads prescription under the 2nd clause of Ordinance No. 8Of 1834, and 3rd clause of Ordinance No. 22 of 1871.*
There seems to have been some negotiation between the partiesrather than a regular trial of issues, which has resulted in judg-ment being given that the defendant cut down three trees andthat the plaintiff pay defendant Rs. 50. The plaintiff has appealed.Sdme objection was made by the counsel for the defence to thejurisdiction of the Court of Requests to order the trees to be cutflown. I do not find that the defendant has appealed, and Ifind that she consented to cut down the trees if plaintiff paid forthem. Had she appealed, jurisdiction, prescription, and otherlegal questions would have arisen, but she has not; and as I havesaid, the only question for me to decide is, Had the Court the rightto order the trees to be paid for, and I unhesitatingly say I canfind no authority for it. I have carefully read the judgment inBamandthan, 1867, p. 234, cited at the Bar, That does not touch. the questioh; and on other points connected with the law of thesubject it is so manifestly judge-made-law that I should not feel‘ myself bound by it.
I do not think Sir Edward Creasy himself wished that it shouldbe considered an authority. I .may refer especially to that partof it-which decides that because an easement had been enjoyed,
nec clam nec precario, under a!n agreement for ten years, that-thereby a title to it had been gained by prescription, as contraveningevery principle upon which the doctrine of adverse possession toobtain prescriptive title rests.
Then, again, that the branches of the tree'should be cut down andnot the trunk, as if it were the former only that grew and net thelatter, does not appear to have any common sense to support it.The case itself, however, is valuable for the learned research itdisplays and the authorities cited, which establish as clearly aspossible that by the Roman-Dutch Law no right of servitude canbe claimed in respect of an overhanging tree. The reason forit is plain, because the alleged servitude is not a fixed and definedone like that of an overhanging, beam, but an ever-varying onewith every moment of time and every change of position and bulk.I am therefore, I am glad to find, to decide this case upon' thewell-recognized principles of English Law, by which if a trespassis committed or a nuisance is created the right to" damages or tohave the nuisance abated is not dependent upon compensationto the -wrongdoer. I therefore set aside the judgment of theCommissioner, in which he orders the plaintiff to pay the worth ofthe trees ordered to be cut down. The plaintiff will have thecosts of this appeal!
MUTTIAH v. DIAS