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June 14 and
NICHOLAS v. HAPPAWANA TERUNNANSE.
P. C., GaUe, 4,134124,761.
By-law-^—Mtmicipal Council—Overhanging, tree—Private nuisance—'Ultra vires—Ordinances Nos. 17 of 1865 and 7 of 1887—Ob-struction.
A by-law authorizing the Municipal Council to cut down treesoverhanging, and likely to prove dangerous to, private property isultra vires ; and a person who resists a Municipal officer in theexecution of such a by-law is not liable to conviction.
rjIHE facts sufficiently appear in the judgment.
Jayawardana, for accused, appellant.
Wendt, A. S.-O. (Bawa with him), for the Municipal Council;
24th June, 1897. Withers, J.—
The accused has been found guilty of obstructing two officersof the Municipality while engaged in their duty under the authorityof by-law No. 2, chapter XXIV.
They had come to cut 'down a cocoanut tree which grew on hispremises and threatened to fall on a house in the next garden.The two lands are private premises over which the public has noright of way.
If that by-law is valid the conviction will stand, if not, theaccused must be acquitted. The by-law is in these terms :—
If any fruit tree or any part of a tree within the limits of the Munici-pality be deemed by the Council to be likely to fall upon any house orbuilding or to endanger the occupiers thereof, or if the same be nearany road or street and likely to affect the safety of passengers goingalong or using such road or street, it shall be lawful for the MunicipalCouncil to cause notice in writing to be given to the owner or to the.' occupier of the ground upon which the tree stands to remove the saidfruit, limb, or tree; and if such owner or occupier do not begin to takedown the same within twenty-four hours after such notice and completethe work with the due diligence, the Council shall cause the work to bedone; and upon the Chairman of the said Council certifying to theBench of Magistrates of the Municipality of Galle the costs which havebeen bond fide incurred in effecting such removal, such Court shallsummon the owner and occupier aforesaid to appear before it on acertain day, then and there to ma^e payment of the costs which shallappear to such Court to have been properly incurred in that behalf,and upon failure to pay the amount of such costs, the same may (berecovered as if it were a fine imposed by the said Bench of Magistrates.
( 347 )
This by-law was made upon the authority of the 35th section of■ the Ordinance No. 17 of 1865, which enacts that it shall be lawfulfor each Municipal Council to make such Municipal by-laws as itmay deem expedient for any of the following purposes. Thirteenare mentioned, but it was conceded that the first part of this by-lawcould only be brought within the last purpose, namely, for “ every“ other purpose which may by the councillors be deemed necessary“ for the duly carrying out of the provisions of this Ordinance.”
This Ordinance was repealed by Ordinance No. 7 of 1887, whichkept alive the by-laws of the late Councils in force at the cominginto operation of this Ordinance not inconsistent with its ownprovisions. We must then see what the provisions of OrdinanceNo. 7 of 1887 are.
This Ordinance contains the provisions of many old by-laws.It is significant that no regulation of a similar character' to theby-law in question is to be found in it.
The provisions of the Ordinance No. 7 of 1887 relate to thepurposes for which the Council may spend funds, which may besummed up in the words of sub-section (e), section 46 : “ All matters“ necessary for, or conducive to, public safety, health, or con-“ venience.” Then it provides for them powers and duties undersection 80, and then powers to make by-laws under section 122.The objects then, if analysed, are all found to be of a publiccharacter. The prevention or abatement of public nuisances isspecially provided for. I can find no hint of dealing with whatmay be called “ private nuisances.” There is always a clear linebetween what concerns individuals and what concerns the public.
The Ordinance sanctions, and properly sanctions, the entrance 'on private grounds of Municipal officers, but in every case withthe object of conserving the public-good or preventing harm ofany sort from affecting the public. If the Municipality may stepin to prevent my tree from falling on my neighbour’s house inthe next garden it may step in to prevent my own tree falling onmy own house, or to prevent some accident to myself, from theruinous condition of my own house. Legislature aimed to pro-tect one person from the consequence of what may be a nuisance■on the part of his neighbour, but which does not affect or concernthe general public in the least degree, was not intended, I imagine,by the Municipal Councils’ Ordinance. The person who is threat-ened by Sis neighbour’s overhanging tree "has a simple remedyin hi§ own hands.>*
Hence, in my opinion, that part of the by-law in question whichrelates to overhanging trees in purely private places is invalid. 1,therefore, set aside the conViction and acquit the accused.
June 14 and24.
NICHOLAS v. HAPPAWANA TERUNNANSE