NONEIHAMY v. SILVA et al

065-NLR-NLR-V-21-NONEIHAMY-v.-SILVA-et-al.pdf


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Present: De Sampayo-J. and Schneider A.J.
NONEIHAMY v. SILVA et al.
318—D. C. Qdtte, 15,427.
Usufructuary—Right to dig for minerals.
A usufructuary may dig for and extract minerals from the land,bat he is only entitled to the interest on the proceeds thereof.
I
h< this case the first plaintiff-appellant as absolute owner of l/32ndshare and of another half, which is subject to a life interest in
favour of the second respondent, of the land called Mulanegodabedda,alleged that the first respondent, who owned no share of the said land,had since September, 1913, acted in collusion with the second re-spondent, and had obtained and appropriated 700 tons of plumbago.The first plaintiff-appellant claimed a sum of Bs. 1,875 from the re-spondents, being the value of her share of the plumbago calculated atthe rate of Bs. 100 per ton, and after giving credit to the respondentsfor Bs. 10,000 for working expenses. The first plaintiff-appellant-further prayed that the respondents be ordered to bring into Courtthe value of half share of the second respondent, viz., the Bs. 30,000,or to give adequate security for the same.
The respondents denied that so much as 700 tons were obtained,and pleaded that in any event the first respondent was not boundto bring the value of the half share, viz., Bs. 30,000, into Court, orto give security for the same.
By judgment dated July 29, 1918, the appellant’s action wasdismissed as against the fiijst respondent, and the appellant wasdeclared entitled to receive a sum of Bs. 19.09 only from the secondrespondent, and the second respondent was further ordered to bringinto Court a sum of Bs. 305.40 only, which the Court assessed wasthe value of her half share.
The District Judge (L. W. C. Schrader, Esq.) delivered thefollowing judgment:—
In this case the minor plaintiff is entitled to a l/32nd part of the landMulanegodabedda and to a half, subject to the life interest of seconddefendant;—her grandmother Gimarah. In this land Louis (first defen-dant) has been mining for plumbago since ' September, 1913, on thestrength of an agreement entered into with Gimarah, witnessed andconsented to by the minor's next friend, and with the full cognizanceand assent of her mother, another co-owner. The arrangement was onein which- second defendant was held out as the sole -owner of the land,and gave first defendant permission to mine for a return of one-tenthshare of the yield to the owner. This he has done, and has rendered
.a list of receipts from the grantor showing that he has-
paid her in the aggregate of money and plumbago a total of Bs. 610.81as the one-tenth share.
1919.
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1919.
Noneihamyv. Silva
The next friend end hiswife instituted partition proceedings when
plumbago diggingwas prosperous, andobtained an injunction three
months before the expiry of the agreement, and the minor's next friendnow sues the license grantor and licensee for—
The payment of l/82nd share of the proceeds, which he calculates
at Bs.*1^876.
An order on defendants to tender security for the minor's half
share of the proceeds of the mining, or Bs. 30,000.
In the alternative, an order to bring into Court the whole proceeds.
Be. 60,000, to be kept for plaintiff, subject to second defendant's
usufruct.
The issues as to quantities arise; also whether the claim can befor shares of the output or of the ground share; whether the defendantsacted, in collusion to deprive the minor; whether the life interest whichsecond defendant enjoys entitled her to the use of the minerals absolutely,or whether she is bound to secure them or their value to the minor' andenjoy only the interest upon them; and lastly, whether the action ismaintainable against the first defendantfor securityin respectof
second defendant's obligations.
The case is complicated by reason of the fact that the minor'snatural . guardians, her mother Angohamy and the next friend—her secondhusband—acquiesced in and openly sanxjtioned 'this mining agreement.But it is conceded that this operates as no estoppel to the minor.
Therulegoverning theusufructuary’s rightover minerals and
stones on the property is stated by Voet, lib. VII,, tit, 1, 24, in the passage
" magi* estfructuarius solo tatium rutorum <B$orumque
pretio utatur, quamdiu vioit, aut exeo foenori collocato usuras perdpiat,finito usufructu pretium deducti* impensis proprietary redditurus. ”This is clear enough, and the amount agTeed upon as the ground share,which was presumably considered reasonable by the plaintiff, and is usual,must be regarded as the " pretium deducti* impensis For it is certainthat the mineral could not have been extracted by the defendant or inhernameon any other terms.Neithershe northeminor were capable
of working the mine on any other terms and gain a larger share ofthe profit. Andtheusufructuary has a perfect rightto exploitthe property
in this way.She is, therefore,boundto secure' tothe minor the half
share of the principal Bum or price.
Inregard to quantities extracted,I holdtheplaintiff's estimates
to be absolutely unfounded and unreliable. The four or five tons a daydeposed to_waa a pure exaggeration of the first defendant for his own purposeswhen an injunction was claimed, and the rapid output was strictly limited intime to the short period of June and early July. I agree that the receipts area very proper and good clue to the amount really taken out, and hold that itcannot have been more than the sixty or seventy tons during the' whole periodof the lease.
6. I have alreadyfound on the evidence thatthere wasno collusion
between defendants, to which the plaintiff’s mother and stepfather were notparties; that there was no intention of depriving the minor of her rights, r.sthe grandmotherhadevery intention of leaving, andthe partyexpected her
money to devolveon the minor. A quarrel has, however, sinceoccurred 'over
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the disposal of the plaintiff's hand in marriage, to that the family harmonyhat been diiturbed, with the usual result, that the daughter and son-in-law arevigorously preventing their mother-in-law from their rights.
With regard to the position of the first defendant, I am of opinionthat the action it not maintainable. As I have found, Voet makes itdear that the usufructuary is entitled to open mines end put the propertyto this use, so long as he only uses the interest of the money. The firstdefendant is only the instrument who opened the mines in her name.As miner he is entitled to the reward of his labour. It is the usufruc-tuary alone against whom the notion lies. The licensee was in no Bensea wrong-doer, nor his oot tortious. I think the passages from Nathancited reveal thefoot that the notion liesonlyagainstthe usufructuary;
certainly it cannot lie against the instrument. The first defendant mustbe discharged. He entered into a permissible and legitimate agreementwith the defendant, although not capable of being enforced at law byreason of itB want of notarial execution. But it was acted upon, andsuch action was lawful and within the compass of the contractingparties' rights. As licensee he isnot responsiblefor theobligationsof
the other partyor parties to the contract. Ianswerthe last issue in
the negative.
The a at ionis ^dismissed, with costs,asagainstfirst defendant,
payableby next Mend personally.The seconddefendant,isdecreedto
pay (a)Bs. 19.00 as the minor's l/89nd share,end (b)tobring into
Court the half share of the price received, to wit, Rs. 806.40, forplaintiff, subject to her own (second defendant’s) life interest.
The plaintiff aueoeeds only on one issue (the seventh), and is notentitledto costs. Ths whole casewas due to aquarrel,inwhichthe
minor (plaintiff) -has no ooncern. Theseparties will,therefore, bear
their own costs.
Samarawiokreme, for plaintiff, appellant.
A. 8t. V. Jayawardene, for defendant, respondent.
March 14, 1910. De Sampayo J.—
The faots involved in this ctas£ are the same as those in theconnected case No. 316, D. C. Galle, 15,426, save that the plaintiff,who is the Nonohamy referred to there, is a minor, and that thereis no estoppel operating against her. Nevertheless, the questionof liability practically remains the same. The first defendant,who dug for plumbago on the land, did so lawfully under the agree-ment with the second defendant. As stated in my judgment intho other case, it waB within the power of the second defendantto make the best use of the land of which it is capable, and theplaintiff must look for her share of the profits to the second defend-ant, who took-the whole. Even with regard to the half share ofthe land whioh belongs to the plaintiff, and over which the seconddefendant has an usufruct, the law does not make the miningunlawful. Maaedorp, vol. 8, p. 166, after referring to the variousauthorities, lays down that the usufructuary may dig for andextraot minerals from the land, but that he is only entitled to the
21/181M9.
Nontihamy
«.Mm
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1919.
0B SampayoJ.
Noneihctmy
v.Silva
^interest op the proceeds thereof, The District Judge has giveneffect to this- law by ordering that l/32nd share of the Bs. 610.81,which the second defendant received as ground share, should bepaid to the plaintiff, but that half of the sum should be broughtinto Court to remain in deposit subject to the second defendant’slife interest. In my opinion the judgment appealed from is right.Some complaint is made of the order requiring the next friend ofthe plaintiff to pay the first defendant’s costs personally. The.next friend is the second plaintiff in the other action. It is quiteplain that he is practically the party plaintiff himself, and thecircumstances disclosed do not justify any relief being granted to"him in respect of the costs of the first defendant.
I would dismiss the appeal, with costs, which also should be paidby the next friend.
Sohxeideb A.J.—I agree.
Appeal dienaeeed.