PEIRIS v. INHABITANTS OF VILLAGE COMMITTEE, PALUWA PERUWA

014-NLR-NLR-V-40-PEIRIS-v.-INHABITANTS-OF-VILLAGE-COMMITTEE,-PALUWA-PERUWA.pdf


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Peiris v. Inhabitants of V.C., Paluwa Peruwa.
1938Present: Keuneman J.
PEIRIS v. INHABITANTS OF VILLAGE COMMITTEE,PALUWA PERUWA.
166—C. R. Gampaha, 7,186.
'Via vicinalis—Unproclaimed public road—Immemorial user—Roman-Dutch. law.
In Ceylon a via vicinalis may be acquired by immemorial user.
A via vicinalis is an unproclaimed public road and no terminus ad quernIs necessary to constitute such a road.
Fernando v. Seneratne (33 N. L. R. 346); Samarasinghe v. Chairman,V. C., Matara (34 N. L. R. 39) referred to.
T
HE plaintiff sued the defendants for a declaration t.1”'' the latterwere not entitled to a cattle-track across the plaintiff’s land. The
defendants in their answer alleged that by immemorial user they wereentitled to a public path and cattle-track across the land.
The Commissioner of Requests dismissed the plaintiff’s action and'declared the defendants entitled to the cattle-track claimed by them.
F. A. Hayley, K.C. (with him Cyril E. S. Perera), for plaintiff,appellant.—The evidence is such as to establish nothing more than a rightof footpath which is conceded. User as a cattle-track is not proved. Nowitness has been called who drove his cattle across the land in question.Vague and indirect evidence that cattle had been driven along the track
> (1909) 12 N. L. it. 304.
KEUNEMAN J.—Peiris v Inhabitants of V.C., Paluwa Peruwa.
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is insufficient to establish a public right as against the owner of the land.The user must be shown to be adverse and as of right, not permissive.In any event this being a right of way claimed on behalf of the public itmust be shown the cartway led from one public highway to another.The evidence seems to indicate that here is nothing more than a cul-de-sacand that the terminus ad quem is nothing more than some fields belongingto private parties. In such a case no public right can be established byevidence of user, with nothing more by the public. Attorney-General v.Antrobus (the Stonehenge case) 1 and Whitehouse v. Hugh °. See in thisconnection Attorney-General v. Sewell’. The something more which isnecessary to be shown would be, for instance, evidence of dedication tothe public or evidence of maintenance by a public body. In the absenceof such evidence no public right can here be said to have been established.
N. Nadarajah (with him G. E. Chitty), for defendants, respondents.—It is clear upon the evidence that the inhabitants of the village have usedthis track as a cartway for a period beyond living memory. It is notnecessary to show that the whole world used it. We have here a clea.rexample of what was known to the Roman-Dutch law as a via vidnalis .or neighbours’ road, even if it were held not proved to be a via publicaproper. The distinction however has not been meticulously drawn byour Courts and a via vidnalis may be prescribed to in our law, by theinhabitants of a village. See Maasdorp’s Institutes of South AfricanLaw (5th ed.), voir III., pp. 207 and 212, and the cases of Fernando v.Senaratne and Samerasinghe v. Chairman, Village Committee, Matara.It is an inconsistent position while conceding a' right of public footpath todeny a cattle-track bn the mere ground that both termini are not publichighways. That objection if valid should apply to both cases, but it issubmitted that a via vidnalis may be established, as here, even despitesuch an objection. The evidence shows that the witnesses, some of whomare very old inhabitants of the village, speak to the existence of thecattle-track and its user as such for a period as far back as they canremember.
F. A. Hayley, K.C., in reply.—Cur. adv. vult.
March 17, 1938. Keuneman J.—
The plaintiff sued the defendants for a declaration that the defendantswere not entitled to a cattle-track across the plaintiff’s land Milagahawatta.The defendants in their answer alleged that by immemorial user they wereentitled to a public path across the land in question for passing andrepassing on foot, and for leading cattle to and from the fields.
At the trial the principal issue framed was: “ 1. Are the defendantsentitled' to a public footpath and cattle-track over the plaintiff’s landalong the route A, C, D, E marked in plan No. 912 dated October 10, 1936,by right of immemorial user”. The plan in question was marked D 1.After, trial the learned Commissioner dismissed plaintiff’s action withcosts, and declared the defendants entitled to the cattle track claimed ofthe width of 5 feet. The plaintiff appeals.
L. R. (3.905) 2 Ch. 188; 74 L. J. Clt. 599; .92 h. T. 790.
L. R. {1906) 1 CH. 253 ; 75 L. J. Ch. 154; 95 L. T. 170.
2 88 L. J. Ch. 425; 120 L. T. 363.
5€
KEUNEMAN J.—Peiris v. Inhabitants of V. C., Paluwa Peruwa
Before the Surveyor the plaintiff acknowledged the existence of a public-right of foot path over his land, but denied that there was any right of-cattle-track, and at .the appeal Counsel for plaintiff conceded that thepublic right of footpath existed, and restricted his appeal only to thedenial of the right of taking cattle over the track in question. Atthe trial several witnesses were called on both sides. The learnedCommissioner accepted the evidence of the witnesses called for thedefendants and rejected the evidence of the plaintiff’s witnesses.One of the witnesses called for the defence Biyoris Appuhamy was 75years of age. He stated that at one end of the track in dispute was aVillage Committee road which led to the Colombo-Kandy road. At theother end of the track were fields and beyond the fields the village oflhalayagoda. Witness said he knew from his childhood that the inhabi-tants had been using the cattle track in question to take cattle. Besideschildren had regularly used the track to go to and from school, andfunerals had also been taken along the track to lhalayagoda. He furthersaid that the people of the village had always been using this cattle-track,to take cattle to the village. Till the obstruction the inhabitants oflhalayagoda had been continuously taking cattle to the fields along thecattle-track in dispute. Witness added that in 1889 the present plaintiffhad obstructed the cattle track at point A by erecting a fence. Witness’father and 123 other villagers including witness had then petitioned theGovernment Agent and as a result of this, the plaintiff had removed theobstruction. Witness produced the letter D 2 dated October 21, 1889,from the Government Agent, which refers to the track in question as“ a village path ”. Another witness' K. D. Carolis, Police Vidane, aged59 years, also gave evidence and stated that the people of lhalayagodawho owned fields in the village had been using the track to drive cattle.He knew personally that for the last 30 or 35 years cattle had been takenalong the track in question, and he did not .remember the time when thecattle-track first began to be used. Besides the track was used by schoolchildren, and dead bodies were taken over the track for burial at lhala-yagoda.
Another witness Elaris Appu, 59 years of age, who lived at lhalayagodaacross the field, said that from the time he remembered anything, peoplehad been regularly driving cattle along the cattle-track in question; andthat the people who lived at lhalayagoda across the field always drovecattle along the track in question when taking them to the Colombo-Kandy road. The track had also been used for funerals and by childrengoing to and coming from school. Witness had himself driven borrowedcattle over the plaintiff’s land. Witness added that there was a publicfootpath along the big ridge across the field, and access to the footpathwas from plaintiff’s land. The ridge was 2 to 5 feet broad, and cattlewere taken along the ridge from one field to another.
It was argued by appellant’s Counsel that this evidence was insufficientto establish a right of cattle track. It is true that witnesses did notdefinitely say that "they saw cattle being driven, but their evidenceindicated that they were speaking to matters of personal observation,in fact Elaris Appu said he had actually driven cattle across the trackhimself and no attempt was made in cross-examination to show that the
KEUNEMAN J.—Petris v. Inhabitants of V. C., Paluwa Peruwa. S7
'witnesses depended on hearsay. Nor can any adverse inference bedrawn from the fact that the document D 2 refers only to “ a villagepath ”, for Biyoris Appuhamy swore to the fact that long prior to 1889the path had been used for taking cattle along, and had been blocked inthat year by the plaintiff himself. Strangely enough plaintiff did not gointo the box to refute this allegation.
It was further argued by appellant’s Counsel that there was no publicright of way established, because the evidence disclosed that the cattlewere driven by the villagers along the track to their private fields, andnot to any place where the public as such had a right to be. Greatemphasis was laid on certain English cases. In Attorney-General v.Antrobus (the Stonehenge case) 1 Farwell J. said: “ Now the casesestablish that a public path is prima facie a road that leads from onepublic place to another public place—or as Holmes L.J. suggests in theGiant’s Causeway case there cannot prima facie be a right for the publicto go to a place where the public have no right to be. But the existenceof a terminus ad quern is not essential to the legal existence of a publicroad.—But in no case has mere user by the public without more beenheld sufficient ”. The something more may be express words or conductinducing expenditure on the track in question, and so showing that thecul-de-sac has been dedicated to the public. Similarly in Whitehouse v.Hugh *, and Attorney-General v. Sewell *, it was held that in the case of a.cul-de-sac user alone' was not sufficient to constitute dedication.
I am not however clear that these decisions which affect the Englishlaw have any application in Ceylon. Under the Roman-Dutch law twoclasses of public roads were recognized: (1) the via publica which had beenproclaimed as such by the proper legal authority; (2) the via vicinalis,originally made up of contributions of the ground of private land ownersand which had existed from time immemorial. Maasdorp points out adifference between this and other public roads in that “ the latter havetheir exit or terminus on the sea-shore, or in cities, or on the banks ofpublic rivers, or in other public roads, whereas a via vicinalis^had its oneend on a public road and the other end gradually disappearing and losingitself without any exit. In other words a via vicinalis was a road leadingfrom .a proclaimed public road to a number of neighbouring farms, andused by -the owners of such farms in common under an express or impliedagreement to that effect ”. Maasdorp adds further “ the differencebetween these and proclaimed roads is that in the latter the rights of thepublic are a matter of ownership exercised through the Divisional Councils—whereas in the former they are a matter of servitude exercised by eachmember of the public in his own right. Every person therefore who hasland abutting on to a via vicinalis or who has a rights of abutment on tosuch road is entitled to use the same, but not also persons whose landdoes not abut on to such road ”. And further “ unproclaimed publicroads are acquired by the public either by express grant coram lege loci orby immemorial usage”. (Maasdorp’s Institutes of South African Law(5th ed.), pp. 212 and 213.)
1 L. It. (1905) 2 Ch. 188; 74 L. J. Ch. 599 ; 92 L. T. 790_
* L. R. (1906) 1 Ch. 253 ; 75 L. J. Ch. 154; 95 L. T. 175.
*88 L. J. Ch. 425; 120 L. T. 363.
58 KEUNEMAN J.—Peiris v. Inhabitants of V. C., Palutos Perutoa.
I do not think it is necessary in this case to consider what persons havethe right to use the* via vicinalis. The important matters laid down byMaasdorp are that such a road is a public road, and that it is acquired byimmemorial usage, and that no terminus ad quern is needed in the case ofsuch a road.
In Ceylon it is doubtful whether any distinction was drawn between theproclaimed road and the unproclaimed road, i.e., the via vicinalis. Bothclasses of roads were treated, as public thoroughfares, vide Fernando v.Seneratne ’. In this case Garvin J. went further and held that a partitiondecree would not extinguish a public path in the nature of a via vicinalis,unless the Crown was a party to the decree. “ A public road is notmerely a matter of servitude. It is something corporeal and as such thesubject of ownership and extends at least to the surface and the wholearea of user if indeed it does not extend to the freehold. To the extent towhich it is the subject of ownership, a public road is the property of thepublic, that is of the State, and cannot be affected by a partition decree ”.
This judgment is of importance. If the via vicinalis consisted only ofa bundle of individual rights of abutting landowners, there was no reasonwhy these rights should not be extinguished by the partition decree.The judgment postulates that the property in such road is vested in thepublic, that is, in the State.
In the present case the evidence even of the first two witnesses I thinkestablished the existence of a via vicinalis which must be regarded as apublic road vested in the State. The defendants have succeeded inproving the existence of a public cattle track along the points indicatedby them.
I may also refer to the case of Samarasinghe v. Chairman, V.C., MataraIn that case as in the present case the plaintiff sought to have it declaredthat there was no public path over his land. It was proved that theretwas a road of the nature of a via vicinalis, and it was decided that wherethere was proof of user for a considerable time, there was a presumptionof immemorial user. The plaintiff’s action was accordingly dismissed.In Fernando v. Seneratne {supra) there was clear proof of user forover one third of a century. In South African cases presumption ofimmemorial user has been drawn when user has been proved for thirtyyears and upward, vide Ludolph v. Wegner“, and Peacock v. Hedges'. Inthe present case there has been user as of right from well before 1889,and no starting point of such user has been shown. I am satisfied thatthe presumption of immemorial user can be drawn and has in no way*been rebutted. I am of opinion that in Ceylon nothing further is neededto prove a via vicinalis except immemorial user or express grant.
I may add that on the evidence not only has it been proved that oneend of the track in question joined the Village Committee road which ledto the Colombo-Kandy road, but also that at the other end there was aridge, which was a public path along which cattle were driven as of right.This was established by the evidence of Elaris Appu, who said that theinhabitants of Ihalayagoda, as long as he knew- had driven their cattle!from the village, along the ridge, which was a public path, and then across1 33 N. L. R. 346.* 6 S. C. 198.
*84 N. L. B. 39.* {1896) 6 Buchanan 70.
MAARTENSZ J.—Wijeygoonewardene v. De Silva.
plaintiff’s land, and thence to the Colombo-Kandy road. In the light ofthis evidence the track in dispute is not a cul-de-sac, but a thoroughfare inthe fullest sense of the word. The language of Garvin J. in Fernando v.Seneratne (supra) is all the more relevant. "Every public path is apublic road within the meaning of the Public Thoroughfares Ordinance,No. 10 of .1861, and I am aware of no difference in the legal status of thedifferent types of public thoroughfares. All public roads includingpublic paths are vested either in some local Government authority or inthe Provincial and District Road Committees”.
From whatever angle the evidence is regarded I think the learnedCommissioner’s finding that the existence of a public track has beenestablished is justified.. I accordingly dismiss the appeal with costs.
Appeal dismissed.