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PERERA at al. v. GUNETILLEKE et pi.D. C., Colombo, 8,099.
Sight of way—Obstruction by act of God—Prescription—Servitude—Bights ofperson prevented from using path over which he has had a right of way—Using force in assertion of civil rights.
Where a pathway was obstructed by the act of God in the shape offloods, held, that an obstruction so caused did not constitute such aninterruption of the user as to disentitle the party claiming the rightof way to the benefits of the Prescription Ordinance.
Where a person establishes that he has used a way as of rightopenly and continuously for a long period and is forcibly preventedfrom further using it, he is entitled to an injunction to restore himto the quasi possession of the way, irrespective of whether or nothe can establish the existence of a servitude.
The necessity of Courts being strict in discountenancing all attemptsto use force in the assertion of civil rights pointed out.
HIS was an action for a declaration that plaintiff is entitledto a right of way for the purpose of a footpath, and also for
the purpose of driving his cattle along it. The facts of the casein detail appear in the following judgment of the Chief Justice.
Wendt, for appellant.
Dom.horst.and W. Pereira, for respondent.
The plaintiff in this action is the owner of a piece of land,which is almost surrounded by canals. It is not directly incommunication with any public road. It has the defendant’sland on the west and part of the land of another person onthe south. The nearest way to the public road is across theland of the defendants. The plaintiff bought this land someforty years ago, and he has a house or hut on it and a sawpit;and his case is that during the whole of the time he and hisworkmen have been in the habit of taking a. short cut across thedefendant’s land in a well-defined track. He further says thathe has been in the habit of letting out part of this land for graz-ing purposes to a milkman, and that the milkman has been in thehabit of bringing his cows to, and taking them away from, thegrazing ground across the defendant’s land by that well-definedtrack. This state of things continued up to June, 1895, when healleges that the defendant put up a fence of bamboos and thornsand obstructed the path. The defendants denied firstly that thereever was a path; and secondly, that they ever blocked up that
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1900. path. The plaintiff claims a declaration that he is entitled to thisAugust S. way for the purpose of a footpath and also for the purpose of"driving cattle along it, and prays for an injunction.
At the trial two issues were framed. The first issue was: Hasthe defendant put up a fence over a private right of way, or hasthe fence been standing, as the defendant alleged, for twenty yearsand upwards? The second issue was: Has the plaintiff a right ofway?
Plaintiff proved that he and his workmen had used this path fora considerable! number of years, and that his tenants and licenseeshad used it for a long period for driving cattle to and from theplaintiff’s land. The surveyor who surveyed the place on behalfof the plaintiff for the purposes of this action found evident tracesof a well-defined path, which, however, were not found by thedefendant’s surveyor. The defendant swore that there never wasa path, and that the so-called obstruction was a fence of longstanding, but the Acting District Judge did not believe him andfound for the plaintiff as to the existence and user of a path andits obstruction by the defendant. But he held that the right ofway claimed by the plaintiff had not been established, because itappeared that the, pathway was occasionally obstructed, not by theact of the defendant, but by the act of God in the shape of floods.He therefore came to the conclusion that, under surch circum-stances, no right of way could be established, and he dismissed theplaintiff’s action.
Mr. Dornhorst, who argued the case for the defendant, admittedthat he could not support the decision on this ground, but hestrenuously maintained that the evidence did not support theplaintiff’s case, and that the plaintiff ought to establish his rightof way before he is granted the injunction which he seeks. Butit seems to me that where a person establishes that he has used away as of right openly and continuously for a long period, and isforcibly prevented from further using it, he is entitled to aninjunction to restore him to the quasi possession of the way,irrespective of whether he can establish the existence of aservitude (Vocl 49.1.91). We will treat this action as a possessoryaction and grant an injunction which will restore the status quoante.
I fee! that there is force in Mr. Dornhorst’s contention, thatalthough the Acting District Judge decided that there had been ade facto user, there is no decision that that user was dc jure, and wetherefore leave that question open. The defendant may, if he is soadvised, institute an action to have it declared that his land is freefrom any such servitude.
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In a country like this any attempt of parties to use force in themaintenance of their rights should be promptly discouraged,Slight brawls readily blossom into riots with grievous 'hurtand murder as the fruits. It is therefore all the more necessarythat Courts should be strict in discountenancing all attempts touse force in the assertion of such civil rights as are in dispute inthe present case.
The order will be that the defendant be restrained from inter-fering with the use by the plaintiff and his workmen, servants,agents, &c., of this footpath for passing and re-passing on foot andfor driving cattle to and from the plaintiff’s land.
The circumstances of this case are peculiar and to me novel.It appears that between plaintiff’s land and a public path, knownas the dewata road, the land of the defendants is situated.Plaintiffs own land has been put to two useful purposes: it isused as a grazing land for cattle, and it has on it a pit for sawingtimber.
It is proved to my satisfaction that, at least for several yearsbefore the obstruction complained of, the plaintiff’s sawyers usedto come from the dewata, the road across defendant’s land, alongthe path shown in plan produced by plaintiff’s surveyor, to sawtimber on plaintiff’s premises.
It is also proved, at least by one witness, that for a great manyyears he has been in the habit of taking his cattle along that pathto graze on plaintiff’s land. It seems he paid plaintiff for thisprivilege. I do not think it makes much difference whether heused plaintiff’s ground as a tenant or as a licensee. I call this casenovel, because in all other cases I am acquainted with the claimantto a right of way has gone to and from his own land and acrosshis neighbour’s ground to draw water, or farm, or do something ofthe sort. It is the converse here.
Other people have come to and from plaintiff’s land to use thesawpit or to graze their cattle. I confess I see no difference inprinciple between the two cases. In either case the right of wayinures to the plaintiff for his manifest convenience.
As the judge in the Court be'.ow has not been convinced thatthis alleged right of way has been exercised for ten years beforeaction began, J agree with the Chief Justice .that we ought tolimit the decree to that form which the plaintiff has asked for,viz., an injunction restraining defendant from obstructing the freeuse of the said way by the plaintiff, and directing him to removethe obstruction. We do no more than restore the status in quo.
PERERA et al. v. GUNETILLEKE et al