Present: Sohneider A. J.PERIES v. MUNASINGHE et al.
106—0. S. Colombo, 72,466.
Right of way—Extinction of servitude by merger—Subsequent sale of landsto different persons—Does right of way revive f
Where a person bought both the dominant and servient tene-ments with no intention oi any subsequent separation of the twotenements, and where he sold one land to plaintiff and the other wassold in execution to dtfendant’s predecessor in title.
Held, that the servitude (right of way], which had becomeextinct by merger, did not revive on the subsequent separation ofthe two lands.
r j THIS facts appear from the judgment.
A. St. V. Jayawardene, for plaintiff, appellant.
J. C. -Pereira, for defendants, respondents.
September 13,1920. Schneider A.J.-r-
The facts necessary for the decision of this appeal are these : OneEdirisuriya acquired title to a highland and to some fields. At thatdate the owners of the fields had acquired by prescription a right ofway over the highland to their fields. Edirisuriya owned andpossessed both the highland and fields for nearly twenty yearsbefore this action. In 1918 and 1919 he sold the fields to theplaintiff. Subsequent to the sale in 1918, viz., in 1919, his interestin the highland was sold in execution of a decree. The defendantsare now the owners of that interest by purchase from the purchaserat the sale in execution. The plaintiff since his purchase has usedthe path which existed along the highland without objection on thepart of Edirisuriya or the purchaser at the sale in execution. Uponthese facts the only question is, whether the confusion or merger ofthe right of servitude enjoyed by the owners of the fields by theacquisition of those fields by the owner of the servient tenementwas revived by his sale of the fields to the plaintiff. The Com-missioner dismissed the plaintiff’s action on the ground that theservitude had been lost by merger.
Mr. Jayawardene, for the plaintiff, appellant, contended that theservitude was revived for two reasons, because (1) Edirisuriya in hisconveyance to the plaintiff conveyed the right in question in expressterms, (2) the law is that the right revives in such circumstances asthose of this case, apart from any express agreement to revive.
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As regards the first of these reasons I have no hesitation inholding that the deed of conveyance by Edirisuriya in favour of theplaintiff does not expressly convey a right of way over the highland.The deed is on a printed form, and contains within the printedportion no more than the usual words of conveyance of servitudesto be ,found in all deeds conveying' title to land. Besides this, thelanguage of the deed dearly refers to rights which are in existence,and cannot be construed as reviving rights which had ceased toexist. Nor can the contention prevail for the second reason.
Under our common law there is no room for any doubt that theservitude became extinct by confusion or merger by the same manbecoming owner.both of the dominant and of the servient tenement.1There is no local enactment to preclude the common law fromoperating to create this merger. Therefore the question remainingis, whether the merger afterwards ceased and the servitude wasrevived after the sale to the plaintiff.
The law on the point according to Voet is summarized correctlyby Maasdorp in The Institutes of Cape Law:—2“ If the merger was not intended to be permanent, as where arevocable ownership of the dominant or servient tenementhad 1>een acquired, it must be held that servitudes whichwere extinguished by the merger will be revived after theseparation. On the other hand, if the merger took placewithout any contemplation of any future separation, unlesssome new cause should supervene and separation doesafterwards take place, the servitudes, which have beenextinguished by the merger, will remain extinct.”
Voet aftpr stating the principle which should be applied, proceedsto say:—3
“ On the other hand, if the fusion has been made with no intentionof any subsequent separation of the two tenements, unlesssome new cause arises (whilst the dominant or servient-tenement has been acquired by the owner of the othertenement, whether servient or dominant, without any inten-tion of again parting with the property so acquired), andthen after all the two tenements become separated, theservitudes which the fusion destroyed are hot revived bysuch separation, unless it was specially agreed that theyshould be revived ; and this happens in every case where aman simply purchases a tenement subservient to his own,and then afterwards alienates one or the other of them.”
In the circumstances of this case, the fusion of the two tenementsappears from the first to have been effected with the intention thatit should be perpetual. Edirisuriya possessed both for over twenty
1 YoSt, Com. ad Pan, S9 6, 2.9 Bk. 2, Chap. XXVI., p. 216 (Ed. 1903.)
9 Commentarius de ParuUctas, Booh Tit. 6t para. 3,
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years. He held each under an absolute title, and not conditionally 1920.as in the examples given by Voet. Hence it is a case where thefusion was made .with no intention of any subsequent separation AJ.of the two tenements.„"7“
The point was raised by Mr. Pereira, for the respondents, whether Munaainghethe Roman-Dutch law of the revival of servitudes which had beenmerged had not been modified by our Ordinance No. 22 of 1871, theeffect of which is to extinguish a servitude which is not used for aperiod of ten years. I do not consider it necessary to decide thiscontention in view of my opinion that the servitude was lost bymerger otherwise and was not revived by the sale of the fields tothe plaintiff.
I dismiss the appeal, with costs.
PERIES v. MUNASINGHE et al