Present: Layard C.J. andJVendt J.
PILLAY v. FERNANDO et al296— D. C. Colombo, 19,170.
Servitude of light and air—May be acquired by user for the prescriptiveperiod— Window overlooking roof of adjoining house—Demolishingwall does not terminate right of servitude.
'Plaintiff, who had for over thirty years a window in his walloverlooking the roof of defendants* house, demolished the wall andrebuilt it.
Held, that the taking down and rebuilding of the wall did notdestroy plaintiff’s right of servitude.
A right of servitude of light and air may be acquired by prescrip-tion by mere enjoyment, just as much as any other servitude.Ncate v. Abrew 1 followed.
'J’HE facts appear from the judgment.
Dornhorst, K.C. (with him Elliott), for the defendants, appellants.Walter Pereira, K.C. (with him Seneviratne)y for the plaintiff,respondent.
Cttr. adv. vult:
October 13, 1905. Wendt J.—
The plaintiff and the defendants own adjoining houses in thePettah of Colombo, and the object of the present action is to restrainthe defendants from building on their land so as to interfere with theaccess of light and air to plaintiff’s house through a window in theplaintiff’s wall. The space enclosed by this window includes thatwhich was formerly enclosed by a smaller window in plaintiff’s old1 (1883) 5 S. G. C. 1Z8 ; Wendt 188.
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wall. That wall was partly taken down and rebuilt some five orsix years before action. The old window , was in the angle of agable wall and looked out on the roof of defendants’ house, whichwas at a lower level. Defendants having pulled down their houseare now building afresh on the site, and it would seem that theirnearest wall, of which plaintiff complained, is so close to plaintiff’sthat it will, if carried above the level of plaintiff’s window, un-doubtedly diminish the amount of light entering plaintiff’s premisesthrough it. The learned District Judge has limited plaintiff’s right(which he declares) to the dimensions of the old window, and hasenjoined defendants from building so as to interfere with that right.Hie defendants have appealed.
The District Judge had found that the old window existed un-interruptedly for over thirty years prior to the demolition andrebuilding of the wall. In fact, the erection of plaintiff's housewith the window in it appears to have occurred at a date beyondliving memory. It was not opened or used with the permission,express or implied, of the owners of defendants’ premises, andno acknowledgment of defendants’ right to interfere with it issuggested ever to have been made. Under these circumstances, theDistrict Judge held that plaintiff had made out his claim to haveacquired by prescription the right to the full access of light throughthe window—the servitude ne luminibus officiatur.
In appeal it was contended for appellants that the destruction ofthe original wall put an end to the servitude, if it had existed up tothat time, and that, as a matter of fact, the new window had notbeen proved to occupy the same position as the old. On the matterof law no authority was cited to us, and it seems only reasonableto hold, as we have done in cases of prescriptive title to land, thatsuch a title once acquired continues until divested in one of theusual modes of transferring dominium. Further, no wall can standfor ever, it must needs eventually be rebuilt, and it is difficult tosee why the taking down and rebuilding of it should be consideredto evince an intention of abandoning the servitude. On the questionof fact, the weight of the evidence supports the District Judge’sopinion that the present window, although larger in size, stands insubstantially the same position as the old.
The main question contested in appeal, however, was the questionof prescription. Appellant’s counsel contended that, the servitudebeing a negative servitude, plaintiff could not under the RomanDutch Law acquire it by prescription in virtue of any period ofmere enjoyment, however long; that plaintiff’s use of the lightwhich came to him over defendants’ premises involved no invasionof defendants’ rights, so long as defendants did not seek to buildhigher on their land ; and that therefore, in order to start prescriptiveuser, plaintiff must have resisted some attempt on defendants’part to exercise their right of building on the score that it would
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Or 13 190S
obscure bis light. This certainly appears to be the Roman Dutch-Law (Voet adPand 8,4,5). But in Ceylon the law of prescription hasbeen dealt with by Statute, and the Statute applicable to the presentcase is Ordinance No. 22 of 1871. In 1883 a case on all fours withthis came before the Supreme Court, consisting of De Wet A.C.J.,Clarence and Dias JJ. (Neate v. Abrew?) They agreed in holdingthat the plaintiff was entitled to restrain the defendant from buildingso as to obscure his windows. The learned District Judge, thoughinclined to question the soundness of that decision, properly ruledthat he was bound by it. And as a decision of the Full Court it isequally binding upon us. Doubts as to its correctness in law havefrom time been expressed, but it has never been over-ruled, nor,so far as I am aware have any Judges of this Court ever declinedto follow it. It has, in fact, been acted upon as law for over twentyyears. We cannot therefore now properly review it; thatmustbe leftto a higher Court. That case is indistinguishable from the presentand following it we must hold that defendants’ appeal fails. It isa cordingly dismissed with costs.
PILLAY v. FERNANDO et al