076-NLR-NLR-V-61-ROSALIN-FERNANDO-Appellant-and-P.-L.-P.-ALWIS-and-other-Respondent.pdf
¥. S. B*ER3TAlftX), j.-—Rosaiin Fernando v. Atone
302
1957 Present; H. N. G. Fernando, J.f and T. S. Fernando, J.•BOSALIN FERNANDO, Appellant, and P. L. P, ALW1S and others,
Respondents
S. O.120—D. C. Panadure, 2375
Servitude—Way of necessity—-B-urden of proof.
In a claim made by the plaintiff for a right of footway of necessity to enableher to obtain access from her land to the nearest public road—
Held, that when a Court is called upon to decide a question of the grant of aright of way of necessity a proper test to be applied is whether the actual-necessity of the case demands the grant of the right of way. In such a caseit is not necessary that the plaintiff should establish that the way claimed isthe only means of access &om his land to the public road. If an alternativeroute is too difficult and inconvenient, the actual necessity of the case is thedetermining factor.
^r.PPEAL from a judgment of the District Court, Panadure.
II. W. J ayewardene, Q.G., with P. Ranasinghe and P. K. Idyanage,
for the plaintiff-appellant.
R. S. R. Coomaraswamy, with E. 3. Vannitaniby, for the defendants-
Cur. adv. wit.
respondents
July 25, 1967. T. S. Febnajstdo, J.—
The plaintiff instituted this action claiming a right of cartway of neces-sity, 8fb. in width, over lots marked “ X ” and " Y ” of the defendants’land depicted in plan P.l to enable her to obtain access from her landto the nearest publie road, Gkmananda Place. As an alternative, sheclaimed a right of footway of necessity, 4ft. in width, over lot “ Y ”referred to above. The learned District Judge dismissed the plaintiff’saction, and it may be stated at once that we do not consider that she hasestablished any case entitling her to judgment in respect of the right-of cartway claimed by her. The only question that merits considerationon this appeal is whether she has satisfactorily established her claimto a footway of necessity.
The principle of our law governing the decreeing of a right of way ofnecessity is quoted in the judgment of this Court in De Vaas v. Mendis1as follows :—-
“ All lands which do not abut upon a high road or a neighbour’sroad are entitled to a road of necessity… If a man’s land does not
abut on a high road or a neighbour’s road, the Court wil* grant hima necessary road whereby to reach the high road by the shortest way andwith the least damage.”
1 (1948) 49 N. L. B. at 527.
T. S. FERXAjSTDO, J.—Soaalin Pemando v. AtvnsSOS
The lands intervening between the plaintiff’s land and the nearest publicroad (Gunananda Place) belong to the defendants, the 1st defendant’sfather-in-law G. S. Fernando, Rev. Stembo and Mrs. Goonewardenerespectively. The lands of G. S. Fernando and Rev, Stembo are so builtupon already that it is not possible to carve out a footpath over either ofthese lands to enable the plaintiff to enjoy a means of access to GunanandaPlace. Rev. Stembo has, moreover, already successfully asserted in acourt of law that the plaintiff in not entitled to a right of way over hisland. Access over Mrs. Goonewardene’s land which adjoins the westernhalf of the southern boundary of the plaintiff’s land, even if it had beenclaimed, would have involved a much longer stretch of land and a morecircuitous route than over the strip marked “ Y” in plan P.l. The onlyside of the plaintiff’s land which is not land-locked is the western which,unfortunately, has the sea shore for its boundary. While the learnedtrial judge has not been unappreciative of the difficulties experiencedby the plaintiff at present, he has decided the case against her on accountof the view he formed that it is not impossible for the occupants of thehouses standing on the plaintiff’s land to obtain access to a public roadvia the sea-shore. The plaintiff sought to shew that during the dryweather the heat of the sun makes it impossible, particularly for the chil-dren living on her land, to walk to and from school on the heated sea-sand;and during the periods of the monsoons, she complained, the sea is sorough and heavy as to make the waves reach the boundary of her land.It would also appear that an attempt by the Urban Council to constructa road along the sea-shore has proved abortive as a result of the lackof co-operation or enthusiasm on the part of owners of land (among whom,be it said, the plaintiff was not one) abutting the road so proposed.
The plaintiff’s action claiming a right of footway was dismissed by thelearned trial judge on the sole ground that the plaintiff had failed todischarge the rather heavy onus that lay upon her to satisfy the Courtthat the “ absolute necessities ” of the case demanded the grant of theright of way claimed. A reference to “ absolute necessity ” appears incertain judgments in South African cases in respect of claims for rightsof way, but “ absolute necessity ” does not appear to my mind to involvein these cases a requirement that the plaintiff should establish that theway claimed is the only means of access from his land to a public road ora neighbour’s road (via vicinalis). De Fillers C. J. in London and JS. A.Exploration Co. v. BuUfontein Mining Co.1 stated that the Court hasmore than once decided that a servitude of necessity cannot be claimedbeyond what absolute necessity requires. The same learned judge, tenyears later, in the case of Van Schalkioijk v. Du Plessis and others a saidthat the Court has never laid down any definite rule as to what circum-stances would constitute a necessity nor was it advisable that such a ruleshould be laid down. He did not go so far as to hold that there can beno road of necessity over a neighbour’s land unless the only possibleapproach to a public road is over such land. In his own words, “ theremay perhaps be cases in which the alternative route would be so difficultand inconvenient as to be practically impossible, and in such cases the
1 (.1890) 8 S. G. at 60.
a {1900) 17 B. O. at 464.
804T. S. S^ilNAjtDO, J.—Bbsalin Fernando v. Alvne
Court might be justified in affording relief subject to compensation andthe other restrictions mentioned by Voet (8:3:4) Another and tomy mind, a simpler expression was used by the same learned judge in anearlier case Pea-cock v. Hedges1 where he stated that “ the authorities inthe Roman-Dutch law clearly shew that a right of road of necessity canbe claimed no further than the actual necessity of the case demandsIf I may say so, with great respect, this simpler and more readily under-stood expression appears to afford an easier test to be adopted when aCourt is called upon to decide a question of the grant of a right of wayof necessity.
Learned counsel appearing for the appellant has urged upon ns thatthe alternative route via the sea-shore is so difficult and inconvenientthat, having regard to the facts in this case, we shall be justified in takingthe somewhat unusual course of interfering with the conclusion of factreached by the learned trial judge. I have, therefore, to enter upon anexamination of (a) the circumstances relied on by the plaintiff to establishthe burden that undoubtedly lay upon her to show that the actualnecessity of the case demanded the grant to her of the right of footwayclaimed and (6) the circumstances pointed to by the defendants asnegativing such a right.
Gd the plaintiff’s land, which is about half an acre in extent and issituated in the heart of Panadure, stand two houses in one of which liveher parents and her sister with three children. In the other lives anothersister with her seven children. At the time of trial seven of these tenchildren were attending schools in Panadure, and for these childrenaccess to and egress from the houses are possible only by going along thesea-shore from the western comer of the plaintiff’s land for a distance ofabout 143 yards until they reach the place where a public lane in front ofthe Magistrate’s bungalow meets the sea-shore. Prom this place theycan get on to the public lane and thereafter to other public roads. Itwas urged on behalf of the plaintiff that the sea sand gets so heatedin midday that the soles of the children’s feet get burnt. It was furtherurged that (i) during monsoon weather access to and from the houseswas not possible on account of the fact that waves reached the plaintiff’swestern boundary, and (ii) the plaintiff desired to erect other buildingson her land and that the present mode of access to the land makes itimpossible for materials to be transported thereto. It is incontestablethat carts and other vehicles cannot be brought to the land along thesea-shore. I leave out of account other reasons urged on behalf of theplaintiff such as the necessity of access to her house for the patients of herhusband who is an Ayurvedic physician. The plaintiff and her husband. do not reside on this land at present, and the learned District Judge quiterightly points out that, if her husband’s practice is as large as has beenstated, there is no reason why he cannot continue to practise his profes-sion living at Horakelle, Moratuwa, as he is now doing.
The claim of the plaintiff to this right of way was resisted by thedefendants on grounds which have been examined by the trial judge andrejected as being specious, and it is not necessary upon this appeal to* {1876) 6 Buchanan's Cape S.CJ3. at 69.
T. S. FERNANDO, J.—Bosalin Fernando v. Aiwa
305
consider these grounds as we are in agreement with the conclusion reachedby the learned trial judge on this aspect of the case.
Has the plaintiff shown that the actual necessity of the case demandsthe grant to her of the right of footway claimed over lot “ Y ”? Theonly alternative way disclosed was to walk along the stretch of sea-shoreuntil one reached the lane in front of the Magistrate’s bungalow. Thelearned District Judge has found that ingress or egress by foot over143 yards of sea-shore is not so difficult or inconvenient as to be practicallyimpossible. The question, undoubtedly, is one of fact, but in the parti-cular circumstances of this case we have, after examination of the relevantfacts, reached a conclusion different to that reached by the learnedDistrict Judge. In doing so we are fortified by the fact that no questionarises here of the credibility of witnesses but that the real question is theproper inference to be drawn from the undisputed facts spoken to bycertain disinterested witnesses called on behalf of the plaintiff. AsViscount Simonds said in Benmax v. Austin Motor Co. Ltd.1, wherethe sole question is one of evaluation of facts the appellate court is in as-good a position as the trial judge and should form an independent opinion,though it will naturally attach importance to the judgment of the trialjudge.
We are not inclined to disagree with the learned District Judge that (1)the circumstance that the children’s feet get burnt by going over the heat-ed sand was an exaggerated hardship and one capable of easy remedysuch as by the use of sandals or cheap rubber shoes and (2) the questionof the transport of building materials etc. by cart or other conveyanceloses any importance if the plaintiff is otherwise not entitled to a cartway.We are, however, unable to brush aside the proper inference to be drawnfrom the evidence of several reliable witnesses like Messrs. W. N. Groone-wardene, D. W. J. Perera and Henry Peiris who spoke of the hardshipcaused to occupants of the houses on the plaintiff’s land during the periodsof the monsoons, notably the south-west monsoon. It is not denied thatduring the south-west monsoon the waves from the sea reach the plaintiff’sland. The fact that children and sick persons can get into or out of thisland only by wading through or being carried across 143 yards of wateror beach at a season when the sea is notoriously turbulent is to my minda compelling circumstance and, in this case, a decisive one. Viewed inthe light of this real hardship of access over the sea-shore in monsoonweather, and indeed at other seasons as well, I find no difficulty in decidingthat this alternative route is one which is “so difficult and inconve-nient as to be practically impossible”. It is a relevant circumstance thatsome 21 persons, ineluding 10 children, live in the two houses on this land.In case of sickness no vehicle can be brought .up to the house and thepatient, even if he is capable of walking, will have to be carried by othersover a not inconsiderable length of sea-shore. In the case of a weddingor funeral, the difficulties and inconvenience will be manifest. In thecase of an urban area like this part of Panadure where so many buildingsexist and so much building activity appears imminent, the denial of theright of way claimed would amount to a deprivation of a necessary amenitypf modern living. I am of opinion that the alternative route does not
1 {1955)1 A. E. 22, 32A
306
Jayasena v. S. I., Police, Ahmeemena
" ' ' *.
constitute reasonable access to a public road, having regard particularlyto modem conditions of living and that the plaintiff should be grantedthe more direct approach to a public road over the defendants' landas claimed by her.
The only question that remains is the quantum of the compensationthat should be ordered to be paid to the defendants in consideration oftheir being compelled to allow the creation of this servitude over theirland. “ If the neighbour is ordered to submit his property to a fulland permanent right of way which is sought ex necessitate, the ownerof the landlocked property must pay a just price for this right”.-—Halland Kellaway on Servitudes, (2nd. ed.), page 69. In my opinion, reason-able compensation or the just price the plaintiff must pay would be themarket value of the strip of land. According to plan P. 1, lot ** Y ”has been surveyed as an area covering 2 -86 perches. The learned DistrictJudge has stated in the course of bis judgment that in the event of thisCourt disagreeing with his view that the route over the sea-shore consti-tutes reasonable access to the plaintiff’s land, compensation should becalculated at Hs. 15,000 an acre which, according to the 1st defendanthimself, is the price of land in this locality. On this basis, the valne oflot “ Y ” works out to Hs. 268, and I would order that a sum of Its. 300be paid to the defendants by the plaintiff as compensation for the grantwhich I decree to her of a right of footway from her land over “ Y ”in plan P. I to Gunananda Place.
The plaintiff will have the costs of this appeal and half her costs in thecourt below.
H. N. Gr. Pebnakdo, J.—I agree.
Appeal allowed.