056-NLR-NLR-V-07-SAIBO-v.-JAMES-APPU-et-al.pdf
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SAIBO v. JAMES APPU et al.
C. B., Matara, 887.
Adjoining house owners—Overhanging eaves of plaintiff’s roof—Bight of defendantsto have it cut off—Long use of eaves by plaintiff over defendants’ land—Condition on which defendants' right to cut off plaintiff’s eaves may beexercised.
Where the defendants built a house adjoining the plaintiff's by fixingtheir beam and wall plates at the end of the eaves of the plaintiff’swhich overhung the defendants’ land, and afterwards, desiring tobuild a taller house, notified to the plaintiff that they would removehis eaves—
Held, that the plaintiff was bound to remove the overhanging eaves,notwithstanding that they have existed in that position for thirty years,and that if the defendants build a house on their own land they shouldso finish and roof their houses that the plaintiff's wall would not sufferin consequence of the removal of the eaves.
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HIS was an action for restraining the defendants, who wereowners of a house adjoining the plaintiff's house, from
cutting and removing the eaves of the plaintiff’s house and raisingthe eastern wall thereof as a common wall for defendants’purposes.
The Commissioner, Mr. H. W. Brodhurst, found as follows: —
“ The plaintiff’s house was built, with the present eaves, at leastthirty years ago. The plaintiff bought it in 1884.
“ Soon afterwards the defendants bought the adjoining land, overwhich plaintiff’s eaves projected. They built a house adjoiningplaintiff’s house, and they fixed their ridge beam and wall plateson to the plaintiff’s ridge beam and wall plates at the end ofplaintiff’s eaves. The plaintiff’s eaves therefore projected’ aboutthree feet over defendant’s house and formed a part of their roof.
“ The defendants occupied their house for some twelve years, andthey pulled it down about three years ago. *When they did sothey removed their roof, leaving plaintiff’s .ehves intact.
“ They now wish to build a larger house with a roof higher thanplaintiff’s roof, and a§ their wall touches plaintiff’s wall they
1899.
December 5.
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1890. cannot raise it to the required height without removing plaintiff’sDecember S. eaves. Plaintiff brings this action to prevent his eaves from. beingremoved.
“ It is contended for defendants that, as they had the use ofplaintiff’s eaves for some twelve years, they acquired a title to themby prescription, and therefore have a right to remove them. Itseems to me that, even if they acquired a prescriptive right thedefendants cannot now claim the eaves, because they gave up thepossession of them three years ago.
But I think it is clear that, if defendants acquired any prescrip-tive title at all, it was only a right to the joint use of the eaves withplaintiff. I cannot uphold the argument that plaintiff lost hisrights by allowing the defendants to use his eaves. The eavesremained attached to plaintiff’s house, and continued to performtheir function of protecting plaintiff's wall. The fact that theeaves also protected defendants’ house in no way ousts plaintifffrom the possession of the eaves.o
“It is clear that defendants recognized this fact when theyremoved their house but did not remove plaintiff’s eaves.
“ I am certainly of opinion that defendants have not acquiredany title to plaintiff’s eaves independent of and adverse to theplaintiff, and as they have had no possession for three years I doubtif they could now even claim the right to use the eaves jointly withplaintiff. I consider that, defendants have no right to removeplaintiff’s eaves, and that if they wish to build a wall higher thanplaintiff’s roof they must either build it beyond his eaves, or payhim any compensation that he may demand for the loss of hiseaves.
“ The evidence shows that defendants have removed the tilesfrom plaintiff’s eaves and cut some of his roof timber. It wouldprobably cost about Rs. 20 to repair the damage.
“ I find on the second issue that plaintiff’s eaves have existed intheir present position for thirty years. I find on the third issuethat defendants have damaged the eaves, and that they had no rightto do so. I find on the fourth issue that defendants are liable to'pay Rs. 20 as damages. I give judgment in favour of plaintiff forthe eaves in dispute with damages Rs. 20 and costs.
The defendants appealed.
•The case was heard in appeal on the 27th and 28th November,1899, by Lawria, J.
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Van Langenberg, for appellants.
Maartensz, for respondent.
Cut. adv. vult.
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5tb December, 1899. Lawrie, J.—
I understand the plaintiff’s case is a claim for a right tooccupy a space over the defendants’ land.
To quote from Hunter’s Roman Law (p. 419) :“ The rule of law
was that to the owner of the soil belonged all the space above thesoil, and therefore anything overhanging from a neighbour's houseabove his land would be, in. the absence of a servitude, aninfringement of his rights. The projections here referred toare balconies (mceniana) and the eaves of houses (suggrunda),which do not rest on the wall of the neighbouring proprietor,but simply overhang his land. " (Edition of 1897.)
The right to have such projections constituted the jus proji-ciendi (D. 50, 16, 242, 1).
Burge (Vol. 3, pp. 402 and 403) says that the jus projiciendi.by which the part of a building projected towards the adjoininghouse without resting on the latter, merely over the ground, is tohe found in the jurisprudence of Holland.
It appears that it was not adopted in all the countries whichfound their law on the Civil Law; for instance, it is not (I think)known in Scotland.
Gale, in his Law of Easements, says:“ To place things pro-
jecting into the air over another’s head is actionable. ” Hequotes Pickering v. Rudd and Fay o. Prentice. Addison, OnTorts, p 362, says:“ A man may become responsible for a
nuisance fry' erecting a building which overhangs the house or landof his neighbour, or by constructing a cornice, or fixing a spout orany projection which causes or has a tendency to cause an un-natural quantity of rain water to fall on his neighbour’s house orland. ” Addison there refers to Fay v. Prentice, which caseis also referred to as an authority in Smith’s Leading Gases{Vol I., pp. 318 and 319). '
It has often been held in Ceylon that a landowner cannotacquire a right- to have his trees overhang his neighbour’s land.Such a jus projiciendi in the case of trees has frequently beennegatived, and the law gines to the owner over whose landthe trees hang the right to require his neighbour to remove theoverhanging branch. I think it has,been held that mere lengthof time will not bar the demand. I think it is difficult 4o dis-tinguish between the owner of trees and the oigrner of eaves.Of course this servitude, jus projiciendi,' can be created bygrant, by a notarial instrument; but here theVe.is no suggestionof grant to the plaintiff. * He rejies only on the length of timehis eaves have projected. There is another principle which Ithink must govern this case. It is the fundamental rule that
1S99.
December S.Lawrie, J.
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1899.
December SLawtue, J,
a servitude cannot be only burdensome, it must be also beneficial* to the possessor of the servitude.
Here, if the defendants build their house higher than the eavesof the plaintiff's house, they will not cause the plaintiff an injury,the higher house will supply the place of the eaves-. The defend-ants must so complete and finish their wall as to protect theplaintiff’s wall as well as the present eaves do. It would notbe just to prevent the defendants from building a house as high asthe. plaintiff’s house is, or even much higher, provided they soperfect the wall and roof as to cover and protect the plaintiff’swall.
I set aside the judgment. The- action for injunction anddamages is dismissed, and it is declared that the plaintiff isbound to remove the overhanging eaves so as not to preventthe defendants from building a house on their own land, it beingdeclared that the defendants must so finish and roof their housethat the plaintiff’s wall will not suffer in consequence of theremoval of the eaves.
The plaintiff to pay the defendants’ costs.
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