012-NLR-NLR-V-34-SAMARASINGHE-v.-CHAIRMAN,-V.-C.-MATARA.pdf
JAYEWARDENE A.J.—Samarasinghe v. Chairman, V. C., Matara. 39
1932Present: Jayewardene A.J.
SAMARASINGHE v. CHAIRMAN, V. C., MATARA.
192—C. R. Matara, 14,160.
Public path—User for sixty years—Time immemorial—Via vicinalis.
Proof that a footpath has been used by the public for sixty years issufficient to establish a user from time immemorial.
PPEAL from a judgment of the Commissioner of Requests, Matara.
H. V. Perera (with him Rajapakse), for plaintiff, appellant.
Keuneman, for defendant, respondent.
May 6, 1932. Jayewardene A.J.—
The plaintiff brought this action against the Chairman of the VillageCommittee of the Four Gravets, Matara, to have it declared that thereis no public path over his land called Maswalakanatta. . The defendant-respondent alleged that there existed a public road over the land inquestion from time immemorial and claimed a right of cartway.. Thethird issue framed was whether there was a public cart road over the land.
The learned Commissioner held that it had not been proved that theroad had been used as a cartway but that it had been used as a footpathby the public for nearly sixty years. As the period was so long, hethought he was justified in holding that the use was from time immemorial^He declared that the public were entitled to a footpath three feet inwidth. The path was to be laid down as far as possible • along thesouthern boundary.
A public road is either a road which has been constructed as such bythe public authorities, Qr which has been used as a public road by peopleinhabiting the neighbourhood from time immemorial. No amount ofuse by the public is sufficient to make a road a public road where theroad was made within the memory of man (Allishamy v. Arnolishamy’).This kind of road called via, vicinalis or neighbour’s road is recognizedby the Roman and Roman-Dutch laws.v-
1 (1898) 1 Tambtfa 26.
JAYEWARDENE A.J.—Samarasinghe v. Chairman, V. C., Matara.
J4U
A via vicinalis, according to the Digest, was one which was made upof contributions of the ground of private landowners and which hadexisted from time immemorial …. u Via vicinales, quae ex agris
privatorum, collatis factae sunt, quarum memoria non extat, publicarumviarum numero sunt ”(Digest XLIIL 7, 3.)
According to the Roman-Dutch law' there are two kinds of public 'roads : the via publica and the via vicinalis. A via publica is constitutedsuch by the authorities when declared by them to be a public road.
A via vicinalis or neighbour’s road is a road either in a village or leadingto a town or village which has been used by the people of the neighbour-hood from time immemorial ….(Opinions of Grotius, p. 425.)
Voet classes all public unproclaimed roads under the heading ofviae vicinales ….“ ut tamen viae hac vicinales quae ex privatorum
collatione sunt jactae, quantum ad usum attinet, viarum publicarumnumero habeantur; maxime, si constitutionis earum memoria nonextet” …„. (Voet XLIII. 7, l.)
In Appuhamy v. Alapatha ' the nature of a via vicinalis was consideredand a “ devata ” road which was in question was regarded as a viavicinalis.
In Fernando v. Senaraine 2 it was held that public roads are those whichhave existed from time immemorial or which from time to time havebeen constructed on land belonging to the Crown, or acquired for thepurpose and thereafter used by the public as a- means of communication,and evidence of user by the public for over a third of a century wasthere considered sufficient.
In Ludolph v. Wegner '', Villiers C.J. held that where the user is provedto have continued for thirty years and upwards, the Court will in theabsence of any evidence as to when and how it actually commenced, bejustified in holding that it had existed from time immemorial (2 Maas-dorp 191).
The whole question of public roads in South Africa was considered inPeacock v. Hodges4,’and clear proof of uninterrupted use for thirty yearsand upwards was considered sufficient, by the law and practice of thatcolony, to establish an user from time immemorial. The same principlewas adopted in Hodson v. Mohammadu '
In the present case the judgment was well-founded. The learnedJudge has inspected the road and noted his observations and he is ofopinion that a footpath has existed for sixty years. No living personknows when this path was first used. I think that the presumption ofimmemorial user would apply to this path. There remains the questionof costs. The first defendant claimed a cart track. In this he has failed.Further, it would be of great advantage to the inhabitants to have adeclaration by this Court that thispublic footpath exists. In allthe
circumstances while dismissing theappeal,I wouldaward no costs inthis
Court or in the Court below.
Appeal dismissed.
i (102(1) 7 C. L. R. 107.?1 0 S. C.10S (South Africa).
(1032) 1 Ceylon f.mr Weekly 100.■* (1S7C) (IBuchanan 70 (S. .4.4.
'• (1021) 23 X. L. U. 343.
2