055-NLR-NLR-V-18-SAMARAWEERA-et-al.-v.-MOHOTTI-et-al.pdf
( )Present: Perelm J. and Shavr J.
SAMAB/WEIBA. «{ at. o. MGHOTTX et «{.'
0* Mofara, 650P7.
&%£KM)£-0£36tt$ feya p*m«to&}%?$&ofcraeUcnof a kuslditt#—Bight
of jMi#V bn&d&ig t*« anvUisr1? land to retain encr&&chw#nt on pa$in$aHRjw*.f*;i''A«v.
la tSfci rase ofaucR^^chmiBfeby &pensoa iu(he course of (ha
«$B6fekn o? 4 Ibaildtogon $holandofhis neighbour, there is no
fcnshorMj iathe &cs-afca-Xh&tehlawtosupportan order permitting
$h© offendingp«rty to xetfetothe encroachment,paying canpeneo*
fckmIt is ti&ttd ski South Africa to give the offending
jte?ty ;k op^ooofireyingtheporiks* of landencroached upon,
"payfftg the aggrievedpartyft7i adequateprice forit, and damages.
Thk isoas^smay togniftabktamebeadoptedwith advantage in
Cffyten.
T
HE recta are set out -in the Judgment of the District Judge(J. C, W. Sodt,’
t'tv dtfeafent »ttf«haw(' ce two feeds CD 3. and D 2) bom firstjfefetfff s»3 his3st®SMOs^-in-law(feseeaed, thirdjdsiniift) a gws»
af ■ feaS gg fastSos?gfejJ 40 . feetbroad, shown &a.<5 in Mr Peroral
phw feted March14,1914,wish&rarbawtfqueestanding thensos.
( 188 )4 „
1014.Defendantpulled downthen boutiquesand built onthe sitea snbsto-
JTTT!.tial twadwib IndUing. The cause of action isfereMd:first*that
defendantin buildingencroached onplaintiffs* todto thenorthand.
south faythe maimerin which theeaves were constructed(theseare
the encroachments D, E, 7,G); and secondly* that, he without
permission filled up the space A at the back of the new holding. Thedefendant also causedtain water tofoilfromhis drain pipes orgutters
on to plaintiffs1 land; but this matter has been remedied* and plaintiffsdo not press for damages on this account.
t
After the first survey defendant got a second survey made byMr. BooamaleoooqonSeptember81,1014, and after that shiftedhis
ground. There he claims the ground whioh was speciallyfay
him in paragraph 4of hisanswer.Healsoclaimspartof theground
covered by boutiqueHo. 4in Mr.Perera’splan.Butthis isclearly
an afterthought* and represents an utterly false claim. No. 4 is thecadjan building in which the oven actually stands, 6 is the part wheresales are conducted. Because the deeds give the oven as the boundary,he now claims theextraground;butwhat thedeedmeansis that
the southern boundary is the ground where it stands* and his limitsare clearly defined by the extent (58 by 40 feet) which was add to him.The most remarkable feature is the accuracy shown by the carpentersor masons (who knew their business) in measuring out the grounds.The roof over the oven clearly indicates what ground is covered by. .theoveu—that goes rightup to thewallof0. This roof is necessaryin
order to protect the oven from inclement weather. It would be uselessif it 8topped at the point indicated by the defendant, who is in respectof this claim clearly proved to be lying.
The long and short of it is that defendant having purchased a pieceof ground of acertain extent,builthisfoundations exactly up tothe
utmost limit of the space he had purchased, with the result that hiscaves project over plaintiffs* land
On the eastern side the defendant has encroached by the building ofsteps and by means of sunshades. This slight encroachment seems tobe necessary tothedefeo&fintfortheappearance and finish ofhis
building. The filling'' up of earth at H is also necessary as a protectionfrom wet weather and damp.
The questions to be decided now are:—
What are the extent of the encroachments ?
Whether they were acquiesced in or not ?
(8) How for defendant is liable in damages ?
(4) What other remedy is applicable ?
I hold (issue 1) that by means of the eaves at D, E, F, G, defendanthas encroached to the extent of 1 foot, and to a similar extent by thesteps at the back of the home. 1 will deal with this encroachmentseparately.
First plaintiff- does notliveontheland*but his mother-in-law* an
old woman, did. These encroachments, being a matter of a foot, are notof the kind that a woman at any rate would readily discern. .H cannot,therefore, be said that they were acquiesced in by the plaintiffs (issue 9).
Next* the ground wasfilledupattheback; this encroachment, I
bold, was acquiesced in(issue4).Hefilledup the ground under the
eye of (though probably not with the express permission of) third
( 189 )
plaintiff.She saw himdoingHt end probably saw the objictcf it, bet
" thisdoesnet meanSal defendant hasa sigh* to this gfamd, or that Smnurmettra
(hinttftam estoppedtandefining it. He hadonly a permissive «# MdtoCtf
user ofit, and usedit tosuit his own purposes*I should strongly
advisehim to boyitata reasonablefigure tram plaintiffs*It is
absurdtor defendanttosaythat it is toolateto plaintiffsto cry out
against the encroachments; he has not acquired any prescriptive titleto them, and it on he noto him to surrender what is not his
«*» nor extravagant on the partof plaintiffs to claimwhat istheir own
(issue 3).
Asto the damages, I consider theyore onlynominal.Theencroach-
moots,if continuedorestablished, would,ofcourse, limitthespace
available to plaintiffs either for sole or for building a house similar to Cbut toe actual damagetoplaintiffs canonlybo regardedasslight.
estimate past and future damages at Be. 85 a year till toe presentgrievances complained of are remedied (issue 7).
Astoremedy, I**™&A*f it wouldbe mostequitableifdefendant
n?twoutoff a footof the eaves of hishouse andremovedthesteps and
sunshades, orpaid compensationtherefor. Iassesstoe compensation
at Bs. 120 (issue 6).
Enter decreeorderingdefendant(1) to pay to plaintiffs Bs. 85 a
year from the date of encroachment tilleither encroachments are
removed or compensation is paid;(2} to removethe encroachments
within one month from date, or to pay Bs. ISM) to plaintiffs for thestrips D, B, F, a,M;(3) to beejected fromthe toeof the portion K
(minus M, if hepaysforM); (*. toP*y bait thecosts dfsuit of plaintiffs.
Btowa, JBl.C., and Cooray, for plaintiffs, appellants.
Chenier, K.G., and D. B. Jayat&eke, for defendant, respondent.*
Cur. atlv. suit.
December 18, 1914. Pbkeiba J.—
The maxim cvjue e$t solum ejus est usque ad ctelum et infernos isas much a maxim of the Boman and Soman-Dutch laws as it is of. the English law, and certain parts of the eaves of the defendant'shouse marked D, E, F, G in the plan are therefore as much anencroachment on the plaintiffe’ land as the steps marked M. Mostclearly the defendant has made these encroachments deliberately,and, although possibly he had no definite intention of vexing theplaintiffs, his object was stealthily to gain for himself as muchadvantage from his neighbour’s property as possible in building hiehouse.. He thus made the encroachments in the hope, no doubt,that his act might remain unnoticed and undetected. The case issimilar to that of Miguel Appuhamy o, Thamel*1 The defendantis dearly bound to remove the encroachments. Is he entitled toclaim that the plaintiffs be allowed and compelled to take advantage
1 2 Cur. L. £. 209.
-( 1» )
1014. of any alternative relief ? In the ease cited it was held that theoffending party, in a case like this, might be allowed .to buy the-—portions of land encroached upon, paying the party aggrieved an
adequate price for them, and damages. The authority for thisproposition is in Maasdorp's Institutes of Cape Law, vol. I/., p. 60.Maasdorp bases it on certain decisions of the South African Courts,and the proposition may, I think, in suitable cases, be given effectto in this Colony also; but although, in the case cited above,Hutchinson C.J. observes: "And perhaps there may also be apower to order the, defendant to pay compensation as an alternativeto removing the encroachments. " 1 am aware of no authoritywhatever in the Roman-Dutch law to support this proposition, andthe learned counsel for the respondent has not been able to cite any.Anyway, the circumstances of this case do not, in my opinion,entitle the defendant to the benefit of any alternative. As in thecase of Miguel Appuhamy o. Thamel1 cited above, I think that thedefendant should be ordered to remove the encroachments, whichhe can no doubt do without substantially impairing the use .of thehouse, although its appearance may to some extent be prejudiciallyaffected. 1 think that the defendant should^ be condemned toremove the encroachments at D, 35, F, Or, and M, and to surrenderpossession of H to the plaintiffs., and to pay the plaintiffs costs inboth Courts, and, in default, that the Court should enforce thisorder by issue of execution. The judgment appealed from shouldbe varied accordingly.
Shaw J.—1 agree.
Varied.
* 4 Csf. L* J8. m.