SANDRASEGRA v. SINNATAMBY

030-NLR-NLR-V-25-SANDRASEGRA-v.-SINNATAMBY.pdf


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Present: Jayetcardejie A. J.'SANDRASEGRA v. SINNATAMBY.403—P. C. Jaffna, 23,022.Public place—Right of public to draw water from a well—Well sunk onprivate land within memory of living witnesses—Immemorialuser—Dedication to the public—Is it a mode of conferring rightson the public.
■ A well was sunk about forty years ago in the outer courtyard of aHindu temple where the people of the Mukkuwa caste worshipped-Whatever may have been the original intention, Christian Muk-kuwas had also drawn water from the well without any objection. during this period. The Hindu Mukkuwas now refused to allowthe Christian Mukkuwas to draw water from the well, and enclosedthe well with a fence. A riot took place, and the fence was pulleddown. It was re-erected by the Hindus. The Maniager appliedto Court for a conditional order under section 105 of the CriminalProcedure Code that the obstruction be removed, and that the wellbe thrown open for public use until the Hindus established theirexclusive right to the well.
Held, that under section 105 it was essential that the personasking for an order should,establish that the. place from which theobstruction is to be removed is a public place.
25/141 (1900) 1 Br. 57.
1923.
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1923.
Sandraseyrav.
Sinnatamby
Held, further, that the public had not acquired the right to drawwater from the well either by immemorial user or by dedication.
Proof of uninterrupted use for thirty years and upwards is norsufficient to establish user from time immemorial in Ceylon ; userfor a period extending beyond the memory of man must be proved.
The presumption of immemorial user from user for thirty yearsand upwards can only be made in the absence of any evidence as towhen and how the user actually commenced. “ In the present-ease there is clear evidence as to when the right to draw waterfirst commenced.’*
Dedication otherwise than by deed as a mode of conferringright on the public is not recognized by the Roman-Dutch law.This principle of dedication has not been introduced into thelaw of Ceylon.
q^HE facts are set out in the judgment.
Hdyley (with him Rajaratnam and Ramachandra), for theappellant.
E. W. Jayewardene, K. C. (with him Rajakariar), for respondent.
July 28, 1923. Jayewabdene A.J.—
This case, according to the Police Magistrate of Jaffna, involvespoints of public and caste interest. The appeal is taken from anorder passed under chapter IX. of the Criminal Procedure Code,requiring the appellants to remove a fence round a well and tothrow it open to public use. The well-in question is situated in thevillage of Navaly in Jaffna. It is in the outer courtyard towardthe north of a Hindu temple where the Mukkuwas or fisher-folk ofthe village worship. It is within the procession path of the temple,and is one of the few wells in the village which contain water fit fordrinking purposes. Among the Mukkuwas there are many Christiansclosely related to the Hindu Mukkuwas. The position of the wellshows that it has been constructed for the use of worshippers whowash their feet before entering the temple. The Christians andmany of the Hindus say that whatever may have been the originalintention, Christians have drawn water from the well for overforty years without any objection.
On April 20 this year there was a marriage of a Hindu Mukkuwa.He invited his Christian relatives to the wedding. The dhoby of thetemple plays an important part at such functions. The managersforbade the dhoby to eat at the wedding house, as he poured oilinto the lamps in the temple. To eat with Christians was pollution.A riot became imminent, but it was quelled by the prompt inter-ference of the police and headmen. The dhoby used to serve bothHindus and Christians alike at one' time, but recently he has beenmade to enter into a deed agreeing to serve only Hindus. The day' after the wedding, the Hindus refused to allow the Christians todraw water from the well, and put a Hindu there to draw water for
1928.
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them. The Hindus also enclosed the well with a fence. The"Christians insisted on their right to draw water and pulled down thefence. A serious affray took place, and several persons weregrievously injured. The fence has been put up again, and Christiansarc not allowed access to the well.
Gji Juno 11 the Maiuagar of Valikamam West came to Court Midfiled his complaint. He alleged that the appellants had preventeda certain section of the public of Navaly from using this well whichhad hitherto been used by the Mukkuwas irrespective of creed, thatit had been accessible to every member of the Mukkuwa communityfor over forty years, that on 3lay 26 the appellants had put up a fencediverting the course of a public lane and excluding the ChristianMukkuwas and their Hindu relations from using the well, wliich isthe only well in the vicinity from wliich the Mukkuwa Christiansand their Hindu relations living near could draw water for drinkingpurposes, and that this unlawful obstruction had entailed hardshipon a large number of people. He, therefore, applied for a conditionalorder under section 105 of the Criminal Procedure Code that the.obstruction be forwith removed, and the well be tlirown open forpublic use until the appellants established their exclusive right tothe well. This application was resisted on two grounds. First,that as the claim of the appellants was kona fide, proceedings shouldnot be taken under the criminal law (see Hendrick Mendis v.Sri Ckandraeekera Mudaliyar.1) Second, that the well was not apublic well, ands so section 105 could not apply. That part of thefence which encroached on the public lane, the appellants said,they were prepared to remove.
As regards the first contention, I entirely agree with the learnedPolice Magistrate that the appellant’s claim is not a bona fide one,and that this was a proper case for investigation under chapter IX.of the Criminal Procedure Code. The Magistrate has also held,after a patient and careful trial, that the well is a public well, andthat the order applied for should be made. I regret I am unableto agree with his conclusion on this point.
Section 105 enacts, inter alia, as follows
“ Whenever a Police Magistrate considers on receiving a reportor other information, and on taking such evidence (if any)as he thinks fit—
That an unlawful obstruction or nuisance should beremoved from any way, harbour, lake, river, or channelwhich is or may be lawfully used by the public or fromany public place …. such Police Magistratemay make a conditional order requiring that
Jayewar-DENE A.J.
Sandra' eflro
r.
Sit natamby
1 (1908) 12 X. L. 11. 33.
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192 a.
Jayewar*DENE A J.
San'fraseyra
v.
Sinnatamlrtf
the person cansiug such obstruction or nuisance…. shall, within a time to be fixed by such
order—
Remove such obstruction or nuisanoe ; or . … .or appear before himself or some other PoliceMagistrate of his Court at a time and place to be fixedby the order, and move to have the Order set asideor modified in manner hereinafter provided.”
Under this section it is essential that the person asking for anorder should establish that the place from which the obstruction is .to be removed is a “public place.” It is contended for the re-spondent that a well, if it is a public well, falls within the term“ public place ” in section 105. This may be assumed to be so forthe purpose of the argument. What the appellants have done isto place a fence on the land round the well, but they had placed noobstruction in or over the well, so that there was no obstructionwhich they could have been ordered to remove from the well. Theobstruction, the fence in this case, was on land outside the well,Therefore, what the respondent had to prove was that the land onwhich the fence stood was a public place, and that the fence con*structed on it was an obstruction- It may be that, if the fence isremoved the public would have free access to the well, bat I do notthink that it was competent for the Magistrate to order, undersection 105, not only the removal of the fence, but also that the wellbe thrown open to public use. However, I need not pursue thematter further, as no objection was raised on that ground, and theparties appear to have proceeded on the basis that the well and theland surrounding it formed one place, and that an obstruction placedon the land would be an obstruction of the use of the well also.
All the evidence in the case has been directed by the parties toprove their t-espective contentions : the respondent, that the well isa public one ; and the appellants, the contrary. I accept tjie learnedMagistrate’s finding that for about forty years both Hindu and Chris-tian Mukkuwas have drawn water from the well. The Vella lias donot do so as they are of a higher caste, and the Nalavahs and Pallascannot do so as they are of a lower caste.' Proceeding on this basisl will examine the contention of the respondent. I will assume thatthe use by the Mukkuwas alone of the right of drawing water fromthe well amounts to a user by the public. That alone, however, isnot sufficient, and the respondent must further prove that the wellhas become a public well in some way known to the law.
There are, in my opinion, three modes in which rights can beconferred on or acquired by the public :—
By grant executed according to law ;
By immemorial user ;
By dedication (dedieatio ad fopulum) otherwise than by deed.
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No grant is produced in this case, so that the first mode does notapply. Has the well in question been used from time immemorial ?Admittedly this well stands on private property, as the Judge finds.The land on which it is sunk is claimed by one Sinnatamby Kandiah,one of the complainant’s witnesses, by inheritance from his grand-mother who purchased it in 1876 on deed D1. Sinnatamby Kandikhalso claims the well as his private property. He does not wish it tobe declared a public well, but wants it to be reserved for Vellallas,Mukkuwas, and Christians only. The well was sunk within thememory of living men. The complainant’s witness, SinnatambySabapathy, an old man of 72, says that one M. Sinnatamby had itsunk, and that he has known it for forty years. K. Sinnatamby, awitness for the accused, who had been a manager of the templemany years ago, says that P. Vairavy sank the well thirty or thirty-five years ago. Another witness for the accused also says thatVairavy sank the well out of money collected from Hindus. If thecomplainant’s witness’ evidence is accepted as correct, it proves thatthe well was sunk forty or forty-five years ago within his memory.The meaning of the term “ immemorial user ” in connection withthe acquisition of rights by the public has been explained in severallocal cases. It means the user of a right for a period extendingbeyond the memory of man. In Goonewardene v. Perera 1 wherethe right of using a plot of ground at the mouth of a river for haulingup fishing boats and spreading nets and selling fish was claimed asa right belonging to the public. Wendt J. said—
“ The defendant’s case was that ^the right belonged to the public,or to a certain section of the public, hence their averringand undertaking to prove that the right had been contin-uously exercised from time immemorial. No historicaldocuments or other ancient records were produced to showthe existence of the alleged right, and fifth defendant’stestimony, even if it in other respects satisfied the require-ments-of the law, did not go back far enough. He oouldonly speak to a date fifty years before the trial, arid that waswell within living memory. The defence must at leastshow that the right was claimed and exercised at theearliest date that could be recalled by oldest living inhabit-ants. The phrase used by Voei, Bk. 43, 7, 1 (“ quorummemoria non extai ”), in speaking of the establishment of apublic right of way, implies at least that much, and I thinkthat there is an analogy between the two kinds of rights.”
See also Andris v. Manuel.2 Voet following the Digest uses theterm in connection with public rights of way, but it has been heldapplicable to all similar rights claimed as belonging to the public.Thus it has been held in South Africa that a right of public outspan
1 (1908) 4 Bal. 16.* (1909) 3 Weerakoon's Rep. 69.
1923.
J AYEWAB-
DENE A. J. .
Pandraseyrtt
v.
Sinnatamby
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1923.
Jayewar-DENE A.J.
.<<intlra*eyra
v.
S'hxnatumhij
can be constituted in favour of the general travelling public byimmemorial user (see de Toil v. Aberdeen Divisional Council1).The same principle has been applied to rights of pasturage andcommon (see 2 Maasdorp 194).
For the respondent, the case of Hodson v. Mohomddu2 is reliedupon. There this Court relying on a passage from Maasdorp'sInstitutes' of Cape law, vol. II.* p. 191, said that it is a recognizedprinciple that from a user by the public for a considerable timethe Court may infer a user from time immemorial. That passageis as follows :—
u By such immemorial usage it was laid, down in the case justquoted that a road, which was in the first instance in theposition merely of a reciprocal servitude between theowners of a number of properties situated in the sameneighbourhood, might be converted into a public right ofway in favour of the public ; and it was held that, wheresuch a user is proved to have continued for thirty yearsand upwards, the Court will in the absence' of any evidenceas to when and how it actually commenced, be justified inlidding that it had existed from time immemorial.”
The case referred to in that passage as ■“ the case just quoted ”is the. case of Ludolph et al. v. Wegner et al* I have looked upthis case in Bisset and Smith's Digest, p. 2826. It is given underthe head “ Water,” and as jar as I can see it has notliing to do withroads. It is about an obstruction to a water course, and thereVilliers C.J., has, according to the headnote, held, inter alia, that—
“ If, it be difficult from the nature of the surface to ascertain whatis the natural channel, then* the course in which the waterhas immemorially flowed will be considered as havinghad a natural and legitimatC'Origin.
“ Whore the water has flowed in an artificial channel for thirtyyears or more, it may be presumed, in the absence of evi-dence to the contrary, to have flowed thus immemorially.”
And there is a passage in the judgment of Villiers C.J. in Peacockv. Hodges,J in which he says :—
' “ I think clear proof of uninterrupted use for thirty years and up-• wards is sufficient by the law and practise of this Colony(that is Cape Colony) to establish an user from timeimmemorial.”
This judicial dictum explains the reference in the passage fromMaasdorp to “ thirty years and upwards.” Nathan, citing the samecase, says : “ Time immemorial in Cape Province may be defined asthe period required for prescription ” (volpara. 711). But in
{7910) Cape Pro. Div. 477.3 6 S. C. 19S (South African).
{1921) 23 N. L. R. 34$.* {1876) 6 Buchanan'3 Rep. 65.
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Ceylon we have no such law or practice, and when immemorial useris not restricted to user for a definite period, user for a periodextending beyond the memory of man must still be proved. However that may be, the presumption there referred to can only bemade in the absence of any evidence as to when and how the useractually commenced. In the present case there is, as I have shownabove, dear evidence as to when the right to draw water firstcommenced. In view of the facts of this case and the authoritiesI have referred to, it is impossible to hold that the public haveacquired the right to draw water from the well in question byimmemorial user, and that the well is a public well.
There remains the third mode:—Dedication otherwise than bydeed. The question at onpe arises whether rights can be conferredon the public by this mode according to our law—the Roman-Dutchlaw (see Tissera v. Fraser1). As far as I have been able to ascer-tain, this mode was first recognized in Ceylon in the year 1900, when *Bonser C. J. in PvUenayagam v. Fernando 2 assumed that a piece ofground had been dedicated by the owner as a burial ground after itsuse as such for a period of about twenty years. No authorities werecited in support of this view. Again, in Ncmasivayamv. Perinpa-nayagam* where the plaintiff had constructed a cistern and troughon defendant’s land, and complained that the defendant preventedhim from repairing and restoring the cistern and trough. MiddletonJ., in upholding the dismissal of plaintiff's action, said—
“ So far as I can gather from the evidence of the plaintiff, heconstructed this cistern and trough for the public benefit,
. upon land of the defendant with the permission of hisfathers executor, and practically dedicated it to the public.”
This could hardly be considered a decision on the point. InAmaris v. Manuel (supra) Wendt J. speaks of user by the publiefrom time immemorial as “ a prescriptive user which amounts to adedication to the use of the public.” De Sampayo J., in Tissera v.Fraser (swpra), questioned the existence of the principle of dedicationin our law. He said in that case, in which the Crown claimed aright of way as a public way by dedication, “ I doubt whetherthe principle of dedication, which appears to be a purely Englishnotion, is applicable in Ceylon- Under the English law a publicright of way may be created by statute or by dedication to thepublic.” He explained the principle of dedication as understood in .the English law thus—
“ Dedication may either be expreiss or be implied from the conductof the owner of the soil, such as acquiescence in the user ofthe way by the public under circumstances which showan intention of dedicating the road to the use of the publicwhether the period of user is long or short; ” .
1 (1919) 21 N. L. B. 241.2 {1900) 4 N. L. B. 88.^ * (1905) 4 Bal. 98.
14-xxv.12(60)29 .
1923.
Jayewxr-
DENR A.J.
Sandrasegara
v.
tiinnafamby
1928.
Jayewah-DENE A.J.
f>amlra$egara
v
Sinnaiamhy
{ .146 )
and after discussing the facts found that the circumstances negativedthe idea of a dedication to the public. In the well-known case ofAllishamy V. Amolishamy1 the question was raised as to the waysin which a road may be constituted a public road. The plaintiffproved the user of the road by himself and others for over ten years*£jnd also led evidence to prove when the road was opened. Counselfor the respondent contended that as the road had been used by thepublic for over ten years, there was virtually a dedication to thepublic by the owner. Counsel for the appellant replied that dedica-tion, if it obtains at all, must be through the proper authority, andthat dedication in any other way does not seem to be recognizedby the Roman-Dutch law. In the judgments (Bonser C.J. andWithers J.) no reference was made to dedication as a means ofacquiring rights by the public, and Bonser C J. said—
“ As I understand the law, a public road is either a road whichhas been constructed as such by the public authorities,or which has been used as a public road by people inhabit-ing the neighbourhood from time immemorial ….no amount of use of by the public is sufficient to make aroad a public road when, as in this case, the road wasmade within the memory of man.**
The omission to refer to dedication as a possible mode of acquiringa right to a public road seems to favour the view that such a mode ofacquisition is not known to our law. Maasdorp in his Institutes,vol. II., p. 191, says that the method of acquiring the right to apublic road by the process of dedicatiqn to the public was firstrecognized in South Africa in a suit'decided by the High Court ofGriqualand West. In that case the Court decided that when, aroad has been used by the inhabitants openly and publicly for anumber of years, and the Town Council has repaired it with theapparent consent and acquiescence of the owners of the ground,this amounted to/ a dedication to the public, but in another caseStow v. Hurd2 that view appears to have been contested, and itwas questioned whether dedication is a mode of conferring rightson the public recognized by the Roman-Dutch law. (See Bissetand Smith's Digest, vol. VII., p., 647.)
Reference might here be made, without irrelevance, to the law ofScotland which is largely derived from Roman law, and is moreakin to our law than the law of England. In Scotland it has beenheld, differing from the English law, that a public right of waycannot be acquired by dedication. In Mann v. Brodie3 LordBlackburn, in* the course of an interesting judgment, forciblypointed out the distinction between the English law and the Scotch-law on the subject. He thought that the law of England on the1 (ISOS) 2 Thamb. 26.1 {1916) Cape Pro. Ihv. 200.
3 (18$$) 10 A. C. 378.
1923.
( )point was not “the perfection of reason/' and ought not to beintroduced into the law of Scotland if not so already.*
It may be here stated that when a period of prescription is fixedfor the acquisition of rights by the public proof of immemorial useris for all practical purposes useless and unnecessary^ ,for suchprescription supersedes immemorial user which is equivalent toprescription by possession for an undefined length of time.
In view of these authorities, I hold that dedication otherwisethan by deed as a mode of conferring rights on the public is notrecognized by Roman-Dutch law. It cannot also be said that thisprinciple of dedication has been introduced into the law of Ceylon.The respondent cannot claim the well as a public well by dedication.
. * “ The case is to be governed by the law of Scotland. Any reference toEnglish law is apt to mislead, unless the difference of the law of the twocountries is borne in mind. In both countries a right of public way may beacquired by prescription. In England the common law period of prescriptionwas time immemorial, and any claim by prescription was defeated by proof,that the right claimed had originated within the time of legal memory, that is,since A.D. 1189. This was, no doubt, an unreasonably long period. Andsometimes, by legal fictions of presumed grants, and in part by legislation, theperiod required for prescription as to private rights has, in many cases, beenpractically cut down to a much shorter definite period (see Angus v. Dalton).But this has never been done in the case of a public right of way. And it hasnot. been required, though in the way in which the evil of the period of pre-scription being too long has been avoided, an opposite evil of establishing publicrights of way on a very short usurpation bus some times been incurred. . ..
But it has also been held that where there has been evidence of a user bythe public so long and in such a manner that the owner of the fee, whoeverhe was, must have been aware that the public were acting under the beliefthat the way had been dedicated, and has taken no steps to disabuse them ofthat belief, it is not conclusive evidence, but evidence on which those who haveto find the fact may find that there was a dedication by the owner whoeverhe was. It is, therefore, I may say in England never practically necessaryto rely on prescription to establish a public way.
Now, it is here to be observed that though the length of time during whicha road is used as a public highway is an element in determining whether adedication should be inferred it is not any definite time, and a very short-period of usurpation will often satisfy a jury. But I am far from thinkingthat the law of England is here at all the perfection of reason, or such as oughtto be introduced into the law of Scotland if not so already. No case is madehere as to a right of way created by the owner, either on the titles or by suchacts (if any there be), as without any writing might, according to the law ofScotland, preclude the owner and those who claim under him from denyingthat a right of way bad been created. The sole claim is by prescription, and Ithink there is no dispute that, by the law of Scotland, the period of pre-scription is forty years. If the public had used the road to such.an extent andin such a manner that they may properly be said to be possessed of it, andthey have had such posession for forty years, they have acquired the right,and although it was shown that the owner in fee was during that time notdedicating it; but if less than forty years* possession is proved, there is not,as I understand, any principle or authority for saying that a dedication isto be presumed. And again, when the public are excluded, for forty years,their right, however clear it may be that they once had one, is gone by negativeprescription. The question, in short, is as to possession by the public oragainst the public for a period of forty years, and not, as in England, as to userby the public for such an undefined time, and in such a .manner and undersuch circumstances as to justify the inference that an owner in fee haddedicated.”—Mann v. Brodie.
Jaybwar-
DENE A.J.
Sandrasegara
r.
Sinnatamby
1928.
Jaybwab-
DBNB A.*J.
Sandraseyara
Sinnatamby
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I
I therefore hold that the complainant has failed to prove thab thewell in dispute is a public well, or that the land on which the fencestands (except, of course, that part of the public lane on which thefence stands) is a public place.
The Christian Mukkuwas are greatly “to be sympathized with.Their case is indeed a hard one. The attitude taken up by theappellants is highly unreasonable, and deserves to be condemned.I have tried to find a way of escape from what I consider to bethe legal position, but I have tried in vain. Hard cases cannot beallowed to make bad law. I am compelled to allow the appeal, andset aside the order of the Police Magistrate, except in so far as theobstruction to the public lane is concerned.
Appeal allowed.