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Present: De Sampayo and Porter JJ.1022.
SEGO ttADAR v. MAKEEN.
496—D. C. Colombo, 1,054.
Injunction—Building on another's land—Order to remove encroachment—
Defendant broke down an old house and built a new one, andin doing so encroached on a small strip of unbuilt land belongingto the plaintiff. Plaintiff prayed for an injunction to compel thedefendant to remove the building and restore the strip of land.
Held, that in the circumstances if the plaintiff could be compen-sated by way of damages, the injunction should not be granted.
rjTHE plaintiff was the owner of the house bearing assessmentNo. 22c as shown in the plan B filed of record, whilstdefendant was the owner of the house to the north bearing assess-ment No. 22b.
Defendant pulled down his old building for the purpose oferecting a new one on its site, and in the course of such erection hebroke and dug into plaintiff’s wall and wrongfully blocked a doorleading into a room in plaintiff’s bouse and also cut a portion ofthe eaves of his roof. Plaintiff also complained that defendantencroached on his premises to the extent of about 14 inches at itswidest part. He valued his right to Rs. 1,000, and claimed Rs. 250damages. The District Judge granted an injuction ordering thedefendant to remove the building.
A. St. V. Jayewardene, K.C. (with him Ratnam), for defendant,appellant.
Samaramickreme (with him Bartholomeusz), for plaintiff,respondent.
May 31, 1922. De Sampayo J.—
This is an action in respect of an alleged encroachment. Theparties are owners of two lands adjoining each other situated atPiachaud’s lane. On the plaintiff’s land, which is to the south ofthe other, there is a house occupying the whole breadth of the land.
On the defendant’s land to the north it would seem that there weresome old buildings which the defendant broke down to build anew house. He took the wall of the plaintiff’s house as the commonboundary, and he built the wall of the new house right against it.
The plaintiff brought this action alleging that there was a small
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strip of unbuilt land between bis wall and the real boundary, andthat, therefore, the defendant by building his new house right upto the plaintiff’s wall encroached on that unbuilt portion of land.He also complained that the defendant by the same work blocked adoor which existed at point “ Y ” on the plaintiff’s wall. Now theDistrict Judge has found that this small strip of land is really part ofthe plaintiff’s land, and that therefore there was an encroachment.
I should say that the strip was so tiny that the District Judge was.quite justified in his remark that if the parties had been more sensiblethey would not have gone to the expense of an action, which is quiteout of proportion to the value of any interest on either side. Thereis no encroachment on the side of the Piachaud’s lane, because itwould seem that the defendant built just on the line now claimed bythe plaintiff. But further in there is a very small strip, at one endforming a very acute angle and at the other end forming a base 14inches wide. ' As regards the door it is said that it was used to go to awater closet in the back compound along the strip which the plaintiffcalls a passage. Now with regard to that, it is quite plain that thewater closet can easily be reached without the use of this strip. Infact, one should say that the entrances from the back of the houseinto the yard behind would be very much more convenient anddecent than the one claimed. However, this is the extent of theinjury suffered by the plaintiff. He claimed, however, an injunctionto compel the defendant to remove the building and restore the stripof land. The District Judge, apparently with some reluctance, gavethe relief which the plaintiff had claimed. It is not quite possiblefor us to interfere with the District Judge’s finding as to the existenceof the encroachment. But I. question whether the District Judgeought under the circumstances to have granted the specific reliefclaimed. For it has been pointed out in the course of this argumentthat the principle both of English Equity and the Roman-Dutchlaw, is that an injuction of this sort should not be granted if theplaintiff can be compensated in damages. The plaintiff himselfvalued the damage he suffered by the unlawful acts of the defendantat a certain figure. Mr. Samarawickreme, for the plaintiff, saysthat this is not the real assessment of the damages in consequenceof the building of the wall and the blocking of the door, but damagesarising in some other way, which I cannot follow. He also says thatwe ought not in this appeal to alter the decree as to the breakingdown of the defendant’s building, because the point was not con-sidered and fully gone into in the Dourt below. Perhaps that muchmay be conceded to the plaintiff in the circumstances. In myopinion, so far as the record stands, there is nothing to show that theplaintiff cannot be compensated adequately by way of damages forany wrong which the (defendant committed. But it may be, asMr. Samarawickreme suggests, that the plaintiff, if he had a furtheropportunity, may show in what respect he cannot be compensated
adequately. I would therefore, set. aside the judgment appealedfrom, and send the case back to the District Court for the purpose ofthe District Judge considering the question of compensation tothe plaintiff in damages in lieu of the specific order to break downthe building that he has made, and also for assessing, if he came tothat conclusion, the proper amount of damages that are due tothe plaintiff.
I would make no order as to costs of appeal. The order as to costshitherto incurred in the District Court may stand.
Porter J.—I agree.