Silva and Fernando.
1944Present: Howard C.J.SILVA, Appellant, and FERNANDO, Respondent.
183—C. R. Negombo, 45,437.
Servitude aquae baustns—Right to draw water jrom a well-—Road and landintervening between the dominant and the setrvient tenement.
Plaintiff claimed a servitude of drawingwater from the defendant's
well. Ill order to reach the well plaintiff has to pass from her own land,proceed along a devata road and then pass over land in ownership otherthan that of the defendant until she reaches the well.
Held, that plaintiff was entitled to assert the right of aquae haustus.
PPEAL from a judgment of the Commissioner of Requests, Negombo.
H. W. Jayetvardene, for the first defendant, appellant.
Ju. A. Rajapakse, for the plaintiff, respondent.
Cur. adv. vult.
HOWAH.D C-.J.—Silva and Fernando.
February 4, 1944. Howard C.J.—_
In this case the plaintiff complained that the first defendant hadwrongfully obstructed her from drawing water from a well situatedin the defendants’ land. The remaining defendants admitted theplaintiff’s claim for a declaration that she was entitled to draw waterfrom the well. The learned Commissioner found in favour of the plaintiffand awarded her nominal damages fixed at Rs. 10 and costs in the classin which the action was brought.
In contending that the Commissioner came to a wrong conclusion,Mr. Jayewardene has taken the point that the plaintiff’s action cannotsucceed inasmuch as her land, the dominant tenement, is separated fromthe servient tenement, the first defendant’s land, by a public road. Theplaintiff’s land does not adjoin that of the first defendant. In order toreach the well the plaintiff has to pass from her own land, proceed alonga devata road and then pass over land in ownership other than that of thefirst defendant until she reaches the well in the first defendant’s land.It was established in evidence that the plaintiff had drawn water fromthis well for a period of thirty or forty years. Mr. Jayewardene alsoconceded that the plaintiff would have been entitled to claim the rightto draw water if to reach the land of the first defendant from her ownland the plaintiff had merely to cross a public road or river.
The burden is on the appellant to show that the Commissioner came to awrong conclusion and in this respect Mr. Jayewardene has little authorityto call in aid. In Amarasuriya v. Ramanathan Chettiar1 it was heldby Maartensz and Hearne JJ. that, where the plaintiff claimed theservitude of a cart way over the defendant’s land which was separatedfrom the plaintiff’s land by an intervening field over which the plaintiffhad only a right of footway, the plaintiff was not entitled to claim theservitude of a cart way unless he was entitled to a similar servitudeOver the intervening land. In his judgment Maartensz J. at p. 87cited the following passage from Voet, Bk. VIII., tit. 4, s. 19:—
“ There is, lastly, this common characteristic, that in every praedialservitude the dominant and servient tenement ought to adjoin oneanother; which proximity, however, ought to be judged rather fromthe advantage which is afforded and the capability of a servitudebeing imposed, than from the fact that the two properties touch oneanother. For although there is a distinction between urban and ruralservitudes in this, that whilst as a rule, in the case of rural servitudesa servitude is prevented by an intervening tenement not' subject to aservitude, nevertheless, in urban servitudes it is not so; for the servi-tude preventing the blocking up of lights or view, or preventing theraising of buildings, can be imposed on a tenement between whichand the dominant there is another tenement, the liberty of whichremains intact; provided only that the dominant and servient tenements are not so far distant from one another that they cannot be seenthe one from the other. But in rural servitudes as well, a tenementnot bordering on the dominant tenement can be subject to a servitudeto it, if only the intermediate tenement owes the same servitude.
1 40 N. L. R. 85.
HOWARD C.J.—Silva and FeYnando.
For which reason it became the custom that water could lawfully beled by right of servitude through the adjoining estates of more than oneperson, and that one and the same servitude of passage, driving, and:way, could be constituted over several farms of several owners; andthe right of drawing water Was not stopped by the fact that thereexisted an intervening public road or place/1
Mr. Jayewardene has argued that this passage is an authority for hiscontention. The passage to my mind is, however, an authority to showthat, although the dominant and servient tenements do not adjoin,water could lawfully be led by right of servitude through adjoiningestates of more than one person provided each was subject to the sameservitude. Moreover, the right of drawing water was not stopped by thefact that there existed an intervening public road or place. The followingpassages on p. 88 of the report are also in point: —
“ Maasdorp (Institutes of Cape Law, Book II., p. 168) dealing withthe requisites of proximity says (citing Voet VIII. 4, 19 as his autho-rity). * An urban servitude, for instance, may subsist though the twotenements are separated by intervening properties which are free fromservitude; but this cannot be the case with respect to rural servitudes,which require that the intervening properties shall be subject to someservitude, though not necessarily the same as the servient property,in order to bring the latter into touch or communication with thedominant tenement .
The dominant and servient tenements not being physically in touch,the servitude, whatever it is, over the intervening tenement, must beof such a kind, as enables the plaintiff to exercise the right of cart wayup to the dominant tenement ….
The passage in Voet is not inconsistent with the passage in Maasdorp."Voet was referring to servitudes which are continuous between thedominant tenement and the other terminus such as the servitudes ofleading water, passage driving and way. Maasdorp was referring toservitudes generally and in the case of some servitudes the servitudeover the intervening land need not be the same. As, for instance, theservitude aquae haustus which could be enjoyed by the dominanttenement even if there is a land intervening if it has a right of wayover the intervening tenement.”
The passages cited from Maasdorp and Voet in the judgment of MaartenszJ. in my opinion support the judgment of the learned Comrnissioner.The devata road in question must be regarded as a via vicinalis over whichthe plaintiff had a right of servitude as a member of the public whoseland abutted on it, vide Appuhamy v. Alapatilta1 and Peiris v. Inhabitantsof Village Committee, Paluwa Peruwa2..
The case of Vytialingam v. Murugesu3 vas also cited by Mr. Jaye-wardene in support of his contention. This case, however, dealt notwith a right of aquae haustus, but with the assertion of a right of jus-fhtminis, that is to say a right to allow the water of one land to flow overanother’s ground. It was held that the intervention of a public laneprecluded the exercise of such a right. The facts of that case have,1 7 C. B. R. 107.* 40 N. L. R. 54.
1 1 Bed. Rep. 157.
Wilhelmson v. The Attorney-General.
therefore, no bearing on the assertion of a right of aquae haustus. Mr. Jaye-wardene has also referred me to Volume 1 of Huber’s Jurisprudence of MyTime, and in particular the following passage that occurs at p. 330: —
“ Seventhly, in all servitudes neighbourhood or contiguity is requisite,but more in urban than .in rural servitudes, for in most of the formerthe houses must be actually in contact. In country servitudes therule is not so strict, but the peculiarities of each servitude and of eachspecial property must be considered. Thus, foot-path, the drivingof animals or vehicles, right to draw water, to water stock and so forthmay also be established in cases where a high road runs between thetwo properties, but water-leading cannot so exist, since the road maynot be excavated.
X can find nothing in this passage to support Mr. Jayewardene’scontention.
For the reasons I have given, I have come to the conclusion that theverdict of the learned Commissioner was in accordance with the law andthe appeal must be dismissed with costs.
SILVA, Appellant, and FERNANDO, Respondent