047-NLR-NLR-V-52-THAMBAPILLAI-Appellant-and-NAGAMANIPILLAI-et-al.-Respondents.pdf
1950Present: Gratiaen J.THAMBAPILLAI, Appellant, and NAGAMANIPILLAI et al.,
Respondents
S. C. 141—^-C. R. Kalmunai, 364[L.
Servitude—Right of way—Acquisition, by ■prescription—Elements necessary—Sub-stitution of one track for another—User for full prescriptive period necessary.
It is a pre-requisite to the acquisition of a right of way by prescription thata well-definedand identifiable course or track should havebeenadversely
used by the owner of the dominant tenement for over ten years. Where,therefore, a defined track has beep used for an insufficient period of time toestablish rights by prescription, it would not be legitimate to take into account,for purposes of prescription, an earlier period when passage over the servienttenement wasenjoyed in a general way withoutreference to anyparticular
course or track.
Although the substitution of one track for another may he permissiblewhere a rightof way in general terms has comeinto existence bygrant or
by disposition,this principle has no application incases where a servitude is
claimed by virtue of prescriptive user. If a new track is substituted foranother, it must, in the absence of a notarial grant, be used for the fullprescriptive period before any servitude in respect of it can. be established. '
A PPEAL from a judgment of the Court of Requests, Kalmunai.
Renganathan, for the defendant appellant.
P. Navaratnarajah, with V.pondents.
Arulambalam t for the plaintiffs- res-Cur. adv. vult-
s
May 22, 1950. Gratiaen J.—
In this action the plaintiffs, as co-owners of the land described inparagraph 2 of the plaint, claimed a right of way over the propertyof the defendant, who is an adjoining land-owner, along a defined traekleading to a public road. This servitude was claimed by right ofprescriptive user and, in the alternative, as a right of wav of necessity.
The evidence of witnesses called by the plaintiffs establishes that thedefined track over which a right of, way was claimed had come intoexistence only two or three years before the present action was instituted;until then, the plaintiffs had not used this track but had for well overten years exercised, in a general w&y and not along any particular track,rights of access over the defendant’s land to the public road. Onthis evidence the learned Commissioner held that the plaintiffs wereentitled to judgment by virtue of prescriptive user. _ He thereforeconsidered it unnecessary to record his finding on the plaintiffs’ alter-native claim to a right of necessity.
In my opinion the defendant’s appeal is entitled to succeed. Thejudgment is based on the assumption that a right of way over the definedtraek of recent origin had been acquired by prescription. It is a pre-requisite to the acquisition of a right of way by prescription that a well-defined and identifiable course or track should have been adverselyused by the owner of the dominant, tenement for over ten years—Karunaratne v. Gabriel . A person who merely strays across an openland wherever it is most convenient at any given point of time cannotthereby acquire prescriptive right—Kandiah v. Seenitamby 2. In thepresent case, as I have said, the traek in question has been used by theplaintiffs for an insufficient period of time to establish rights by pres-cription, and it would not be legitimate to take into account, for purposesof- prescription, an earlier period when passage over the servient tenementwas enjoyed in a general way without reference to any particular courseor track.
Learned Counsel for the plaintiffs asked me to hold that the new' trackover w'hieh a right of way is now claimed had been substituted, by-agreement betw'een the owners of the dominant and the servient tene-ments, for the rights which the former had previously exercised andenjoyed. In the first place, there. wras no averment or proof of anysuch agreement. In any event, an agreement of this kind, if established,would have been of no avail. The substitution of one traek for anothermay be permissible in certain circumstances, where a right of way ingeneral terms has come into existence by grant or by disposition (Voet8-3-8), but this principle has no application in cases where a servitudeis claimed i>y virtue of prescriptive user—Kandiah v. S-eanitamby – ;MorgappaJi v. Casie Ghetty 3; Madanayake v. Timotheus 4. If a new' trackis substituted for another, it must, in the absence of a notarial grant, beused for the full prescriptive period before any servitude in respect of it.can be established. The€ judgment of Sampayo J. in Gosrta v. Livera s
does not seem to me to take a contrary view. It dealt with a specialcase whei'e the existence of a right of way, subject to. an agreed deviation,was admitted by the owner of the dominant tenement. It has noapplication, as Ennis J. points out in Morgappah v. Casie Ghetty , wherethe acquisition of a servitude by prescription is denied. With greatrespect, I share the doubts expressed by Soertsz, J. in Dias v. Fernando 2as to whether Koch J. was justified in holding .that Costa v. Livera 3departs in any way from the general principle which the earlier decisionsof this Court have laid down. Sampayo J.’s later ruling in Kandiah v.Seenitamby * shows that this distinguished Judge very clearly recognisedthe limited operation of the doctrine laid down in Voet 8-3-8.
In the present case a defined tract has been used for a short periodof time in substitution for a vague and general user of the servienttenement in a manner which the law does not recognise as a mode ofestablishing servitudes by prescription. In the result, the plaintiffshave failed to prove that they have acquired a right of way over thisparticular defined track or, for that matter, over any other part of theland. The position might have been different if there had been onlysome slight deviation (for the convenience and with the concurrence ofall the parties) of a defined track over which prescriptive rights hadbeen acquired (vide Rubidge v. McCabe s).