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Present: Mr. Justice Wood Benton and Mr. Justice Grenier. July 18,1910
THE MUNICIPAL COUNCIL OF COLOMBO v.mHEWAVITARANA et al,
D. C., Colombo, 23,830.
Public road—-A dvcrsc possession by private individua l—Presc rip tton.
Under the Roman-Dutch Law prescription runs even againstthe public at large, so as to depriveit ofportions of the land
forming a public road, for, though the public cannot by merenon-use lose its right to a publicroad,it does not follow that the
right may not bo lost by adverse user.
^pHE facts are set out in the judgment of Wood Renton J.
De Sampayo, K.G., for the appellant.—The portion in disputewas once part* of a street. Section 3 of Ordinance No. 17 of 1865defines “street” a3 “any road, street, &c., whether a thoroughfareornot.” The rights of the publicto astreetare not confined to
the metal portion, but extend tothewholespace between the
fences (Harvey v. Truro Rural District Council *)• The rule of law is:
" Once a street, always a street.” A street cannot cease to be astreet by any act on the part of private persons. The public haveas much inalienable rights over the highways as they have overrivers, the seashore, &c. The rights which the public have over ahighway are not forfeited by non-user (Voet 431, 11,7). The'passage in Voet 13, 7, 7, (2 Maasdorp, 82 and 83) would not appearto apply to public roads, but to rights of wav which the publichave over private property; for Voet says that things belonging tothe public, which are used for ornament of the town, pleasure, &c.,
‘may not be prescribed .against. A fortiori highways could not beacquired by prescription. The highways only vest in the Councilfor the purpose of maintenance, &c.; the dominium apparentlyremains with the Crown or with the public.
The following cases were referred to at the argument:Turner v.
Ringwood Highway Board; * Belmorc (Countess of) v. Kent CountyCouncil;3 D. C., Colombo, 1,215; Vand. D. 0. 83; Rajakariar v.
Provincial Road Committee, Jaffna;4 Queen v. Cowasjee Edvljee.6
Bawa, for the respondents, not called upon.
" Cur. adv. vult.
» (1903) 2 Ch. 638.3 (1901) 3 Ch. 873.
* (1870) L. R. 9 Eq. 418.* (1907) 11 N. L. R. 41; 4 Bal. 4.
Ram. 1843- 55,105.
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July 1SJ91Q July 18, 1910. Wood Benton J.—
The Muni-On the facte this appeal is devoid of merits, although its short-
com^nEs are somewhat redeemed by the able and learned argument
v.Hewa- which Mr. de Sampayo succeeded in constructing in support of it.
vitoranaappenantj the Municipal Council of Colombo, seeks to vindicate
title to a strip of land in the Pettah, said to be a few perches inextent, valued at Bs. 562, and proved by an ample, body of reliableevidence to have been regarded and treated as private property forabout half a century. The Municipal Council alleges that the stripof land in suit is part of Prince street, and as such is vested in it, invirtue of the provisions of section 87 of Ordinance No. 17 of 1865,which is reproduced in section 78 of Ordinance No. 7 of 1887; thaton October 12, 1904, the testator of the defendants-respondentsunlawfully encroached upon the land and took unlawful possession .of it; and that on or about August 14, 1905, he began to dig founda-tions and to erect a building, now nearly completed, upon it. Therespondents in their answer denied that this strip of land is, or everhas been, a part of Prince street, or that the respondents1 testatorhad unlawfully encroached upon it. They admitted that he haddug foundations in the land for the purpose of building, and that hehad in fact built upon it, and they alleged that the strip of land inquestion formed part and parcel of the premises bearing assessmentNos. 23, 1st Cross street, and 53, Prince street, to which he wasentitled, and of which he was in possession. The case went to trialon two issues: (1) Is the portion of land in dispute (coloured greenin plaintiff’s plan A) part and parcel of Prince street, and as suchvested in the plaintiff Council ?(2) If so, have the defendants and
his predecessors in title acquired a valid title by prescription to thesaid portion ? It appears from the record that the respondents hadoffered to buy up the land at the appellant Council’s own valuation.This offer was not, however, accepted, and the case went to trial.The learned District Judge held that the land claimed by the Councilhad at one time, very many years ago, formed part of what wascalled Prince street, but that long prior to Ordinance No. 17 of 1865,by which the Municipal Council for Colombo was first created, ithad become vested in the owners of the property adjoining it, and,that therefore, as it had “ admittedly ” ceased for many years to bea part of Prince street, when Ordinance No. 17 of 1865 came intooperation, it was never vested in the Municipal Council undersection 87 of that Ordinance, and was not now vested in it undersection 73 of Ordinance No. 7 of 1887. In view of his finding onthat issue, he did not deal with the question raised by the secondissue, as to whether or not the. respondents' testator had acquired aprescriptive title to the property in dispute, and he dismissed theappellant's action with costs.
Mr. de Sampayo's argument in support of the appeal may, Ithink, be summarized thus. Taking as his starting point the finding
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of the learned District Judge, that this land had at one time formed j^y is,1919part of Prince street, he contended that under English Law, to WooJ)which, as the question is one of prescription, he said we were bound rkotoh J.to look, and, even if it were necessary to go so far, under Roman-Dutch Law, .the Crown could not abandon the rights of the public Councilover it. “ Once a street, always a street,” said Mr. de Sampayo, is °f Colombothe legal maxim that must be applied to the decision of the present case. ^fTronaHe further argued that the finding of the learned District Judge asto the length of the possession of the respondents’ testator was notsupported by the evidence. The last point may be disposed of atonce. Mr. de Sampayo read to us all the material portions of theevidence on this point, and I will content myself with saying thatI adopt every word of the learned District Judge in regard to theinferences that ought to be drawn from it. Moreover, we called for,and had produced before us, by an officer of the Surveyor-General’sDepartment, Pickering’s plan (P 1), which was made in 1846, andwhich, according to the learned District Judge, shows that at thatdate the strip of land had already been encroached upon, and wasnot used as a part of Prince street. In the copy of Pickering’splan (P 1 A), which was also put in evidence, and produced beforeus at the arugment of the appeal, no such encroachment is visible.
But on Pickering’s plan itself there is a distinct mark at the veryspot where the land here in dispute js situated, apparently cuttingit off from the rest of the street. The line is faint, and bears tracesof partial erasure at some time or other. But it is quite visible,and it supports the inference which the District Judge has deducedfrom its presence. In my opinion neither the Roman-Dutch Lawnor the English Law supports Mr. de Sampayo's contention thatthere can be no prescription against a public corporation, or, forthat matter, against the Crown itself, in regard to land of thecharacter with which we have here to deal. Voet is quite clear onthe point:—
Sed nec alio respectu id ipsurn, quod in d. I 2 de via pvbl. et itinerepub. dicitur, populam viam publicam non utendo amittere non posse,res merer facultatis est, quam si nullus postea actus interveniat,factum nullum quo usus impediatur: nam si quis via publica, velutre propria, usus fuerit, in eaque cedificaverit, severit, plantaverit,foderit, sepimenta posuerit, aut alia quacunque ratione impedimentofuerit, ne populus iliac transiret, et ex eo tempore annorum quadragintaspatium effluxerit, populo non contradicente, neque usum vicevindicante, nemo dubitabit, ut opinor, quin et tunc vice istius publicceusum populus prcescriptione amiaerti, dum nullum jus privatum velpublicum ex quacunque causa vel quacunque persona, quod quadragintaannorum extinctum est jugi silentio, moveri deinceps potest (Voet 13, 7,7).
I cannot accept Mr. de Sampayo’s argument that there is anythingin the passage in which Voet subsequently explains (Voet 44, 3, 11)
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The Muni-cipal Councilof Colombo«. Hewa-vitarana
that there can be no prescription against property, jure Reipubliciead omatum et adspectum publicum urbis pertinenti, to require us tohold or to justify us in holding that the express language, which I havecited above, should be restricted to roads of a private character.Nor do I think that it results from any of the English cases towhich Mr. de Snmpayo referred us, that a private individual maynot prescribe against the Crown or a local authority for a pieceof land such as we are here concerned with, even if it adjoins astreet, and may itself at some remote time have been used for someof the purposes to which a street is put. In the case of Turner v..Ringwood Highway Board,' Vice-Chancellor James expressly pointsout that many of the acts relied on by the adjoining proprietor asacts of ownership establishing a title as against the Highway Boardwere only acts which, under the English Statute Law, an owner ofland adjoining a highway was entitled to do, and he said that itcould not be held that the mere tolerance of acts of that characterby the Highway Board could extinguish the rights of the public. InHarvey v. Truro Rural District Council,2 it was held that iD the caseof an ordinary highway running between fences, although the spacebetween .them may be of a varying and unequal width, the right ofpassage prima facie, and unless there be evidence to the contrary,extends to the whole of the ground between the fences, and that thepublic are not confined to the metal portion. All the space betweenthe fences is presumably dedicated as highway, unless the natureof the ground or other circumstances rebut that presumption. Themere disuse of a highway for any length of time cannot deprive thepublic of their rights in respect of if; and the mere consent of apublic authority to an obstruction or encroachment upon it is
ineffectual for the purpose of legalizing that obstruction or encroach-ment. It is obvious that in this decision the question now beforeus is treated as being one dependent on the evidence in each case.I do not think that the circumstances in Harvey v. Truro RuralDistrict Council are at all analogous to those with which we havehere to deal. We are not here concerned with a piece of landenclosed between two fences distinctly marking off a highway road.We have to do with a strip of land which indeed adjoins a street, butwhich for more than living memory has been treated, first by theCrown and afterwards by the Municipal Council on the one hand.,and by the successive owners of the land on the other, as formingno part of it, but as private property appurtenant to these premises.I would point out that in the case of Belmore (Countess of) v. KentCounty Council,3 it was held that, even as regards unenclosed spacesby the sides of a metal highway, there is no invariable presumptionthat the highway extends to the fence on either side, and that thenature of the district, the width and level of the margins, and the
1 (1810) L. R. 9 Eg. 422.* (1903) 2 C'h. 638.
’ (1901) 3 Ch. 873.
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irregularity of the lines of fence are circumstances to be taken into July 18,2910account in determining the fact of dedication. At the most the Woopevidence in the present case cannot be put on a higher level than Renton J.that in Behnore (Countess of) v. Kent County Council, and I do not Muni-myself think that it can fairly be placed so high.czpal Council
It appears to me, therefore, that there is nothing either in Roman-Dutch Law or in English Law to prevent us fvom holding on the vitaranaparticular facts of this case, and I would propose to hold, first, thatthe land in question is land of a character that can be acquired byprescription as against either the Crown or any local authority, andin the second place, that it has been so acquired by,the respondent.
Taking, as 1 do, that view of the evidence, there is no need for usto consider Mr. de Sampayo's last point, as to whether the Roman-Dutch or the English Law should be applied to the determinationof this case. It is immaterial which of. these laws we follow.
Under them both the appellant’s case fails. I would dismiss theappeal with costs.
In this action the plaintiff Council seeks a declaration of title to asmall strip of land coloured green in the plan A filed with the plaint.
It was alleged by the plaintiff that this strip formed part of Princestreet, and on the issues framed at the trial, the defendants havingclaimed the land by right of prescriptive possession, and havingdenied that it ever formed part of Prince street, and was thereforevested in the plaintiff Council, the onus was on the plaintiff Councilto establish its title.
. The cause of action alleged was that the testator of the defendantsunlawfully encroached upon Prince street on or about October 12,
1904, and took unlawful possession of the strip of land in question,and on August 14, 1905, unlawfully began to dig foundations andto erect a building on the land. In view of the evidence, the effectof which has been rightly appreciated by the District Judge, andto which I shall presently refer, this cause of action is somewhutremarkable, to say the least of it. Now, let us see how the plaintiffCouncil has discharged the onus, which was clearly on it, on itsaffirmative proposition that this strip of land formed part of Princestret. The streets of the Pettah of Colombo were laid out, Ibelieve, during the Dutch occupation, and although it would beextremely difficult to obtain particulars after the lapse of so manyyears as regards the width of any particular street, yet, as theplaintiff Council was suing for a declaration of title, it was bound toplace before the Court all the evidentiary materials at its commandon the point. An attempt was made to adduce hearsay andsecondary evidence, for I find that Im Skelton, Municipal Engineer,was asked to state the result of his examination of certain documents,which were not produced, in order to show that the streets in Pettah
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July 1$, 1910 were originally fifty feet in width, and on defendants’ counselGbknib* J. objecting, the District Judge properly ruled that the evidence was-—quite inadmissible, in the following terms: “ There is no material
c|paZ Council on wWch the Court can decide whether the witness* conclusion isof potombo correct, unless the documents are produced. I am informed that ittn’utrana' *s impossible to produce the documents.** We have, therefore, nolegal evidence as to the original width of Prince street, and theplaintiff’s case was therefore defective in a most material part. Theabsence of the evidence I have indicated rendered it almostimpossible for the plaintiff to prove any such encroachment as isalleged, unless it was in a position to adduce strong proof that thestrip of land in question was used by the public as a part of Princestreet from and before the time when the first Municipal CouncilsOrdinance came into operation in 1865.
The learned District Judge has very carefully considered anddiscussed the evidence, and I agree generally with the conclusions behas arrived at. It is clear to my mind that this strip of land neverformed part of Prince street within the memory of man, and that forhalf a century and oyer it was used and treated"'as private property.The evidence on this point is overwhelming. I do not accept thefinding of the District Judge upon the evidence he refers to in hisjudgment “ that the strip of land did very many years ago form partof Prince street.** To support such a finding there must be, in myopinion, proof of an incontestable character. Pickering's plan, whichwa smade in 1846, shows an encroachment. The encroachment musthave existed before 1846. The first Municipal Councils Ordinancewas passed in 1865. No steps were taken to recover this allegedencroachment till nearly forty-five years after, and then the plaintiffCouncil comes into Court with a cause of action which entirely ignoresa state of active and continuous possession by defendant's testator andhis predecessors in title for fifty years or so. I do not attach muchimportance to the fact that the premies conveyed to defendant’stestator was described as being of the extent of 10.37 perches.The words used in the certificate of title are “10.37 perches more orless." But this is certain, that after this certificate was issued to. defendant’s testator in September, 1904, he naturally looked uponthe strip of land as forming part of the premises conveyed to him,and began to make use of it for building purposes.
It was admitted by appellant’s counsel that the strip was nevermetalled, and had not been used for wheeled traffic. The evidence of. Sourjah, one of the plaintiff’s witnesses, is clear on the point. Thestrip is so situated in relation to the metalled roadway that it wasentirely out of the line of foot passengers and wheeled traffic. And,therefore, the inference seems to me irresistible, especially in view ofthe fact that neither the Crown before 1865, nor the plaintiff Councilafter that year, until the present action was instituted, laid any claimto it; that it was regarded both by the Crown and the plaintiff Council
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as private property, and not as forming part of Prince street. TheJulylSti$lO
plaintiff Council seems to have been roused into action only after GbkniebJ.
the testator of the defendants began building operations, and not.
,,.,… ,t ., ..,, The. Mum-
to have taken the slightest notice of this strip. Although for forty council
years and more it had been put to certain distinct uses compatible
only with private ownership, I will assume, however, that the strip Parana
did form part of Prince street at some indefinite time in the remote
past. Plaintiff's counsel based an argument upon this, and asserted
that a street cannot form the subject of prescriptive possession, and
that once a street always a street, is the legal maxim applicable to
this case. This argument does not find support in 'the Roman-Dutch
Law, for prescription will run even against the public at large so as
to deprive it of portions of the land forming a public road, for though
the public cannot by mere non-use lose its rights to a public road,
it does not follow that the right may not be lost by adverse user
(Maasdorp, vol. //., 83, citing from D 43, 11, 7 and Voet 13, 7, 7).
In Ceylon it is, I believe, accepted law that a title by prescriptioncan be acquired against the Crown by adverse possession for a thirdof a century and upwards (D. C., Colombo, 1,215; Vand. D. C. 83).
So that even on the assumption that this strip was originally Crownland, at a period anterior to the passing of the first MunicipalCouncils Ordinance of 1865, the defendant’s testator and hispredecessors in title have by adverse user acquired a good legal titleby prescription. The English authorities cited by Mr. de Sampayo,and which are referred to in the judgment of my brother, do notapply at all to the facts of this case. The facts and circumstancesof each case of this kind must first be clearly found and ascertainedbefore the law contained in the maxim—once a street always a street—is applied. I would only refer to the case of Belmore (Countessof) v. Kent County Council, in which it was laid down that there isno invariable presumption that the highway extends to the fenceson either side, and that the nature of the district, width and levelof the margins, and the irregularities of the line of fence arecircumstances to be. taken into account in determining the fact ofdedication. In the present case there is absolutely no evidence toshow what the width of Prince street was when it was first laid out.
There were no fences on either side fixing the width of the street.
The strip of land in question was, on the contrary, never used as partof Prince street. It was never metalled as almost all streets in acity are for wheeled traffic. No such traffic ever passed over it,and the evidence adduced by the defendants shows that there werefruit trees on it, that it was used as a small flower garden, and thatthe plaintiff Council took steps only in 1904 to assert its right to it.
In my opinion this action was altogether an ill-advised one,, andit was very properly dimissed by the District Judge. I wouldaccordingly dismiss the appeal with costs in both Courts.
THE MUNICIPAL COUNCILOF COLOMBO v. HEWAVITARANA et al