170-NLR-NLR-V-48-THE-VILLAGE-COMMITTEE-MAPE-KESBEWA-Appellant-and-SILVA-Respondent.pdf
The Village Committee, Mampe-Kesbewa v. Silva.
553
1947Present: Howard CJ. and Jayetileke J.
THE VILLAGE COMMITTEE, MAPE-KESBEWA,
Appellant, and SILVA, Respondent
S. C. 234—D. C. Colombo, 15,744.
Contract—Sale of exclusive right of ferry—Soil on either side of ferry—Shouldvendor have the property in it?
The defendant sold to the plaintiff the exclusive right of a ferry and,according to the terms of the contract, was under an obligation to placethe plaintiff in quiet possession of the two ends of the ferry.
Held, that the failure of the defendant to place the plaintiff inquiet possession of one end of the ferry was a breach of contract for whichthe defendant was liable in damages.
Per Howard C.J.—It was not necessary that the defendant should havethe property in the soil on either side of the ferry. He must, however,have the right to land on either side.
A
PPEAL from a judgment of the District Judge, Colombo. Thefacts appear from the judgment of Jayetileke J.
H. V. Perera, K.C. (with him N. M. de Silva and S. Wijesinha), forthe defendant, appellant.—The action by the plaintiff was for breach ofagreement caused by the defendant’s failure to put the plaintiff in quietpossession of both ends of the ferry. The action has been framed onthe basis that the agreement “ A ” of October, 1943, was a lease and thatby. such agreement the relationship of landlord and tenant was createdbetween the defendant and plaintiff.
The right of ferry is not a lease which entitled the lessee to be put inpossession of the thing leased by the lessor. The right of ferry is only aprivilege or a franchise which confers on the grantee, the plaintiff in thiscase, the right to carry passengers between the two ends of the ferry andtake toll from such passengers, and involving also the duty on the granteeto maintain the ferry service for the convenience of the public. Thisprivilege or franchise is also entitled to protection from being disturbedor violated by anyone. So that if the right of ferry is violated or dis-turbed the remedy is against the persons violating or disturbing thatright and the remedy in this case is clearly an injunction- against Calderaor anyone else who has disturbed or violated the defendant’s right offranchise of ferry. See Hammerton and Another v. Earl of Dysart andAnother1. Also Blackstone’s Commentaries (1768 Edit.), Vol. III.,Ch. 13, p. 219.
Originally all rights of ferries over public waters belonged to the Crown,but such rights have now been vested as far as this ferry is concerned inthe denfendant. See Village Communities Ordinance (Chapter 198).The action has not been framed on the footing that the defendant didnot have the right of ferry but only on the footing that vacant possessionof one end of the ferry was not given to the plaintiff. The action isclearly misconceived. On the action as it now stands the plaintiff hasno remedy against the defendant.
1 L. .R. (1916) 1 A. C. 57.
554HOWARD C.J.—The Village Committee, Mampe-Kesbewa v. Silva.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for the plaintiff,respondent.—The defendant agreed to confer ferry rights on the plaintiff.The defendant has failed to do so. Neither the defendant nor theMoratuwa Urban Council owned the Moratuwa end of the ferry. Calderawas in possession of the Moratuwa end of the ferry and obstructed theplaintiff in various ways in the exercise of the right of ferry. It is wellsettled law that, though the owner of a ferry need not own the land atone or both ends of the ferry, the owner of the ferry must have the rightto land on both ends of the ferry. See Peter v. Kendal'. Caldera wasin possession of, and collected toll from passengers at, the Moratuwa end.Therefore, under section 110 of the Evidence Ordinance, it is quite legiti-mate to presume that Caldera was the owner arid not the defendant orthe Urban Council of Moratuwa. The right of the defendant to land onthe Moratuwa end of the ferry has not been proved by the defendant.The action is based on breach of agreement “ A ” of October 5, 1943,and is clearly maintainable.
H. V. Perera, K.C., replied.
Cur. adv. vult.
September 18, 1947. Howard C.J.—
In my opinion the appellant did not by entering into the contract withthe respondent guarantee, as in the case of landlord and tenant, the•quiet enjoyment of the ferry. Nor was it necessary that the appellantshould have the property in the soil on either side of the ferry. Theappellant must however have the right to land on either side. In thisconnection I would refer to Peter v. Kendal In the judgment in the casethe following passage occurs at pp. 612-613 : —
“ Then it is said that this is not a good ferry, because the land onboth sides does not belong to the owner of the ferry. I am of opinion,that it is not necessary that the owner of a feiTy should have the propertyin the soil on either side. He must have a right to land upon bothsides, but he need not have the property in the soil on either. It issufficient if the landing-place be in a public highway. This is perfectlyconsistent with the principle laid down in Saville. That principle is,that a ferry is in respect of the landing-place, and not of the water.But I cannot agree to what is stated as a conclusion resulting from thatprinciple, ‘ That every owner of a ferry must have the land on bothsides of the water, for otherwise he cannot land ’. The reason givenfor his having the property in the soil is insufficient, for he may have aright to land on both shores without having' any property in the soilof either."
I agree with my brother Jayetiieke that the appellant has not provedthat the Council had the right to land on both sides of the ferry. Inthese circumstances the appeal must be dismissed with costs.
Jayetileke J.—
The defendant in this case is the Village Committee of the Mampe-Kesbewa village area. The Bolgoda Lake is partly within the limits ofthe denfendant and partly within the limits of the Urban Council of1 {1827) G B. dt C. 703 ; 108 E. R. 610.* {1827) 108 E. R. 610.
JAYETILEKE J.—The Village Committee, Mampe-Kesbewa v. Silva. 555
Moratuwa. The Willorawatte Road, which is on the Moratuwa side ofthe lake, ends at the northern bank of the lake, and the KitalandaluwaFerry Road, which is on the Kesbewa side of the lake, ends at thesouthern bank of the lake.
One Caldera, who owns a land by the side of the bank at the end of theWillorawatte Road, claims to be entitled to the bank adjoining his land.For about 25 years prior to 1943 the Village Headman of Deltara conducteda ferry service between the ends of the said roads. The headman, in thecourse of his evidence, said that Caldera refused to allow passengers toland on the bank adjoining his land, and he was obliged to take a leaseof a land adjoining Caldera’s land and disembarked the passengers there.This evidence shows that for several years prior to.1943 Caldera had beenin possession of the bank at the end of the Willorawatte Road. In theyear 1943 the defendant and the Urban Council of Moratuwa decided toestablish a ferry service between the ends of the two roads. By anindenture, D 2, dated August 30, 1943, the Urban Council of Moratuwaagreed that the defendant should have the administration and control ofthe said ferry service. On October 5, 1943, the defendant sold by publicauction the exclusive right of ferry for the year 1944 between the saidpoints. At the sale the plaintiff purchased the said rights for the sum ofRs. 1,400 payable in twelve monthly instalments of Rs. 116.67, andentered into the agreement A. It provides, iner alia :—
That the plaintiff shall not levy more than the amounts set out in
the agreement.
That the plaintiff shall post a copy of the rates in a frame with a
glass face at each end of the ferry and keep and maintain thesame in good and legible condition and well protected from waterand sun.
That the plaintiff shall cause to be erected in front of the toll
station or if there is no toll station on either end of the ferry onthe bank as near to the road as possible so as to be conspicuouslyvisible to passengers a post bearing at a height of six feet fromthe road and set at right angles to the road and having paintedon it on both sides in block letters not less than one inch in sizethe name of the ferry and toll station in English and Sinhalese.
That the plaintiff shall pay any fines or impositions inflicted
or imposed by the Chairman by reason of any breach of theconditions in the agreement._
The plaintiff says that as the ferry rights had not been claimed by thedefendant prior to 1943, and as he had to put up buildings and to erectposts, he thought the defendant should place him in possession of the twoends of the ferry, and he accordingly called upon the defendant to do so.The defendant placed him in possession of the Kesbewa end, but failed toplace him in possession of the Moratuwa end. He put a shed at theKesbewa end, and, when he attempted to put up a shed at the Moratuwaend, Caldera drove him away and did not allow him to remove thematerials he took with him. Thereupon, he wrote P 3 dated January 4,1944, informing the defendant that Caldera would not allow him to erectthe shed, or to remove his materials, or to take his canoejs up to the bank.
556 JAYKTIT«F.KE J.—The Village Committee, Mampe-Kesbewa v. Silva.
and requesting the defendant to cancel the agreement and refund hisdeposit. He received no reply to that letter from the defendant. Hethen wrote another letter P 4 informing the defendant that, owing toCaldera’s dispute, he could not charge the passengers any fare and thathe was suffering a loss of about Rs. 10.50 a day. On March 6, 1944, hewrote P 5 inquiring from the defendant whether he could stop the service.This letter shows that P 4 was sent on January 4, 1944, under registeredcover. In reply to P 4 and P 5 the defendant sent P 6 dated March 8,1944, calling upon the plaintiff to pay the rent for January, February andMarch. The plaintiff sent a reply P 7 dated March 13, 1944, through hisProctor, refusing to pay rent on the ground that the defendant failed toplace him in quiet possession of the ferry. On March 29, 1944, theplaintiff’s Proctor by his letter P 8 invited the defendant’s attention toP 7 and requested the defendant to place tha plaintiff in possession of theWillorawatte end of the ferry. To that, too, there was no reply. OnApril 24, 1944, and on May 2, 1944, the plaintiff sent to the defendantstatements P 9 and P 10 of the losses sustained by him. On September20, 1944, the plaintiff instituted this action for the recovery of a sum ofRs. 6,332.10 as damages up to December 31, 1944. The cause of actionpleaded by him in the plaint is that the defendant committed breach ofthe agreement by failing to place him in quiet possession of the two endsof the ferry. After instituting the action the plaintiff, on the advice ofhis lawyer, continued the ferry service up to the end of December interms of his agreement.
The District Judge held that the landing place on the Moratuwa sidewas not the end of Willorawatte Road, but the bank between thewater’s edge and the road, and that the defendant committed a breach ofthe agreement by failing to place the plaintiff in quiet possession of thatbank. He awarded to the plaintiff a sum of Rs. 4,152.10 as damages.This amount represents the actual out-of-pocket expenses of the plaintiff.The finding of the District Judge that the landing place is the bank issupported by the evidence of the headman and by the documents D 2and A.
At the argument before us, Mr. Perera contended that the defendantwas under no obligation to place the plaintiff in quiet possession of thetwo ends of the ferry. On the facts of the case it seems to me that thiscontention is not well founded. The agreement provides that the plaintiffshall erect in front of the toll stations or on the banks of the lake two postsgiving the name of the ferry and toll station in English and Sinhalese, andthat, if he fails to do so, he shall be liable to pay a fine. The evidenceshows that, owing to Caldera’s opposition, the plaintiff could not erectthe toll station or the post at the Willorawatte end. The Chairman ofthe defendant admitted in cross-examination that he had to give theplaintiff possession of the two ends of the ferry in order to enable him toerect the stations. He, however, withdrew this admission when herealised that it would destroy his defence. In my opinion the agreementimplies that the defendant was under an obligation to place the plaintiffin quiet possession of the two ends of the ferry. It follows, therefore,that the defendant’s failure to place the plaintiff in quiet possession ofthe bank at the Willorawatte end is a breach of the agreement for which
JAYETTLEKE J.—Ghouse v. Eliatamby.
557
the defendant is liable in damages. Mr. Ferera conceded that, if theUrban Council of Moratuwa was not entitled to the landing place at theWillorawatte end of the ferry, the plaintiff would be entitled to succeed.In view of my decision on the interpretation of the agreement, it is un-necessary for me to consider whether Caldera had title to the bank at theWillorawatte end. No issue has been framed on this point thoughevidence has been led on both sides. Caldera has undoubtedly been inpossession of the bank for several years. When he was charged by theplaintiff in the Magistrate’s Court he produced a plan of his land whichincluded the bank. He also produced some tax receipts which showthat he paid rates for the land depicted in that plan. The Chairman ofthe Urban Council of Moratuwa did not make any attempt to prove thatthe Council was entitled to the bank. His evidence shows that he wasnot aware of the existence of the bank.
For the reasons given by me, I would dismiss the appeal with costs.
Appeal dismissed.