0J.Present: De Sampayo J. and Schneider A.J.191®.
TISSEBA et al. v. FRASER.
146—D. C. Negombo, 13,104.
Public Toadr^-Road naming along a canal—Erosion—User of adjoining
land by the public—Dedication.
A road lying alongside a canal disappeared little by little byerosion daring the last thirty or forty yean, and the owners of ■ theadjoining land suffered the public to nse a corresponding portionof their land as part of the road.
Held, that there was no dedication to the public.
“ There is no precedent or authority for this kind of piecemeal
dedication There are only two ways known to the Roman-
Dutch law, which is our law, for establishing a' public right of way,namely, by proof (1) that the road was constituted by the publicauthorities, or (2) that the road has been used by the publio fromtime immemorial Fromthe statement ’ of the defendant’s
1 (1896) 2 N. L. R. 36.
• (1913) 16 N. L. R. 385.
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own case it is clear that the road came into existence since she dateof the Crown grant (1662), and quitewithin living memory. I
doubt whether' the principle of dedication, which appears to be apurely English notion, is applicable to Ceylon.”
rJpEIE facts appear from the judgment.
Bawa, K.C. (with him Croos-Dabrera), for plaintiffs, appellants.
A. St. V. Jayawardene, for defendant, respondent.
October 2, 1919. Da Sampayo J.—
The plaintiffs are the owners of a land called Mandagahawatta,shown in the plan marked D 1. The plaintiffs having about twoyears ago placed a toll bar on the road which runs alongside the landas shown in the plan, the defendant, who is Chairman of the LocalBoard, Negombo, gave notice on September 18, 1918, under section88 of the Thoroughfares Ordinance, 1861, that unless within onemonth from the service of the notice they took legal proceedings toprevent the removal of the toll bar, the Local Board would proceedwith the removal of the same, and the plaintiffs brought this actionto establish their title to the ground covered by the road. It appearsthat there was an old road lying between the road in question andthe canal, which has been eaten, away by the canal and has dis-appeared, except as to a small strip at one end. The title of theplaintiffs to the land Mandagahawatta is traced to a Crown grantdated February 11, 1862, with survey plan attached, which givesthe northern and north-western boundary of the land as the oldroad. The plan D 1, which was made by the Local Board for thepurpose of these proceedings shows by a red line the boundary asgiven in the Crown grant. There is, therefore, no question thatthe plaintiffs are entitled to the land over which the present roadruns, and on which the plaintiffs have placed the toll bar. Theonus then lay upon the defendant to show that the plaintiffs losttheir title, and that the road became a public road. The defenceappears to be that for the last forty or fifty years the road has beenfreely used by the public, and that the owners of the land must bepresumed to have dedicated the road to the public. No definitetime has been relied on for such dedication, but the District Judge’sopinion is that as the canal from time to time took away portions ofthe old road, the owners of the adjoining land allowed the publicto use a corresponding portion of their land as part of the road, andthere was thus a series of dedications to the public. So far as Iknow there is no precedent or authority f°r this kind of piecemealdedication. In any case the whole question of dedication requiresconsideration. There are only two ways known to the BomanDutch law, which is our law, for establishing a public right of way,namely, by proof (1) that the road was constituted by the publicauthorities, or (2) that the road has been used by the public from
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time immemorial. See Allishamy v. Amolishamy,lThe public
authorities had at no time anything to do with this road, and theuser by the public, if any, does not go back to any time beyond thememory of man. From the statement of the defendant’s own caseit is clear that the road came into existence since the date of theCrown grant, and quite within living memory. I doubt whether theprinciple of dedication, which appears to be a purely English notion,is applicable to Ceylon. Under the English law a public right of waymay be created by statute or by dedication to the public. Dedica*tion may either be express or be implied from-the conduct of theowner of the soil, such as acquiescence in the^user of the way by thepublic under circumstances which show mi intention of dedicatingthe road to the use of the public, whether the period of user is longor short. Assuming that dedication in this sense is a mode availablehere for creating a public road, we have still to examine the facts inorder to find whether the owners intentionally devoted a portion oftheir land to the use of the public. The purchasers from the Crownin 1862 were John William Karunaratne and Jusey Fernando, andthey in October, 1862, entered into a deed of partition, by which thewestern portion, containing in extent 5 acres 21.72 perches, wasassigned to Karunaratne, the old road mentioned in the Crown grantbeing given as the northern and north-western boundary. OnMarch 22, 1880, Karunaratna sold this western portion to FranciscoFernando and Diago Pinto. In December, 1912, Francisco Fer-nando transferred his share to Francisco Juan Fernando and DiagoFernando, who in April, 1914, transferred the same to Manual Perisand his wife Lucia Fernando, who finally transferred it to the secondplaintiff in this action. In 1896 Diago Pinto’s share was given to thefirst and third plaintiffs, who in April, 1905, sold it to Julius Pinto,and bought^ it back again in 1960. It is clear from the descriptionand extent given in.these two series of deeds, from the year 1862to the year 1916, that the owners for the time being considered thepresent road as part of their land, and dealt with it on that footing.So far as these deeds go, the supposed dedication of the road to thepublic is negatived, and, on the contrary, they disclose an intentionto keep the whole land to themselves. There is no doubt, however,that a new road has come into existence over a portion of plaintiffs’land. The first plaintiff in his evidence stated that the road was“ constructed ” by the previous owners of their land. I think theDistrict Judge has laid too much emphasis on the use of the word“ constructed.” It is clear that the first plaintiff meant no morethan to say that the existence of the road was originally due to hispredecessors in title. The fact appears to be that even the old roadwas mostly used by the owners of Taladuwa estate, which adjoins it,and that when the old road gradually disappeared, the owners ofTaladuwa began to use a new track over their own land, for two of
11 Tambiah 26
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the owners were Diago Pinto and Francisco Fernando, who, as shownabove, were plaintiffs’ predecessors in title. The plaintiffs’ case isthat they exercised their right of ownership for twenty or thirtyyears by charging a toll for loaded carts which passed the road, andallowed only passenger carts to go free. The only loaded cartswhich did not pay toll were scavenging carts and butchers’ carts,and this exception is explained by the fact that the town refuse wasdumped on a portion of Taladuwa estate, and that the slaughter-house also was on that estate. The District Judge, while he doesnot reject the evidence as to the collection of toll, thinks that thetoll was not collected in respect of carts, but in respect of boatscalling at a ferry to which this road leads. It appears to me that theDistrict Judge bases this conclusion on a very small fact. Thefirst plaintiff’s books, which contains accounts for a series of years,mentions receipts for a thotupola. This word is usually applied to aferry, but I think it is also used, though loosely, to express generallya toll. The District Judge’s main reason, however, is a contradic-tion between the first plaintiff and Dominico, who collected the toll.The first plaintiff said that the toll Was collected at a toll-house onthe roadside, and Dominico said that he collected the toll where theboats halted. But both are agreed that the toll was charged forcarts which came to the ferry to unload or load goods. This is sup-ported by a number of witnesses, whose evidence cannot be lightlydisregarded, especially as it is not to their interest, as members ofthe public, to say, as they have done, that carts have paid, and areliable to pay, toll foe the use of the road. The existence of a ferryis not of much consequence. The ferry as well as a gala at the sameplace is also on a part of Taladuwa estate, and the use of the road,so far as loaded carts are concerned, is practically confined to cartswhich go to the ferry to put down or take up goods. This also appearsto me to explain the evidence of Dominico, when he said that hecollected the toll where the boats halted. The District Judge sayshe prefers to believe and act on the evidence of two witnesses calledfor the defence. One of them is Hugo Fernando, the Annavi ofSt. Mary’s Church. To my mind his evidence is valueless. Accord-ing to him the road never shifted, and the present road is the onewhich always existed. This is contrary to the admitted facts of thecase. Moreover, he does not appear to have taken carts himself,but says, generally that the public have been passing up and downthis road, and have taken carts along it for the past fifty years.This is quite harmless evidence. The only definite and relevantstatement is that Mr. Carry used to take carts to the ferry along thisroad, but Mr. Carry was superintendent of Taladuwa estate, towhich both the ferry and, according to the plaintiffs’ oase, the roadbelonged. The other witness is Mr. A. W. Corea, whose evidenceis also very harmless. He himself went in a passenger cart. Heused to send goods in hired carts to the ferry, but he never at any
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time accompanied the carts, and he says that " the toll is paid bythe owners of the carts when toll is payable.” I do not think thatthe evidence of these two witnesses has met the evidence called onbehalf of the plaintiffs, or in any way satisfies the heavy burdenwhich lay on the defendant to establish a public right of way overland which has been proved to be private property- Add to all thisthe important fact that the road was always gravelled and kept inorder by the plaintiffs and their predecessors in title, and thatneither the Local Board nor any other public authority did anythingto the road. In my opinion the circumstances negative the idea ofa dedication to the public by these owners or any of them, but it issufficient to say that the defendant has failed to prove the existenceof a public right of way.
I would allow this appesd, and give judgment for the plaintiffs asprayed for in the plaint, with costs in both Courts.
Schnbedbr A.J.—I agree.
TISSERA et al. v. FRASER