094-NLR-NLR-V-60-V.-C.-COORAY-and-another-Appellants-and-U.-P.-SAMARASINGHE-Respondent.pdf
T. S. FERNANDO, J.—Gooray v. Samarasinghe
389
Present.: Sansoni, J., and T. S. Fernando, J.
C. OOQRAY and another, Appellants, and U. P. SAMARASINGHE,
Respondent
S. C. 412—D. 0. Colombo, 642jZ
Servitude—Right to erect scaffolding on a neighbour's land for building purposes—■Analogous to servitude of right of way of necessity—Damages.
if it is iinxjossible to construct a building except by entering upon the ad-joining land and even erecting a temporary scaffolding on it, the owner of theadjoining land may be compelled to permit such entry and erection ex necessitate.In such a case, damages can be claimed only from the date of the order of theCourt granting the servitude.
^^PPEAL from a judgment of the District Court, Colombo.
T. Samerawickreme, for the defendants-appellants.
W.D. Gunasehera, for the plaintiff-respondent.
Our. adi). vult.
February 27,1959. T. S. Fernando, J.—
This appeal raises the question of the point of time at which a servitudeof the nature of a way of necessity arises.
The plaintiff and the defendants in this action are owners of landsadjoining each other. On the land of the plaintiff stood a house whichwas being rented out by him to a tenant, and on June 3rd, 1955, awall ofthis house collapsed rendering the house untenantable until the wall
1 {1954) 57 N. L. R. 31.
2»—3. N. R 2236 (5/59)
390T. jS. KEBNAKDO, J.—Cooruy v. Samarasinghe
■was reconstructed. The wall that collapsed adjoined the fence thatseparated the land of the plaintiff from that of the defendants, and it isnot in dispute that construction of the wall was not possible unless atemporary scaffolding was erected on defendants’ land to enable the build-ing operations to be completed. This the defendants were not willingto permit, and the plaintiff instituted this action claiming (a) a declarationthat he is entitled to enter the defendants’ land for the purpose of re-pairing and re-erecting the wall of his house, (b) a decree enjoining thedefendants not to prevent the plaintiff from so entering and (c)damages.
The learned District Judge, after trial, held with the plaintiff and, onJuly 17th, 1957, entered judgment as prayed for, fixing the damages atRs. 13/24 a month from July 1955. The assessed rent of tho plaintiff’shouse was Rs. 13/24 a month.
The Roman-Dutch Law recognises a servitude of the nature claimedby the plaintiff. We were referred to Hall and Kellavvay on (Servitudes,page 39, where it is stated that
“ If it is impossible to construct a building except by entering uponthe adjoining land and even erecting a scaffolding on it, the ownermay he compelled to permit such entry and erection ex necessitate(Voet, 8.2.14). ”
I reproduce below (from 2. Gane’s translation, pages 454-455) thecomment of Voet referred to above :—
“8.2.14. (XV)—Dumping of building material etc.—Also a servi-tude of a neighbour being allowed to shoot earth, rocks and stones onto his neighbour’s site, or of keeping them lodged there ; or of cuttingstones on his own ground so that chips fall on to his neighbour’s site;or of making ramps or scaffoldings on a neighbour’s site for building
purposes- ”
At the argument before us, learned counsel for the defendants did notcontend that the plaintiff was not entitled to enter upon his clients’land and erect a temporary scaffolding for the purpose of reconstructingthe wall. He limited his argument to the question that damages can beclaimed only from the date of the order of the Court granting the servi-tude. He contended that the relief claimed by the plaintiff is an.order ofCourt constituting a servitude and that this servitude comes into exis-tence only on the making of the order by the Court. He himself relied (1)on the comment by Voet (8.2.14—2. Gane’s translation, page 455)which I reproduce below:—
“ Even an unwilling neighbour could be constrained to grant suchliberty for the erection of scaffoldings, if the building cannot be carriedout in any other way. That is both because of the favour shown topublic appearance, and also on the analogy of the road which mustneeds be yielded to one who is deprived of any other way out and way
T. S. FERNANDO, J.—Cooray v. Samarusinghc
391
and (2) on another comment by Voet contained in 8,3.4,;—See 2. Gane’stranslation, page 467—in dealing with the origin of the rural servitudeof a right of a necessary way (via ex necessitate):—
“ In addition to right of way to be established or refused at thediscretion of the owner of a servient tenement, there is furthermore aright of way which must be granted of necessity by the owner of aservient tenement when the neighbouring farm has no access and
egress. It is commonly called a way of necessity But
that was in fairness extended by the commentators to all landedestates which lacked access and egress, to the extent, that is to say,that on the duty of a judge being extraordinarily invoked the neighbourshould either on receipt of a just price establish a full right of way,or should at least grant such right on sufferance, to be exercised atthe time when need should demand it; and that with the least possibleharm to the neighbour suffering it. ”
In support of his contention, defendants’ counsel has relied also on theSouth African Case of Mazista State Quarries Ltd. v. Qosthuizen et al.1In that case, an applicant claimed against the respondents an orderpendente liie restraining the latter from hindering his use of a road overtheir property. The applicant had not instituted an action against therespondents for a final grant of a way of necessity over the latter’s pro-perty, but had stated in his application that he proposed to institutesuch an action. It was held that the applicant was not entitled to theorder pendente lite claimed by him inasmuch as the Court could not inadvance give him a right which could only he acquired at a later date.
One of the recognised methods of creating servitudes is by a decreeof Court. Hall and Kellaway in their treatise on Servitudes state atpage 37:—
“ Both Voet and Grotius in the passages referred to by Maasdorpin support of his statement seem to regard partition suits as beingthe only cases through which servitudes are created by judicial decree.In two other cases, perhaps, this may be said to take place, i.e., when aparty to a suit seeks to obtain a way of necessity over his neighbour’sland by means of the action ‘ de servitude constiiuenda ’ and where anaward of arbitrators by which rights of servitudes are established ismade an order of Court as was done in . .
The claim of the plaintiff in this case being one which is recognisedon the analogy of the right of way of necessity is one which, in my opinion,becomes effective only on the making of an order by the Court, andaccordingly the contention of defendants’ counsel that damages canaccrue only from the date of the order of Court is entitled to prevail.
A further point raised on behalf of the defendants was that the damagesawarded represent the rent that could have been recovered by the plain-tiff had the defendants not prevented the reconstruction of the wall.No consideration has been paid to the circumstance that the rates were
1 (1943) T. P. D. 28.
392
DE SILVA, J.—Seneviratne v. Deen
payable by the plaintiff. Plaintiff’s house is situated within the UrbanCouncil limits of Kotte and judicial notice can be taken of the fact thatowners of house property are liable to pay rates. There is no evidenceas to the amount of the rates payable in respect of this house, but weconsider that the plaintiff should have furnished this evidence. Wewould accordingly reduce the damages by the probable amount of therates the plaintiff would have had to pay and fix the damages at Rs. Iffa month.
In the result, the appeal is dismissed subject to the modification of thedecree of the District Court that damages are payable at the rate ofRs. 10 a month as from the date of decree, viz., July 17th, 1957. Therewill be no costs of this appeal.
Sansoki, J.—X agree.
Decree, modified.