ROSE C.J.— Vythilingam v, Vairamuttu
1953Present: Rose C.J.VYTHILINGAM, Appellant, and K. VAIRAMUTTU,Respondent
S. C. 244—C. R. Mallakam, 14,589.
Servitude—Use of a well—Does it include the use of the well sweep ?
A servitude giving right to a “ share of the water ” in a well does not includethe r:ght to the use of the well sweep if no mention of the well sweep is madein the grant.
j^^.PPEAL from a judgment of the Court of Requests, Mallakam.
Thiagalingam, Q.C., with C. Vanniasingham and C. Shanmugana-yagam, for the defendants appellants.
T. K. Curtis, for the plaintiff respondent.
Cur ctdv. vult.
November 11, 1953. Rose C.J.—
This matter concerns an alleged servitude involving the use of a well by- the respondent on the appellant’s land. The plaintiff respondentrelied on a document P 1 dated 4th December, 1919, which states inter
ROSE C.J.—Vy'hilingam. v. Vairamuttu
alia—and the position is not disputed by the defendants-appellants—•that the premises conveyed included a “ share of the water in the well…. and the right of the usual way and watercourse ”.
The appellants concede that the respondent is entitled to a share of thewater in the well and the use of any aqueduct or water course that existsand to the necessary access to the well. The point at issue in this case,however, relates to the use of a well sweep which has been constructedupon the land of the appellants and which it is, no doubt, convenient forparties drawing water from the well to use.
It is to be noted that no mention of the well sweep is made in the Deedand it is not suggested by the respondent—and the finding of the learnedCommissioner does not support that position—that there was sufficientevidence of prescriptive user of the well sweep.
The respondent contends that the right of way granted to him under theDeed P 1 must reasonably be construed as including the right to use thewell sweep on the appellant’s land. He further contends—and this maywell be true—that he himself contributed to the expense of the recon-ditioning of the well sweep in question. Be that as it may, the onlyquestion with which I am concerned in this case is whether a servitudewhich includes the use of the well sweep has been estr blished. Learnedcounsel for the respondent has referred me to an unreported judgment ofde Sampayo J. (S. C. No. 182—C. R. ChavakachcheriNo. 20,2631) in whicha similar dispute as to the use of a well and a well sweep was considered.
It is to be noted in that case that the question under consideration wasthe extent of the relief which was intended to be granted to the plaintiffby the original decree in the case. The original decree as drawn upby the Commissioner of Requests was to the effect that the plaintiff wasentitled to draw water from the well in question and to use a certainpath to go to and from the well. The Commissioner of Requests ex-pressed his view that the decree merely gave the right to the plaintiff todraw water which he might do by means of a bucket and a rope or anyother way and that he had no right under the decree to the use of thewell sweep for the purpose of drawing water. De Sampayo J., after com-menting on the fact that the dispute appeared to be trivial—as indeed itdoes in the case which I am now considering—pointed out that the decreein question was interpreting the judgment of his (de Sampayo’s) own, andhe proceeds to state “ I must say in regard to my own judgment jn appealon the previous occasion that I never intended to restrict the plaintiff’sright merely to draw water. The well means not merely the actualhole in the ground but the entire arrangement by which it can be used.That being so it seems to me that it is quite unreasonable to disconnect thewell sweep from the well itself ”. The learned Judge, however, goes on topoint out that some practical difficulties might arise if, for example, thesweep were to go out of order or were to require reconditioning ; in whichcase he added the hope that the good sense of the parties might besufficient to resolve such difficulties.
Now, it, may well be that in the facts of that case the order in questionwas appropriate—it would, of course, depend entirely upon the nature of1 S. C. Minutes of February, 1916.
Lambert Alwis v. Ratnayake
the evidence which was adduced in support of the servitude claimed. Butunfortunately it does not seem to me to be sufficient for this court to relyupon the good sense of parties, when it is clearly its duty to adjudicateupon the parties’ legal rights.
A servitude is a right that must, according to all the authorities, beconstrued strictly and I am attracted by the argument of learned counselfor the appellants that it would be wrong to permit the respondent,under the guise of exercising a servitude, to enlarge or extend his rightwhich, according to the Deed P 1, comprised a share of the water in thewell and the right of the usual way and watercourse, so as to cover theright to use a well sweep which is not mentioned in the Deed and which isthe property of the appellants.*
It may well be that the most convenient and practical way of drawingwater from this well is by means of the sweep. The fact remains, however,that on the evidence adduced in this case no prescriptive user of thewell sweep has been established and there is no finding by the learnedCommissioner to the effect that it has.
It may well be that if the respondent has paid monies to the appellantsfor the erection of the reconditioning of the well sweep he might be able tomaintain a claim on some contractual footing. I am, however, notconcerned with that aspect of the matter. The only claim which was putforward by the respondent and was adjudicated upon by the learnedCommissioner was this claim by way of servitude.
While I have a certain sympathy for the respondent in this matter Ifeel that it would be introducing a dangerous principle to assist him byextending his right, which is carefully defined in his Deed, to cover thewell sweep.
That being so the appeal is allowed. The judgment of the learnedCommissioner is set aside and judgment entered for the defendantsappellants with costs here and below.
V. VYTHILINGAM, Appellant, and K. VAIRAMUTTU, Respondent
ROSE C.J.— Vythilingam v, Vairamuttu