027-NLR-NLR-V-52-WADUGANATHAN-CHETTIYAR-Appellant-and-GUNASENA-Respondent.pdf
1950Present : Jayetileke C.J. and Swan J.WADUGANATHAN CHETTIYAR, Appellant, andGUNASENA, Respondent
S. C. 457—D. C. Kandy, 1938 L
Sale—Two portions of same land—Sale of one portion together with its appur-»• tenances—Meaning of “ appurtenances ”—Effect on the -rights of the owner ofthe other portion.»
If a person erects » house and sinks a -well thereto in another portion of hisland and conveys water by pipes tq his house, and afterwards sells the housewith the appurtenants, excepting thl land, or sells the land to another reservingto himself the house, then, the pumps, machinery, pipes and buildings installedat the well pass with the house because they are necessary and quasi-appurte-nant thereto.
A PPEAL from a judgment of the District Court, Kandy.
Lot A and lot B were two portions within a rubber, tea and cocoa,estate. Lot A contained the factory and lot B contained the bungalow.To provide the factory with a constant supply of water a well was sunktwo miles away and pumps, machinery, pipes and buildings wereinstalled at the well to take the water up to the bungalow and fromthe bungalow, through pipes, to the factory. There was no doubt thatthe pumps, machinery, pipes and buildings were installed in order toget water to work the factory during drought.
When the estate was sold by the owners, the purchaser transferredseveral portions of it to different persons. Lot A, which contained thefactory, was sold to the defendant along with 1 ‘ the machinery used foror in the working of the factory ” and “ the appurtenances belonging to orappertaining or said to belong or appurtenant to the factory blockLot B, which contained the bungalow, was sold to the plaintiffs togetherwith “ the machinery, pipes, sheds and other buildings made or usedin connection with the water supply to the bungalow ”.
The plaintiffs instituted this action against the defendant to be declared,the owners of the pumps, machinery, pipes and buildings installed atthe well.
H. V. Perera, K.G., with C. Thiagalingam. and V. Anulambalam, forthe plaintiffs appellants.
N. E. Weerasooria, K.C., with C. E. S. Perera,> H. W. Jayewardene,J. ~W. Subasinghe and Izadeen Mohamed, for the defendant respondent.
Car. adv. milt.
November 7, 1950. Jayetileke C.J.—'
The plaintiffs instituted this action against the defendant to be declared,the owners of the pumps, machinery, pipes and buildings at B in the plan(P7) dated February 9, 1948, made by E. if. Claasz, licensed surveyor,and for the recovery of damages.
Tlie Land and Produce Co. Ltd. (hereinafter referred to as the Company)owned the following estates which were planted with rubber, tea and■cocoa: —
Maha Levakanda, containing in extent 885 acres 3 roods 6 perches.
Sunderland Estate, containing in extent 209 acres 1 rood 35 perches.
North Matale Estate, containing in extent 823 acres 2 roods 33
perches..
All the' estates were situated in the Matale District which was subject"to very severe .droughts for about six months in the year.
By an indenture bearing No. 5237/1047 dated August 28, 1943, attested(by S. A: Wijetilake and Neil de Saram, Notaries Public, (PI), the Companyagreed to sell the said estates to Habeebu Mohamadu, Basamma Rama-samy, and E. M. Greddes for a sum of one million one hundred thousandaupees (Es. 1,100,000).
The recitals in the indenture bearing No. 5264 dated November 1,1943, attested by S. A. Wijetilake, Notary Public, (P2), show that HabeebuMohamadu, Basamma Ramasamy, and E. M. -Geddes had entered intothe following agreements among themselves at the time they enteredinto the indenture PI: —
(a)' That Habeebu Mohamadu should pay the Company a sum ofUs. 352,000 and take a transfer of Maha Levakanda Estate. 'i(6.) That Basamma Ramasamy should pay the Company a sum ofBs. 192,500 and take a transfer of Sunderland Estate. ‘
■(c) That E. M. Geddes should pay the Company Bs. 555,000 and take atransfer of North Matale Estate.
By the indenture P2 the Company transferred Maha Levakanda Estate-to Habeebu Mohamadu, Sunderland Estate to Basamma Bamasamy,■and North Matale Estate to E. M. Geddes.._
The factories for manufacturing rubber, tea and cocoa stood on NorthMatale Estate and they were all included in the transfer to Geddes..The evidence given at the trial by Geddes shows that, when he enteredinto the indenture PI, he had agreed to transfer to the defendant all the•factories together with an extent of thirteen acres surrounding them for asum of Bs. 130,000, and that the defendant paid him a. sum of Bs. 12,500to‘enable him to pay his share of the deposit that was given to the Company-when PI was executed, and the balance sum of Bs. 117,500 direct to'the:•Compalhy. He said further that, from the start, the defendant wasinterested in buying the factory and the block of land on which thefactory stood and nothing else, and that he was “ merely the nominee ofthe defendant for the factory block ”.–
The defendant lived quite close-to North Matale Estate for many years;and the probability is that he was aware that the pump and machineryat B in P7 were essential to work the factory.
On the same day that P2 was executed Geddes executed several deedswhereby the transferred several portions of North Matale Estate reservingto himself the bungalow block in extent about 400 acres. He transferred,(a) to the defendant by* deed 5265, attested by S. A.- Wijetilake,'Notary Public (P3), a divided allotment of land called- and.known as “ the North Matale Eactory Block ” containing
in extent 13 acres together with the rubber, tea andcocoa factories, stores, teamaker’s, clerk’s and engine driver’squarters, office rooms, cooly lines and all other buildings thereonand all the machinery, tools and implements used for or in theworking of the said factories, together with all the furniture,fittings and fixtures thereon, and all the appurtenances what-soever to the said North Matale Factory block belonging orappertaining or be said to belong or be appurtenant theretoand all rights, privileges,* easements, servitudes, rights of wayand appurtenances whatsoever to the said premises belongingor used or enjoyed therewith or reputed or known as part andparcel thereof..
(6) to one Wimalasena and another by deed No. 5267 attested byS. A.. Wijetilake, Notary Public (P4), an extent of 152acres called the North Matale Madawela block “ exceptingand reserving unto the vendor and bis aforementionedowner or owners for the time being of all that Estatecalled and known as North Matale Estate the full and free rightand liberty and licence at all times of using the water from thewell or spring situated on the said premises for supplying waterto the bungalows on the said North Matale Estate for all pur-poses as heretobefore used or enjoyed and all pumps, machinery,pipes, sheds and other buildings made or used in such connectionwhich shall belong to and remain the property of the saidvendor”.
The defendant said that the deeds were executed at the sametime but there is no evidence that he was aware of the contentsof P4. Ten months later, Geddes transferred to one Stevenson about235 acres out of the bungalow block, and he was left with 165 acresof tea with the bungalow, which he transferred to the plaintiffs by deedNo. 2973 dated November 19, 1945, attested by Nigel I. Lee, NotaryPublic (P6), together with the pumps, machinery, pipes, sheds and otherbuildings made or used in connection with the water supply to the saidbungalow standing on the North Matale Madawela Block, and the fulland free right and licence at all times of abstracting water through theexisting pipe line from the well or spring marked L in inset of plan No.363 dated October 12, 1943, made by E. B,. Claasz, licensed surveyor, forthe use of the bungalows on the said premises, and to enter upon and pass,and repass on and along the said North Matale Madawela Block for thepurpose of repairing the said well or spring and repairing and replacingthe said pumps, machinery, pipes, sheds and other buildings withlabourers or workmen or requisite materials and all rights, privileges,easements, servitudes, and appurtenances whatsoever to the said premisesbelonging.■
The plaintiffs alleged that the pumps, machinery, pipes, and buildingsat B in the plan passed to them on deed P6, and the defendant allegedthat they passed to him on deed P3. Each jferty conceded to the otherthe right to take water from the well, if necessary, by installing a separatepump and an engine.
Tlie evidence of Mr. Midelmiss, an Engineer employed at Messrs.©Town, arid Company, sliows that up to the year 1939 there was a wellnear the factory from which water used to be pumped for use in thefactory, bungalow, and lines by the engine in the factory. The waterwas pumped from the well into an overhead tank in the factory, andconducted by pipes into the factory and to a cistern near the bungalowfrom which the pipes were laid to the bungalow and to the labourers’lines. In 1939, owing to the drought, work in the factory had to bestopped, at times during the day, for'.want of sufficient .water, and the■Company requested Messrs. Brown and Company to inspect the Estateand devise some means of providing the factory with sufficient, waterto work it throughout the year. Mr. Midelmiss proceeded to the Estatein July,. 1939, and, after an inspection, decided that the only way of .pro-viding the factory with a constant supply of water. was by installing appmp and an engine to pump the; ‘water from the stream two milesaway. . He, accordingly, sank a well at B in the sketch, built a shed, andinstalled a .pump and a five-horse-power diesel engine in it., He thoughtthat, it would be too expensive to have a direct pipe line from B to thefactory, and. he decided, for the sake of economy, to take the water up tofhe bungalow tanks and from there through gravitation through the-existing pipes to the factory. Mr. Midelmiss’ evidence leaves no roomfor 'doubt that the pump and the engine were installed at B in order toget water to work the factory during, the drought.. The factory Machineryand Insurance book D 1 which was in the factory when the’., defendanttook it over from the Superintendent shows that the engine installed at Bwas regarded by the Company as part of the machinery belonging to thefactory. There is a sharp. conflict of evidence between Geddes -and thedefendant as to whether the hey of the.shed' at B was with Geddes orwith the man in charge of the shed. Geddes said that he had- the key.and he gave, .it to Martin, the factory; engine driver, and requested himto pump the water to -the bungalow, as he- did before, promising to pay,him something for his trouble. Martin pumped the water for a few days,whereupon, the defendant offered to pump the water from the factorywell on payment of a nominal sum. He accepted the offer s and thedefendant supplied the bungalow with water from the factory well fromNovember, 1943, up to November, 19.45, and. charged him Es. 15 a monthat’ the commencement and. Es. 30 to Bs. 40 a month later. About fourw five months after November, .1Q43, a' dispute, arose, .between him and thedefendant about the key, but he was unable to take any, action in regardto- it for want of funds. He did not say how the key came into hispossession. The defendant, denied that the. key was at any time with•Geddes. He said that when he. took oyer the factory the Superintendentsent for the. key which was with the watcher of the shed at B and gave it dohim. The learned District Judge. has not specifically dealt with thispoint in his judgment but there are indications in the judgment that hepreferred the evidence of the defendant to that of Geddes, . He . hassaid “ The evidence of the defendant irresistibly leads one to the . con-clusion that it was always intended that this particular .source of water,the engine, the pump, &c., were considered part and parcel of the appur-tenances of the factory ”. The probabilities also seem to svipport the
defendant’s version. The following passage in the evidence of Geddesshows that he took very little interest when the Estate was handed overby the Superintendent :—'
“ The day after the deeds were signed I went to the Estate. Mr.Pern was in the Estate bungalow when I went. Defendant also wentto the Estate bungalow. Defendant was given possession of thefactory by Mr. Pern but not in my presence. I remained in thecompound of the factory but I did not go inside the factory when Mr.Pern went to deliver possession to the defendant. I was in the com-pound with other buyers. Mr. Pern and the defendant went inside thefactory. I did not look to see what the two of them did inside thefactory. If the defendant says that Mr. Pern delivered the inventorybook to him I do not deny it ”,
It seems to us that the question whether the defendant is entitled to theengine, pump, and pipes at B depends on what is meant by the words“ the machinery used for or in the working of the factories ” and “ the.appurtenances belonging or appertaining or said to belong or appurtenant-to the factory block ” in P3. It is clear from D1 that the engine wasregarded by the Company as part of the factory machinery, and from theevidence of Mr. Midelmiss that the engine, pump, and pipes at B were-used for and in the working of the factories purchased by the defendant.We are of opinion that the learned District Judge came to a correct con-clusion. when he held that the engine, pump, and pipes from one unitwhich comes within the words machinery used for or in the working ofthe factory ”.
Mr. Perera contended that P4 shows that Geddes did not intend toconvey to the defendant the engine, pump and pipes. It is no doubttrue that in P4 Geddes reserved to himself the engine, pump and pipesbut the defendant cannot be affected by it. If, in fact, P3 conveysthem to him, any secret- intention Geddes may have had in his mind•cannot prevent them from passing to him. Goddes said that the■defendant knew that he was reserving them for the use of thebungalow, but his evidence does not seem to have been accepted by thelearned Judge. It is .certainly not supported by P3, for, if he had arrangedwith the defendant to make such a reservation, there is no reason whyIt should not have been inserted in P3. It is not at all likely that thedefendant knew that Geddes was going to reserve to himself the pump•and the engine because the factory would have been, of no use to himduring the drought without the pump and the engine.
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Mr. Weerasooria argued that, in any event., the pump, engine, pipesand the shed at B must be regarded as appurtenants of the factory andhe relied on two cases Nicholas v. Chamberlain 1 and "Watts v. Nelson z. InNicholas v. Chamberlain it was held that if one erects a house.and buildsa conduit thereto in another part- of his land and conveys water by pipesto his house, and afterwards -sells the house with the appurtenantsexcepting the land, or sells the land to another reserving to himself thehouse, the conduit and pipes pass with the house because it is necessary
1 Cro.; Jac.-1212 24. L. T. 209
and quasi-appurtenant* thereto. In Watts v. Nelson the owner of two-adjoining properties conveyed to the plaintiff one of them which consistedof a house, stalls for feeding cattle, and a yard and outbuildings and heso conveyed it with “ all waters, watercourses, rights, &e., to the samehereditaments, belonging or "with the same held, used, enjoyed or reputedas appurtenant theretoThe defendant afterwards became the owner
of the other property, from which there was a small natural water courseflowing to the plaintiff’s premises, and in this stream- there was at the timed£ the conveyance to the plaintiff, a tank, which was on the other propertywhich stopped the natural flow of the water, and an artificial culvert whichconducted the water to another tanjc also in the latter property whencetwo pipes conducted it to the plaintiff’s yard and cattle sheds for thepurpose of supplying which the culvert had been expressly made. Theplaintiff sought to restrain the defendant- by an injunction fromobstructing and diverting the watercourse. Referring to the judgment inNicholas v. Chamberlain Lord Justice Mellish said “ This case has always'been cited with approval and is identical not only in principle but in itsactual facts) with the case now before us ”. It seems; to us that these twocases are on all fours with the present case. We do not think they canbe distinguished on the ground that what was sold by P3 was not the fac-tory but 13 acres of land including the factory. The evidence is very clearthat the defendant was interested in the purchase of the factory only.Perhaps he had to purchase 13 acres of land because the stores, the officeroom, the clerk’s, tea-maker's and engine driver’s quarters and the factorylabourers’ lines were spread over that area.
The judgment of the learned District Judge is, in our opinion,correct. We would, accordingly, dismiss the appeal with costs.
Swan J.—I agree.
Appeal dismissed.