021-NLR-NLR-V-18-WADURALA-v.-THE-SUNDERLAND-RUBBER-CO..pdf
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Present: Pereira J. and De Sampayo A.J.
WADURALA v. THE SUNDERLAND RUBBER CO.
393—D. C. Batnapura, 2,24:0.
Prescription—Silting up of field—Action for damages by a co-owner—Cause of action arises on date of silting, and not when plaintiff'sturn to cultivate arises.
In a case for the recovery of damages for a tort committed bythe defendant, the period of prescription commences from theactual physical interference by the defendant with the propertyof the plaintiff, and nob from the date of the actual accrual ofdamage to the plaintiff. And so, where' by reason of the defendant’swrongful act a field of which the plaintiff was entitled to a sharesilted up and became uncultivable, the term of prescription com-menced then, and not when the plaintiff's turn to cultivate, thefield as a part owner arrived.
A. St. V. Jayewardene, for the plaintiff, appellant.—The fieldsilted was possessed in tatu mam.' The plaintiff’s turn to cultivatethe field fell within the prescriptive period. The act of thedefendants was not in itself wrongful, so that the damage is thecause of action. Plaintiff only sustained damage when he could notcultivate the field when his turn came round, so that the plaintiff’sclaim is not prescribed. “ Where damage is part of the causeof action, and no act is committed which is of itself wrongful,the statute runs from the date of the damage, and not of the actwhich caused the damage.” (Hahbury’s Laws of England♦ vol.XIX., 8. 81.) Further, the cause of action was a continuing one,and the learned District Judge finds that the field got silted bydegrees; and that although a part of it had got silted some timeago, another has got silted recently. " Where there has been acontinuance of the damage, a fresh cause of action arises from timeto time as often as damage is caused ” (ibid). The plaintiff’s fieldhas been rendered useless owing to the silting caused by the act ofthe defendants.
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Bawa, K.C., and Drieberg, for defendant, respondent, contendedthat the District Judge was right in holding that the plaintiff'sclaim was prescribed. The law as laid down in Halsbury, and citedby appellant's counsel, has. no application to the facts of this case.
Car. adv. vult.
December 7, 1914. Pereiba J.—
From the District Judge’s personal observations noted by himin his judgment it is clear that the silting up of the plaintiff's fieldwas not of recent date. He thinks that the field must have firstsilted up and become useless for cultivation in 19Q8 or 1909.Mr. Byrde’s evidence shows that the field has not been cultivatedsince 1907. The plaintiff himself does not say when the field firstbecame so silted as to be unoultivable. The other evidence in thecase does not, in my opinion, negative the conclusion arrived at bythe District Judge. There is, therefore, no reason to doubt thatthe plaintiff’s field became uncultivable five or six years ago. Butit has been argued by the appellant's counsel that the plaintiff’scause of action accrued when his turn to cultivate came round andhe was not able to cultivate. I do not think that that is a correctview to take. The authorities cited do not support that' view atall. The passage from Hahbury*s Laws of England, voL XIX. t p. 52,shows that when damage is part of the cause of action, and no actis committed which is of itself wrongful, the statute of limitationsruns from the date of the damage, and not of the act which causesthe damage. The principle is illustrated by the case of Backhouse
Bonomi. 1 There a lessee of minerals worked them and left in-sufficient support for the surface, which belonged .to another person,and damage in consequence occurred to the surface more thansix years after the working of the minerals, and it was held that .thestatute ran from the occurrence of the damage, and not from theworking of the mine or from the leaving of insufficient support. Theratio decidendi here was that nothing actually happened to thesurface, and, indeed, there was no interference with it until sixyears after the working of the minerals. A similar observation wouldapply to the case of Nelson v. The Municipal Council, Colombo.* Inthe present case, however, actual interference with the plaintiff's landtook place when it first silted up. It was then that the field becameuncultivable, and the owner or owners might then have recoveredthe damage that accrued from the depreciation of the field byreason of that fact. I agree with the District Judge that theplaintiff’s claim is prescribed, and I would dismiss the appealwith costs.
De Sampayo A.J.—I agree.
1914.
Wadurafa v.The
SunderlandRubber Co.
i (1801) 9 H. L. Cases 503.
Appeal dismissed.3 (1909) 13 N. L. R. 43.