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Present: Jayewardene A.J.WANIGATUNGA v. SINNO APPU et al.
68—P. C. GaOe, 23,952.
Public stream—Theft of coral from the bed—Crown property.
The bed of a public stream belongs to the Crown. A personwho removes coral from under the bed of a public stream is guiltyof theft.
PPEAL from a conviction by the Police Magistrate of Galle.
The accused were convicted of the theft of corals of the valueof Rs. 75, the property of the Crown. The case for the prosecutionwas that the accused had dug the coral stones from under the bed ofa stream called Mawakada-ela, which was a Crown ela. The learnedPolice Magistrate found that the ela was Crown property maintainedby the Village Committee, and that the accused had removed coralstones from under the bed of the stream.
The accused appealed.
H. V. Perera (with him R. C. Fonseka), for appellant.
Mervyn Fonseka, C.C., for respondent.
April 9,1925. Jayewardene A.J.—
In this case the first four accused have been convicted of the theftof coral stones of the value of Rs. 75, the property of the Crown.The fifth and sixth have been convicted of the abetment of theoffence.
The case for the prosecution was that the accused had dug outcoral stones from under the bed of a stream called the Mawakada-ela,-and had appropriated them. The accused in their defence allegedthat the coral stones were taken out not from under the bed of thestream, but from pits dug on the banks of the stream. They alsodenied that the stream was a “ Crown ela.” The learned Magistratefound that the accused had removed coral stones from under thebed of the river, and that there was proof that the ela was Crownproperty and was being maintained by the Village Committee.He therefore convicted the accused. The learned Magistrate findsthat there is a stratum of coral two or three feet below the surfaceof the ela bed, and that the accused had reached the coral by meansof a tunnel running into the strata from a pit dug on the bank. Inview of this finding of the Magistrate the question arises as to
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whether the coral stones are the property of the Crown. According toour law which is the Roman-Dutch law, streams are either public orprivate. In the present case when the witnesses for the prosecutionspeak of the ela in question as being a “ Crown ela,” I think, whatthey mean is that it is a " public stream.*’ Therefore, the questionarises to whom does the soil under the surface of the bed of a publicstream belong ? To answer this question it has first to bedetermined to whom under our law the bed of a public streambelongs. Public streams include all perennial streams whethernavigable or not, which are capable of being applied to the commonuse of riparian proprietors (Voet 1, 8, 8). Other streams areconsidered private.
According to the Roman-Dutch law it would appear that bedsof public streams belong to the Crown (Grotius 2, 1, 25 ; 2, 9, 9 andVan Leuwen 2,1,12),
The Roman law was, however, different, and beds of rivers underthe latter belonged to the adjacent landowners usque ad mediumJUium or fllium fluminis. Digest XLI.t 1, 7, 3, 4, 5. “ The bed ofthe river, so long as the river flowed over it was public ; or ratherthe use of it was public, while the soil itself was the property of theprivate individuals to whom the soil of the banks belonged, andtherefore when the bed was dried, when it ceased to be subject topublic use, the private owners resumed the rights of ownership overit.” Saunders’ Justinian, 5th ed,, p. 99, Thus, if persons who do notown land bordering a public stream build anything in the stream—that is in its bed—the owner of the land on the banks of the streambecomes entitled to it according to the rule quidquid inaedificatursolo cedit, and any portion of a river bed which is no longercovered by water belongs to the owner of the adjacent land : Voet1, 8, 9, but by the Roman-Dutch law the building would belongto the Crown and not to the owners of the banks.
Ceterum, quia moribus nostris, et aliarum gentium maris littora, etflumina Regalibus seu Domaniis Principum adnumerantur, non ita,si navigationem et ejus sequelas ezcipias, communis omnibus usus est,neque piscari retibus in fiumine quique licet, multoque minus, extraripse munitionem, aedificare in fundo fluminis, aut in maris littare,aut aquam ducere ex fiumine, aut extruere molendina, nisi nominatimid a Principe, vel eo, cui demandata dominiorum cura, concessumfuerit; sicut ilia venix impetratio, quae ex jure Romano prudentiae erat,nunc absolutae necessitatis sit (Voet I, 8, 9).
According to Voet even the dried up bed of a river belongs tothe Crown (Moribus nostris magis est ut alveus fluminis desertus fiscoceded (41, 1,18) ; also Grotius 2, 9, 9, but see Grotius 2, 9,15, Onthese authorities I am compelled to hold that the bed of a riverunder our law belongs to the Crown and not to the adjacent lands.Perhaps there is a distinction in these cases between navigable orlarge and non-navigable or small rivers. This point has not been
Waniga-tunga v.Sinno Appu
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Waniga-tunga v.Sinno Appu
fully argued before me, and so far as I can find out for myself, Voetdoes not draw suoh a distinction; although the passages froinGrotius and Van Leeuwen might indicate the existence of one.For the purpose of this case I hold that the bed of a public streamor river is the property of the Crown. Therefore, the bed of theMawakada-ela is Crown property. If the bed belongs to the Crown,land immediately below it must also belong to the Crown. Cujuaest solum ejus eat usque ad coelum et ad inferos. The coral removedfrom under the bed of the ela is therefore the property of the Crown.
The convictions are therefore right, and must be affirmed.
The appeals are dismissed.