WIJEYESEKERE v. VAITHIANATHAN

085-NLR-NLR-V-40-WIJEYESEKERE-v.-VAITHIANATHAN.pdf


318
1938
Wijeyesekere v. Vaithianathan.
Present : Maartensz and Moseley JJ.
WIJEYESEKERE v. V AITHIANATHAN.
367—D. C. Colombo, 316.
Servitude—Mortgage of property—Subsequent gift of property with a right ofway—Sale of mortgaged property in execution of mortgage decree—Claim by purchaser of right of way—Nature of servitude gifted.
By mortgage bond No. 397 dated July 1, 1930, P. mortgaged with J.and another a defined block of land and the buildings standing thereon.By deed of gift dated March 28, 1931, P. gifted the same premises toV. F. together with a right of way over arid along the reservation for aroad twenty feet wide, forming the eastern boundary of the premises andbelonging to P.
J. and his co-mortgagee put the bond in suit against P. and V. F. andpurchased the mortgaged property in execution of the decree in theirfavour. They transferred the premises to defendant, who claimed aright of way over the road reservation.
The plaintiff, who purchased the road reservation from P., brought thisaction for a declaration of title to the strip of land and for an orderrestraining the defendant from using it.
Held, that the right of way created by the deed of gift was granted toV. F. personally and did not become an accessory of the propertymortgaged.
Held, further, that the defendant was not entitled to exercise the rightof way unless he was a successor in title of V. F. or unless the latteraccepted the gift on behalf of the mortgagees.
Wijeyesekere v. Vaithianathan.
319
T
HIS was an action brought by the plaintiff for a declaration of titleto a strip of land called a road reservation and for an order
restraining the defendant from using the said road. The facts are statedin the head-note. The learned District Judge gave judgment for theplaintiff.
H. V. Perera, K.C. (with him N. Nadarajah and E. B. Wikramanayake),for defendant, appellant.—The strip of land in dispute was reserved as aright of way for the benefit of the property purchased by the defendant.The deed of gift in favour of Virginia Fernando created a praedial servitudeand this servitude attached to the property and passed with it as anaccessory. At a mortgage sale the land passes sis it then stands, with allimprovements if it has been enriched in any way even by a third person.Buildings erected and plantations made even by a stranger, subsequentto the mortgage, accrue to the land and pass with it. Not only thingsexpressly mentioned, but also all accessions and accretions become boundand pass with the property. Berwick's Voet XX. 1,2; XX. 1, 4. Therefore.the right of way passed with the property sold. It is a real servitude andcannot have an existence independent of the dominant tenement. Realservitudes cannot exist apart from immovable property since they areaccidents and conditions attaching to immovable property. I Nathan 445(art. 686). The right of way was not personal to Virginia. It accruedto the land and not to the owner, and it runs with the land. The dominanttenement was the person which acquired the servitude, so that it wastransferred to every person possessing that tenement. The propertydrags along with it, at every sale, everything that has become accessoryto it'even subsequent to the mortgage. When the property is transferredthe servitude cannot be excluded. A praedial servitude is an accession.It becomes a quality or characteristic of the dominant tenement, such ashealthfulness or fertility. Voet VIII. 1, 2; Buckland & McNair’s RomanLaw and Common Law 102. It cannot be dealt with apart from theproperty itself.
The purchasers at the sale in execution were the successors in title ofVirginia. The property was purchased by them with all easements,servitudes and appurtenances. What was sold was not the right, titleand interest of the mortgagor, but the property itself with everythingthat accrued to it. The right of way accrued to the land and passed withit unless it was extinguished in some way known to the law. A jointowner may acquire a servitude for the joint estate, and a stranger foranother’s estate. (Hoskyns’ Voet VIII. 4,10.) Virginia acquired the rightof way. for the mortgagees. If the servitude did not pass with theproperty, what happens to it ? It either remained with Virginia or wasextinguished. It could not remain with Virginia. because it was not apersonal right granted to her. If it was extinguished it must have beenin one of the ways by which servitudes are lost. These are mentioned iniGrotius II. 37, 2-7, but there has been no such extinction in this case.
Further, the right of way was granted to the mortgagees as the mortgagebond and the deed of conveyance included all rights, privileges, easements,servitudes and appurtenances. The learned -District Judge has notconsidered this fact. When the property was sold, all the benefits andadvantages were also caught up, and the property carried with it the right
320
Wijeyesekere v. Vaithianathan.
of way. The property originally consisted of two blocks both belongingto the same owner, and the people occupying the rear block used this pathto get to the public road. The alienation of this block with “rightsusually enjoyed ” or “ appertaining ” or perhaps the mere grant withoutgeneral words carried with it the right of way. (Bayley v. Great WesternRailway'; Hansford v. Jago’; Gale on Easements 165.) Where a land istransferred without mention of a right of way, the transferee is entitled toassert his right to the servitude, though it was not expressly conveyed tohim. (Suppiah v. Ponnambalam ’.)
F. A. Hayley, K.C. (with him E. G. P. Jayatileke, K.C., and J. L. M.Fernando), for plaintiff, respondent.—A servitude does not attach toproperty. That .is only a fiction. It is really a right residing in a person.Every servitude must belong to a person (Hunter 394), and he can exclude^it when selling the property. The right of the dominant tenement overthe servient tenement is a personal right. That is why a person cannothave a servitude over his own property, because he cannot have rightsand duties over himself. When a stranger builds on mortgaged property,the building does not pass on the sale of the property. A servitude is notan accession in the sense that it increases the value of the land. It is notin the same category as a fixture. It can be surrendered or abandonedby a person, and it is extinguished by a public sale. (Voet VIII. 6,14.) Anaccession must take place before the mortgage and must be of a physicalthing, e.g., a building or plantation. What was mortgaged and sold wasnot the property, but the mortgagor’s right, title, and interest. Theconveyance transferred the land “freed from the rights of Virginia”, sothe right of way which Virginia had disappeared. (Mortgage Ordinance,No. 21 of 1927, section 10 (2).) Nothing more than what was actuallymortgaged is sold. Otherwise, if a person mortgages an undivided halfof a land, and subsequently acquires the other half, then this half accedesto the land mortgaged, and passes with the mortgaged property when thatis sold. Mortgage is different from sale. In the case of a mortgage thereare no covenants. There is only a charge over the interests of themortgagor. Principles governing sale do not apply. The right of waywas not mortgaged, and therefore it was not sold. Assessions in the caseof mortgage of " universitas rerum ” not the same as where “ res singu-lares ” are hypothecated. (Berwick’s Voet XX. 1, 2 and XX. 1, 4.) Stavessubstitute do not become bound. (Berwick’s Voet XX. 1, 4 and XX. 4, 7.)Unless servitude is expressly imposed or houses are.sold “as they noware ” rights are not transferred. (Berwick’s Voet XX. 1, 6.) A servitude isa burden and very clear evidence is required to establish its existence.(6 Bitch. 65 at 69.) The principle in the English case cited applies todefined roads and ways of necessity. Moreover, the two blocks weremortgaged and sold as one land. The existence of a house now and theconvenience of having the right of way claimed are not material. Thestate of the land at the«time of mortgage must be considered. Althoughimprovements made by the mortgagor accede to the property and passwith it, the rights of a third person do not accrue to the benefit of themortgagees.
* (1884) 26 L. R. (Ch.) 434.* (1921) 1 Ch. 322.
—•» (1911) 4 N. L. R. 229.
MAARTENSZ SP.J.—Wijeyesekere v. Vaithianathan.
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H. V. Perera, K.C., in reply.—If the right of way was a personalservitude and was retained by Virginia, she would still have the right towalk up and down the strip of land at any time. If she has surrenderedit there must be a person to whom it was surrendered. If the servitudewas real, it must pass with the property. It exists for each successiveowner, and not to one owner or another. (Sohm’s Roman Law 342.) Apraedial servitude attaches to property rather than to the owner. (Austin’sJurisprudence Lecture 50, Bucklund’s Manual of Roman Law 153 and 154.)It must necessarily pass with the land to every person successivelyoccupying the tenement, unless it has been previously extinguished.(Salmond on jurisprudence 460; Hunter’s Roman Law 413.) The dominanttenement is a legal person. A real servitude is a benefit concurrent withthe ownership of the property. (Austin’s Elements of Law 207.) Thegeneral words in the deed must be given a liberal interpretation. Formerlyceremonials and formalities were of great importance, and words in deedswere interpreted strictly. The Roman-Dutch rules of interpretationhave now been discarded. Voet XIX. 1, 6 is not applicable. The realintention of the parties must be taken into consideration. (Norton onDeeds 285.) No reason to limit the principle laid down in the Englishdecisions to ways of necessity. The transfer “ freed from the interestsof Virginia ” means that Virginia has no more interests. It is on thesupposition that a real servitude passes with the title to property that apurchaser is entitled for the purpose of prescription to rely on the posses-sion of his predecessor in title who transfers only the property with nomention of the servitude.Cur. adv. imlt.
August 2, 1938. Maartensz S.P.J.—
The defendant in this action appeals from a decree of the District Courtof Colombo declaring the plaintiff entitled to the strip of land called roadreservation, 20 feet wide, more fully described in the schedule to thedecree, and that the defendant has no right to the said road, and restrain-ing the defendant from using the said road.
The strip in dispute forms part of the land depicted in plan P 4 whichthe plaintiff’s father, Mr. D. D. Pedris, purchased in 1908 on deeds P 2and P 3 and divided up into parcels. The houses Medway, Bowness,Siriden, Glenford, and Cestria shown in plan Y, filed with the plaint,were built by Mr. Pedris. The strip of land lies between Medway,Bowness, and Siriden on one side and Glenford and Cestria on the other.
By deed No. 1969 (D 3) Mr. D. D. Pedris gifted Medway to the plaintiffon July 31, 1929. It is described as lot A in plan No. 3,235, bounded onthe east by lot C in the plan being premises called and known as Glenfordand a passage or reservation for a road 20 feet wide. The grant includedamong the easements, servitudes and appurtenances “ the full and freeright and liberty of way and passage in over and along the reservationfor a road 20 feet wide leading from the high road called Edwin’s Driveto the said premises”.
On the same date by deed No. 1968 (P 5) Mr. Pedris gifted Glenford tothe plaintiff bounded on the west by a passage or reservation for road20 feet wide along lost B and A, lot A being Medway.
40/25
322MAARTENSZ S.P.J.—Wijeyesekere v. Vaithianathan.
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There was a right of way granted over the reservation in the same termsas in D 3.
By deed No. 372 (P 6) dated July 1, 1930, Pedris mortgaged Siriden asdescribed in plan No. 3,686, bounded on the east by the passage inquestion.
It appears from the evidence of Mr. de Saram that Pedris first offeredto mortgage Siriden (lot Y in plan D 2) exclusive of the portion X to theeast of Bowness. There was a hedge between X and Y. Then X wasoffered as additional security and Mr. de Saram went to it by the strip indispute. There was no building on it at the time, but Mr. de Saram saysit was offered as a building site. Then a plan amalgamating Siriden andX was brought to him.
After the bond was executed Pedris by deed D 12 dated March 28, 1931,gifted Siriden as depicted in plan 3,686 to his grand-daughter VirginiaFernando. The grant of the estimates included the right of way in, over,and along the reservation for a road 20 feet wide forming the easternboundary.
The bond was sued in case No. 51,511 of the District Court of Colombo.The defendants were Pedris and Virginia Fernando. Whether she was anecessary party or not does not appear from the proceedings.
The decree has not been read in evidence. In default of payment ofthe decree the premises mortgaged were sold by an auctioneer on theorder of the Court and purchased by the mortgagees Messrs. Joliffe &de Saram, and the Secretary of the Court executed the conveyanceNo. 2,282 (P 8) dated September 19,1933, in their-favour.
The deed recites that D. D. Pedris “ seized and possessed ” of thepremises described in the schedule mortgaged the property by bondNo. 372 and gifted it by deed No. 212 to Virginia Fernando subject to themortgage.
That bond No. 372 was put in suit in action No. 51,511 of the DistrictCourt of Colombo, against the first defendant for the recovery of theamounts due to the plaintiffs and also against the second defendant “ fora declaration that the said property and premises be sold -for the recoveryof the said sum, interests, and costs freed from her rights and interests inthe event of the first defendant making defaults in the payment of thesame”.
That the District Court of Colombo on March 13, 1933, entered amortgage decree whereby it was ordered and decreed that the firstdefendant do pay to the plaintiffs the sum of Rs. .
That by the said decree the said property and premises were declaredspecially bound and executable for the payment of the said sum of
Rson the footing of the said bond No. 372 ….
“ freed from the rights and interests of the second defendant ” ;
That the decree further ordered that in default of payment of the saidsum …. that the said property b^ sold freed from the rights andinterests of the second defendant and the proceeds applied in payment ofthe said sum, interests and costs ;
That the first defendant having made default in the payment of theamount of the said decree, the property was put up for sale and purchasedby the plaintiff.
MAARTENSZ S.P.J.—Wijeyesekere v. Vaithianathan.
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The operative clause reads as follows (I quote the relevant portion) : —
“ Now Know Ye and these presents witnesses that the said ….Secretary of the District Court of Colombo in pursuance of the saidorders and directions made in the said action No. 51,511 of the saidDistrict Court and by virtue of the authority granted as aforesaid andfor and in consideration of the said sum of Rupees …. interms of the order of Court as aforesaid and in exercise of every right,power and authority vested in him or in anywise enabling him in thisbehalf doth hereby grant, convey, assign, transfer, set over and assureunto the plaintiffs …. the said property and premises in theschedule hereto fully described freed from the rights and interests ofthe second defendant together with all buildings, trees and plantationsthereon and all rights, privileges, easements, servitudes and appurte-nances whatsoever to the said property and premises belonging or inany way appertaining or used or enjoyed therewith or reputed or-known as part and parcel thereof and all the estate, right, title, interest,property, claim and demand whatsoever and howsoever of the firstdefendant in, to, out of, or upon the same and together with all deeds,documents and other writings therewith held or relating thereto.”
The grantees by deed No. 473 (P 9), dated August 22, 1934, sold theproperty to the defendant. The property is depicted in plan No. 3,686,P 7, made by Mr. M. G. de Silva, dated May 21, 1929. The plaintiffdisputed the defendant’s right to use the strip in question as a road andthe plaintiff purchased it from Mr. D. D. Pedris upon deed No. 856,dated October 2, 1934. The plaintiff apparently forestalled the defendantwho had approached Mr. Pedris with a view to purchasing from him theright to use the strip as a road or way to the land he purchased.
The defendant insisted on his right of way over and along the strip inquestion, and the plaintiff brought this action for a declaration that shewas entitled to the strip, that the defendants has no right to use the saidroad, and for an order restraining the defendant from using it.
The defendant pleaded that the lane was a public lane, or, if it was nota public lane, that it was constructed for the benefit of premises Nos. 15and 17 (the property he purchased from Joliffe & de Saram), that itwas an appurtenance to the premises, and that he had acquired byprescription a right of way over the strip of land.
The action was tried on a number of issues arising from these pleadings.In appeal, however, the right of the appellant to a right of way over thestrip was stressed on two grounds.
The first ground on which the right of way was claimed was based uponthe deed of gift or D 12 executed by D. D. Pedris in favour of his daughterVirginia Fernando. It was contended that the deed of gift created apraedial servitude of way over the strip of land owned by the donor whichattached to the dominant tenement gifted to 'Virginia Fernando and thatthe defendant was. entitled to the right of way so created, as an accessoryof the property mortgaged or as a right which passed to his vendours underthe conveyance P 8 executed to give effect to the sale in execution of themortgage decree and from them to him by deed No. 473 (P 9), or becausethe deed of gift was accepted on behalf of the mortgagees by VirginiaFernando.
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MAARTENSZ S.P.J.—Wijeyesekere v. Vaithianafhan.
In support of the first branch of the contention it was strenuouslyargued that the servitude created by the deed was something real whichattached itself to the dominant tenement (Siriden), which I shall hereafterrefer to as Siriden, and was exercisable by any owner or possessor ofSiriden. It became, it was submitted, a quality of the dominant tene-ment. In support of this submission we were referred to (a) Voet,bk. VIII. tit. 1, art. 2 which reads thus : —
“ Servitudes are real, when indeed one thing is subservient to anotherand so loses some of its own rights whilst it increases those of another.By our law such servitudes have also been styled praedial servitudes;for the reason that the constitution and the exercis of such servitudesit is necessary that there should be a dominant tenement in the positionof creditor and a servient tenement in the position of the debtor ofthese servitudes ; and they have no existence apart from immovableproperty. For what else, asks Celsus, are the rights attaching toimmovable property, but the qualities which they possess, as for instance,excellence, healthfulness, extent, and rights advantageous to him whopossesses them, but injurious to him who owes them ; so that thepossessor of a farm burdened with a servitude, cannot, sell the sameunburdened
Particular reliance was placed on the dictum of Celsus, which I haveunderlined.
The passage in Roman Law and Common Law p. 102, by Buckland &McNair, which reads:—“In fact praedial servitudes seem to have beenregarded rather as accidental characteristics or qualities of the land, likerelative fertility ”.
■■■■_ I'find considerable difficulty in giving to either of these passages the.wide meaning defendant’s Counsel sought to attach to them, for if aservitude became in all respects a quality of the dominant tenement, theowner of the dominant tenement could not extinguish it by surrendering'it. But that is what the owner of the dominant tenement could do bothunder the Roman law and Roman-Dutch law. The passages must, inmy judgment, be limited to the servitude being a quality of the dominanttenement, while it is in existence.
It was also submitted that the servitude was analogous to the rightwhich the owner of a land acquired in a building constructed on his landor a plantation made on his land by another person, or in land added tohis property by alluvium. This is, I think, a false analogy, for a buildingor plantation is a concrete fact which the owner of the soil cannot takeaway from the soil except by breaking it down or pulling it up. He cannotfor example, surrender the building or plantation without the soil to thebuilder or planter. He can only give up the materials. – A servitude, onthe other hand, is an abstract right which can be surrendered, apart fromthe soil of the dominant tenement.
It was also argued that as regards real servitudes the dominant tenementis in law a person. In support of tins argument we were referred toSalmond on Jurisprudence, p. 460, where he states that a servitudeappurtenant (real) runs with the dominant and servient tenements intothe hands of successive' owners and occupiers ; Austin on Jurisprudence,
MAARTENSZ S.P.J.—Wijeyesekere v. Vaithianathc.n.
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Lecture 50, where he says with reference.to real servitudes that theserights of servitudes are said to-reside in given things and not in the personholding them ; hence we have such teftns as “ servitude rerum Markby’sElements of Law, p. 207, where he says in the case of a praedial servitude“ besides the res aliena over which the right is exercised, there is anotherres to which the right is attached; and the enjoyment of the servitudealways accompanied the ownership of the second thing though it is ofcourse not merged in it.
These passages are referable to the Roman law regarding servitudes.The passage in Sohm’s Institutes of Roman Law, p. 342, that in the caseof real servitudes they do not exist only for this or that owner but forevery owner of the praedium dominans and that “ it is in this sense thatone piece of land is said to serve another” ; and-Buckland’s Manual ofRoman Law, p. 153, that the essential difference, expressed in the name,is that praedial servitudes are regarded as attaching to the propertyitself rather than to the owner of it, were also relied on.
Reference was also made in this connection to a passage in Hunter’sRoman Law which reads, “ A praedial servitude is attached to the landin this sense, that it cannot be transferred by the owner of the dominantland to the owner of any other land. Until extinguished in one of theways hereafter enumerated, a servitude passes with the land to everypossessor ”.
Hunter, however, in his commentary on Personal Servitudes, page394, at page.395, says with reference to the right of usufruct and the right
of way : —
“ The distinction between these two classes of servitudes is describedby the Roman jurists from a different and less satisfactory point ofview. Marcian says that servitudes belong either to persons as usufructor to things, as urban and rural servitudes (servitutes personarum,servitutes rerum or praediorum). But for the solecism of attributingservitudes to things (for every servitude must belong to a person) thelanguage might be thus defended.”
The rest of the passage is not material.
I think the words “ for every servitude must belong to a person ”concisely and cogently dispose of the argument that a dominant tenementis a person which can acquire a real servitude so as to become aquality of it transferable to and exercisable by every person in possessionof the land.
A right of way may, I take it, he granted to A, personally. For instance,the owner of a land may grant the lessee or owner of an adjoining land. a right of way over his for his personal use ; or it may be a grant of a rightof way to the owner of a land and his heirs and successors creating apraedial servitude exercisable by the grantee in respect of the land ofwhich he is owner.
This right the grantee can surrender to the grantor or he can exclude itwhen selling the property. The result will be the same, for the purchaserof the property has not acquired the right and the grantee cannot exerciseit because he has divested himself of the land and the right to possess it.He may possibly be entitled to exercise it if he remained in possessionnotwithstanding the sale.
326MAARTENSZ SJ*J.—Wijeyesekere v. Vaithianathan.
The burden on the servient tenement will pass to the grantor's successorsin title. He cannot, of course, any more than a mortgagee can, by anyprovision in the grant relieve the gfantee of the burden on the land.
It was suggested that if the right was not an interest in the land, aperson who purchased the land cohld not complete the period of adversepossession commenced by his predecessor in title for acquiring a servitudeby a prescriptive title, if the servitude was not expressly transferred. Inmost cases the terms of a transfer would include the transfer of such aright, I do not think it necessary to discuss or decide what would be theposition if the right of servitude was not transferred or excluded, as thequestion does not arise.
In my opinion, the praedial servitude of way created by the deed ofgift P 12 was granted to Virginia Fernando and belonged to her and notto Siriden. It therefore did not become an accessory of the propertymortgaged. The defendant is therefore not entitled to exercise the rightunless he was her successor in title or unless she accepted the gift onbehalf of the mortgagees.
This brings me to the second branch of the contention. I shall firstdeal with the argument that the right of way was acquired by VirginiaFernando on behalf of the mortgagees. This argument was based on thepassage in Voet, bk. VIII. tit. 4, art. 10, which reads : —
“ But since by the law of the present day a man can make a valid
stipulation not for himself merely but also for another, it follows that
one joint owner can acquire a servitude for the joint estate, and a
stranger for another’s estate”.
This is, however, a very summary statement of the law referred to.
Under the Roman-Dutch law a stipulation in a contract in favour of athird party is valid, but it is only actionable by the third party if he hasaccepted it. (Jinadasa v. Silva1).
In this case I cannot by any process of reasoning find any stipulation inthe deed of gift in favour of the mortgagees, nor if there was one that themortgagees accepted it. The argument therefore fails.
The contention that the purchasers at the execution sale, namely,Messrs. Joliffe & de Saram, were the successors in title of VirginiaFernando, is in my opinion, absolutely inconsistent with the terms of thedecree in D. C. Colombo, No. 51,511 as recited in the Secretary’s convey-ance and the terms of the deed itself.
I have already set out what I considered the portions of the deedmaterial to the questions argued in appeal. I need only point out thatthe passage in the operative clause conveying the property to thepurchasers expressly conveys it to them freed from the rights and interestsof Virginia Fernando. I find it impossible to accede to the argument thatthe words “freed from” mean inclusive of the rights and interests ofVirginia Fernando.
The deed embodies the effect given to a conveyance executed inpursuance of a sale in execution of a mortgage decree by section 10 of theMortgage Ordinance, No. 21 of 1927. i
i (m2) 34 N. L. R. 344.
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Sub-section (2) enacts that subject to rights having priority “the con-veyance shall, unless otherwise expressed therein, operate to convey theproperty sold for such estate and interest therein as is the subject of themortgage, freed from the interests, mortgages, and rights of inter aliaevery part to the action.
In my judgment the effect of the sub-section is to give the transferee atitle to the property mortgaged suprior to that of every party to theaction and not inclusive of it. In short, that the mortgage decree andsubsequent transfer rendered the title of Virginia Fernando null and voidas against the title of the transferee. If not, defendant’s title is defectivefor clearly Virginia Fernando’s title under the deed of gift was not trans-ferred by deed P 8.
It was suggested in the course of the arguments on this branch of thecontention that what was sold in execution was the land mortgaged andnot the right, title and interest of the mortgagor. I confess' I could notfollow the distinction Counsel sought to draw between the sale of a landand the sale of the owner’s interests. The mere delivery of the land tothe vendee will not give him title unless his vendor had title. The mainpurpose of the argument was, however, to establish that the sale carriedwith it the right of way. As I have held that the right of way did notform part of the land, I need not discuss the argument further.
I am accordingly unable to uphold the contention that the defendantis entitled to exercise the right of way as the successor in title of VirginiaFernando or as the successor in title of the mortgagees because VirginiaFernando acquired the right of way on their behalf.
The second ground relied on in support of the defendant’s claim to aright of way over the strip in question is that there was an express orimplied grant of the right of way to Messrs- Joliffe & de Saram underthe mortgag bond (P 6) and the deed of sale (P 8) as the property wasmortgaged and conveyed “ togther with …. all rights,privilges, easements, servitudes and appurtenances whatsoever to thesaid property and premises belonging or in anywise appertaining or usedor enjoyed therefwith or reputed or known as part and parcel thereof ”.
It was argued that the general words must be construed according tothe meaning given to them in the English decisions in analogous cases.It was also contended that Voefs Dictum in bk. XIX. tit. 1, art. 6,which reads: —
“If the owner of two houses has sold them.separately to differentpersons, or has sold one and kept the other for himself, and one receivedthe droppings from the eaves of the other, or a beam, or a projectionfrom the roof, or the like, to which there is no liability in the absenceof a servitude, the better opinion is that such premises have not to betransferred to purchasers with rights of this kind—with the advantagesto the one and disadvantages to the other—unless either a servitudehas been expressly imposed, or the houses are sold with the clause‘ as they now are ’ ”. (Berwick’s Trans., p. 168.)is not applicable to an instrument' in which phraseology of an entiretydifferent character had been used, and it was also argued that the generalwords relied on had the same effect as the words “ as they now are ”.
328MAARTENSZ SJ*J.—Wijeyesekere v. Vaithianathan.
The principle laid down in the English cases was summarized byFry L.J. in Bayley v. Great Western Reditu ay Co.1; thus: —
“ If one person owns both Whiteacre and Blackacre, and if there bea made and divisible road over Whiteacre, and that has been used forthe purpose of Blackacre in such a way that if two tenements belongedto several owners there would have been an easement in favour ofBlackacre over Whiteacre, and the owner aliened Blackacre to apurchaser, retaining Whiteacre, then the grant of Blackacre either“ with all rights usually enjoyed with it ” or “ with all rights appertain-ing to Blackacre,” or probably the mere grant of Blackacre itselfwithout general words, carries a right of way over Blackacre.”
The principle applicable to made and defined roads was extended tocases where there was no formed or defined road if the grant of way wasnecessary for the reasonable enjoyment of the quasi dominant tenement—Rudd v. Bowles *; Hansford v. Jagos.
The rules in these cases result, it is observed, Tn Gale on Easements,p. 165, independently of section 5 of the Conveyancing Act, 1881, andevidence of actual enjoyment.
Now, the property mortgaged and sold to the mortgagees is the parcelof land depicted in plan No. 3,686 (P 7) made by Mr. M. G. de Silva,According to this plan the property is a defined portion, marked B 2,with indefinite boundaries of several lots of land. In the bond the landis described as bearing assessment No. 1084{7 and in the conveyance tothe mortgagees as No. 1084[7, presently bearing assessment No. 9,When it was sold to the defendant it was said to bear two assessmentnumbers, namely, No. 9, 31st lane, and No. 15, 30th lane.
It is obvious that access to the parcel of land mortgaged was fromEdwards Drive and Charles Place. No other way was necessary for the“ reasonable and convenient ” enjoyment of what is termed in the Englishcase “ the quasi-dominant tenement ” when it was mortgaged and sold tothe mortgagees.
To establish the claim set up by the defendant recourse is had to theevidence of Mr. de Saram, which I have already referred to, that whatwas first offered as security for the loan was lot Y in plan D 2, and thatwhen he considered lot Y insufficient he was shown X in plan D 2, whichwas separated from it by a hedge, and to his evidence that he went to Xby the lane numbered 30th lane. —
The case for the defendant is that what was in fact mortgaged and soldwere two parcels of land X and Y in plan D 2, both of which were severedfrom the rest of Pedris’s land, namely, 30th lane. As regards parcel Ythq:e was and is access to it from Charles Place and Edwards Drive. Asregards lot X the access to it from Edwards Drive was and is by the 30thlane, and that therefore the defendant is entitled to a right Of way to Xover 30th lane. In short, that lot X is the quasi-dominant tenement and30th lane the quasi-servient tenement.
This case, in my judgment, involves a considerable expansion of therule laid down in Bayley v. Great Western Railway Co. and Hansford v.
Jago (ubi supra).
1 (1834) 26 L. R. 434, at p. 457.*
* (£921) Law Reports 322.
(1912) 2 Chancery 60.
MAARTENSZ S.P.J.—Wijeyesekere v. Vaithianathan.329
In those cases considerable stress was laid on the fact that the easementsclaimed, if not rights of necessity, were necessary for the reasonable andconvenient use of the buildings standing on the quasi-dominant tenementwhen it was severed from the quasi-servient tenement. There is in thiscase some evidence that there was a cattle shed on lot X occupied by adairyman, who used 30th lane for taking his cattle to and from the shed.The shed has disappeared, and it was not mortgaged or conveyed to themortgagees after their purchase at* the sale in execution, nor does thedefendant claim the right of way as necessary for the reasonable^ andconvenient use of the shed. In Bay ley v. Great Western Railway Co., thestable in respect of which the right of way was claimed by the railwaywas conveyed to the Company and it was held that the Company was notprecluded from claiming the right of way so long as the premises wereused as a stable. This case is therefore not an authority which supportsthe defendant’s claim to the right of way in question, even if the evidencethat it was used by the dairyman is true.
It is clear from the plans hied in the case that Mr. Pedris had the landhe purchased blocked out and surveyed by Mr. M. G. de Silva on variousdates. Glenford and Medway were depicted in plans 3,237 and 3,235,made on May 11, 1926, and 30th lane provided as a means of access toGlenford from Edwards Drive, and incidentally to Medway. Siridencomprising lots S and Y was surveyed and plan No. 3686 (P 7) made onMay 21, 1929, more than a year before the mortgage was executed andbefore the loan was applied for by Mr. Pedris, and lots X and Y weremortgaged and sold as one parcel of land depicted in plan No. 3686.
Neither of the mortgagees nor the purchaser at the sale in execution hadany reason to think that two parcels of land were mortgaged and sold.The fact that Mr. de Saram saw a hedge between one portion of the parceland another portion of it does not convert the parcel into two. Lots Xand Y had no existence as separate parcels until this case and the defend-ant is, in my opinion, not entitled to claim a right of way to the publicroad on the ground that X was a separate parcel of land.
This is not a case where an owner of two tenements had sold one, northe case where an owner of a parcel of land has sold a part of it with theresult that access from the parcel to the highway or a way necessary forits reasonable and convenient use has been cut off.
On the contrary, the owner has sold a defined parcel of land which hasall reasonable and necessary access to the road and the buyer is notentitled to claim a right of way to some particular point of it. Even iflots X and Y consisted of two parcels, it is quite open to an owner toamalgamate them and sell them as one parcel by reference to a plan madefor the purpose or by description, and a buyer who purchases the lots asone parcel is not entitled to say, “ I must have another way of access to aportion of it, which by reason of the configuration of the land I can use asa separate portion ”.
Again, where the immediate purchasers have not claimed or made useof a right of way in dispute, it is, in my opinion, doubtful whether asubsequent purchaser could claim it as on an implied grant. But it isnot necessary to decide that point.
330
MAARTENSZ J.—Niblett v. Cooray.
I am of opinion that the defendant cannot by reason of the fact that hepurchased Siriden as one parcel of land claim from Mr. Pedris or the. plaintiff a right of way to lot X. It is therefore not necessary to discussthe evidence that it was used by a dairyman in going to and from theparcel now marked X nor to decide whether that evidence is true or false.
In the result the second ground upon which the right of way wasclaimed fails, and I dismiss the appeal with costs.
Moseley J.—I agree.
Appeal dismissed.
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