065-NLR-NLR-V-37-DIAS-v.FERNANDO.pdf
304
KOCH J.—Dias v. Fernando.
1935Present: Koch J. and Soertsz A.J.
DIAS v. FERNANDO.
175—D. C. Kalutara, 16,938.
Servitude—Right of cartway—Deviation of route by agreement—No notarialinstrument—Validity.
Where a person acquired a right of way over another’s land and adeviation of the route was effected by a mutual agreement, which wasnot notarially attested,—
Held, that the servitude attached to the new route.
PPEAL from a judgment of the District Judge of Kalutara.
H. V. Perera (with him Ranawake and Kwrukulasooriya), for defendant,appellant.
M.T. de S. Amarasekera (with him N. E. Weerasooria), for plaintiff,respondent.
September 3.0, 1935. Koch J.—.
The appeal is by the defendant from a judgment of the District Judge,which declared the plaintiff entitled to a right of cartway from her landover the defendant’s land to a main road.
KOCH J.—Dias v. Fernando.
305
It is clear, and the learned District Judge has found, that a cartwaywas used by the plaintiff over the defendant’s land for a considerablenumber of years, leading from the plaintiff’s land to a point whichpresently is occupied by “ steps ” abutting the main road. About sevenor eight years prior to 1934 when the trial took place, the crest of ahill in the cartroad at this spot was shaved down by the road author-ities, thus lowering the level of the main road, and in consequence byagreement the path was deviated to a point somewhat to the east of the“ steps ” marked X on the plan filed in the case. The right of waynow claimed is the old cartway with the difference caused by thisdeviation.
It is argued firstly that as the deviation took place only four or fiveyears before the institution of these proceedings, viz., June, 1931, andwas the result of only an oral agreement, the plaintiff is not entitled to theuse of the new cartway as sufficient time for prescription has not elapsed.The point is pressed on the ground that a right of way is immovable in itsnature and has been so recognized by law and cannot be validly acquiredexcept by a notarial instrument or prescription.
I think it can be conceded that in the absence of a grant of a servitudeof a right of way in general or specific terms over another’s land, the rightcan only be acquired by prescription by user over a definite track. Inthis case such a right of way has clearly been acquired along a definedpath and was in force up to about seven or eight years ago, this pathbeing the old track up to the “ steps ”.
Has the plaintiff’s right to this servitude been lost by reason of thedeviation ? This will depend on what precisely is the plaintiff’s right toa servitude of this nature, and whether there has been an abandonmentof that right at the time of the deviation.
I think I would be correct in saying that if such a right is immovablein its nature and definitely confined to and incorporated in a particulartrack that had been used up to that date, the right to use a new paththat came into being by a process of deviation can only be legally acquiredby notarial instrument of ten years’s prescription.
On the other hand, if the servitude is essentially an incorporeal rightover a servient tenement and the particular route affects only the mannerof its exercise and this incorporeal right is not immovable in its nature, adeviation in the particular route by an arrangement between the partiesdoes not affect such incorporeal right, which will continue to exist andcan be exercised over the substituted track without the necessity of anotarial instrument.
The opinion of Sir Thomas de Sampayo in Costa v. Livera1 is in favourof the latter view. He has seen no reason to alter that opinion in hisobservations in the case of Kandaiah v. Seenitamby ’.
» 16 N. L. R. 26.
* 17 N. L. R. 29.
306
SOERTSZ A.J.—Dias v. Fernando.
If the views expressed by this Court in Karunaratne v. Gabriel Appu-hamy *, Fernando v. Fernando % Madanayake v. Thimotheus *, Andris v.Manuel4 and Morgappa v. Casie Chetty’ are carefully examined, it willbe found that the correctness of de Sampayo J.’s opinion has never beenquestioned. His view is that the incorporeal right to use remainedalthough the path along which it was used was changed. “ What isprescribed by long user ”, he says, “ is not the ground over which theway lies but the incorporeal right of the servitude ”.
It may transpire that even this incorporeal right may be determinedby abandonment. This will depend on the evidence and the circum-stances of each particular case.
In this case the evidence which has been accepted by the District Judgeshows that the defendant himself joined hands with the plaintiff in con-structing the deviation when it became imminent that the old cartwaywould be impossible to use owing to the lowering of the main road. Therewas no intention to abandon the incorporeal right on the part of theplaintiff nor was there an intention on the part of the defendant to acceptsuch a situation. I therefore hold that the District Judge was right, inconserving to the plaintiff her right to use the new cartway.
On the second point I also feel that the District Judge is right. If thedefence was that the terminal X in the new path was destroyed by thedecree in a partition case in respect of a land, a strip of which interposeditself between the defendant’s land and the road at this point, the decreein that case should have been duly produced and the position made clearthat there was no conservation of the servitude over the strip. Theproduction of a plan is insufficient.
I think the appeal should be dismissed with costs.
Soertsz A.J.—
I am not free from doubt in this case. It is clear law that a servitudeof right of way can be acquired by “ prescription ” only over a definitetrack. It is true that “ what is prescribed for by long user is not theground over which the way lies, but the incorporeal right of servitude ”,but that incorporeal right is limited to a definite track. The owner of thedominant tenement cannot exercise that right over any other part ofthe land at his choice. He can acquire a right over another track onlyby the laborious course of “ prescribing ” for it, or by agreement. Theagreement, however, to be effective must be given expression to in amanner provided for by law. Our law requires that agreement affectinglands should be attested notarially. In this case there is no notarialagreement.
The way I feel about it is that the incorporeal right and the parti-cular track are inseparable. The incorporeal right once acquired has noexistence independent of the track. In other words, the right does
1 15 N. L. R. 257.» 31 N. L. R. 126.
s 17 N. L. R. 31.
s 3 C. L. R. 82.
* 2 S. C. D. 69.
SOERTSZ A.J.—de Silva v. Jacob.
307
not exist in the abstract. When a new track is substituted for the•old one, it seems incomplete to say that the change affects onlythe manner of exercising the right. A new incorporeal right iscreated. But, as there is the very high authority of de Sampayo J.to the contrary in the case of Costa v. Livera1 with which my brotherKoch is in agreement, and as the view taken in that case is said notto have been questioned—although I would add, that this point didnot come up directly for consideration in any of the later cases cited tous—I agree to make the order proposed by my brother and I comfortmyself with the reflection that the order proposed does justice betweenthe parties on the actual merits of this case.
Appeal dismissed.