086-NLR-NLR-V-45-AMARASURIYA-Appellant-and-S.-I.-PERERA-Respondent.pdf
348
WIJEYEWARDENE J.—Amarasuriya and S. I. Perera
"1944Present: Wijeyewardene J.AMARASURIYA, Appellant, and S. I. PBEERA, Respondent.
212—C.R. Negombo, 45,482.
Servitude—Cartwayof necessity—Basisof claims—Actual necessity ofthe
case.
A right of cartway by necessity can be claimed no further than the 'actual necessity of the case demands..
A PPEAL from a judgment of the Commissioner of Requests, Negombo'.
E. B. Wikremanayake, ior defendant, appellant.
L. A. Rajapakse, for plaintiff, respondent.
Cur. adv. vult.
JVIay 30, 1944. Wijeyewardene J.—
The plaintiff instituted this action claiming a right of cart-way ofnecessity over the land cf the defendants. The cart-way claimed is10 feet wide and nearly 75 yards long. The defendants disputed the
.plaintiffs right to the relief claimed.
1 16 N. L. R. 53.
* 3 Lorensz 76.
WUE YE WAB.DENE J.—Amarasuiiya and S. I. Perera
349
The Commissioner of Requests held that the plainti£E was entitled to aright of cart-way on payment of Us. 50 as compensation. After citinga passage from Maasdorp’s Institutes of Cape Law to the effect that “ theright to a way of necessity is indefinite in its character and not limitedto any particular route,” the Commissioner omitted to give any directionsin his judgment for marking the track along which the right is to beenjoyed. The decree itself declared merely that the plaintiff “ is entitledto a right of cart-way of necessity over the lands of the defendants.”This is not a proper decree to be entered in an action of this nature.The learned Commissioner appears to have misunderstood the passagefrom MaasdoYp cited by him. That passage has reference to the rightsof the parties before they come to Court. But when the matter is broughtbefore the Court, this indefinite right of way must be converted into an-express and definite right of way by the decree of Court.
Jl is admitted that the plaintiff has a right of footpath over thedefendant’s land. The existence of such a right does not, of course, barthe plaintiff from claiming a cart-way of necessity. .Boteju v. AbilinuSinghol. The plaintiff could make such a claim successfully if thereare special circumstances which call for the exercise of the Court’s dis-cretion in his favour and the granting of the relief claimed. I wouldrefer in this connection to ^the following passage in the judgment ofde Villiers C.J. in Peacock v. Hodges 2: —
*' The authorities in the Roman-Dutch Law clearly shew that a rightof road by necessity can be claimed no further than the actual necessityof the case demands …. Moreover I think, in the presentcase, that if the plaintiff’s case rests on a right of way by necessity,that a three feet passage would be quite sufficient to allow to theowner of the hire houses as a means of access. A right of way bynecessity does not give a right to the enjoyment of a greater servitudethan the absolute necessity of the ease requires; and the necessity inthis ease would not require more than that the tenants of the smallhire houses should have the means of ingress and egress.”
The plaintiff bases his claim on two grounds: —{1} that he lives in ahouse on the land and that he owns a car purchased in 1930 and (2)that it is necessary to employ carts to take the produce of the land.
Now the plaintiff bought this land less than 4 years before the in-stitution of this action. It was a bare land at the time. He put up ahouse about 3 years after his purchase and lived there with his wife forabout 4 months and then the wife went to live at Moratuwa. The plaintiffdoes not say in his evidence that he continued to Jive in the house afterhis wile went to Moratuwa. The evidence for the defence is that theplaintiff is not living now on the land. In any event the plaintiff is aGovernment Servant and it is not unlikely that he will be transferredwithin a few .years from this station to another station. The plaintiffdid Dot construct a garage for his car on this land. He built a garageon an adjoining land of which his mother is said to own an undividedshare. The plaintiff himself admits that there was no cart road to theland before his purchase. The evidence does not show any good reason
1 (1919) .7 C- W- R. 36.
(1876) Buchanan's Reps. 65.
350
SOERTSZ J.—Abeyewardene and Nicolle
why the plaintiff should not walk to the garage on the adjoining landand drive the car from there. I would adopt respectfully the obser-vations made by Drieberg J. in Fernando v. de Silva 1 :
“ These lands lie a short distance from the Negombo-Mirigamaroad. The land in that part of the country, as indeed is the case inmost rural areas, consist of numerous small holdings and necessarilycomparatively few of them can have direct access by carts to the mainroad. Under these conditions the respondents whose lands cannot bedescribed a-s bloklands, because they have free access to a road by thepath, cannot say that a cart-wav is a necessity. Far from this beingthe case it would be a distinct luxury not enjoyed by the majority ofowners of similar lands.”
As for the second ground, I think that a judge would be taking anunreal view of the conditions obtaining in this country- if he held thatthe owner of a compound of half an acre requires a cart-way for tran-sporting his coconuts.
The granting of the cart-wav claimed will impose a very heavy burden:on the defendant whose land appears to be not even an acre in extent.
I set aside the judgment of the Commissioner and direct decree to beentered dismissing the plaintiff’s action with costs here and in the lower-Court.
Appeal allowed.