098-NLR-NLR-V-23-BISOHAMY-v.-JOSEPH-et-al.pdf
( 300 )
1923.
Present; De Sampayo J.
BIBOHAMY v. JOSEPH et ah
37—0, B. Colombo, 81,751.
Building of boundary wall—Encroachment—SmaU strip—Action fordeclaration of title—Order to pay compensation rather than breakdown w aU.
Defendant built a boundary wall, and in doing so encroachedupon a very small strip of land belonging to the plaintiff. Theplaintiff who was aware of the building raised no objection at thetime. In the circumstances the Court instead of giving judgmentfor the actual portion encroached upon, as prayed for by plaintiff,ordered defendant to pay compensation for the encroachment.
“ The strip is so narrow that it would be inequitable to compelthe defendant to break down the wall.”
T
HE plaintiff instituted this action for a declaration of title totwo narrow strips of land marked X and Y depicted on plan A,
alleging that the defendants had encroached on same.
The defendants denied the allegations, and further stated thatthe boundary wall had been put up with the knowledge and consentof the plaintiff, and that she was estopped from denying thecorrectness of the same.
The Commissioner of Bequests (F. Roberts, Esq.), held that—
Plaintiff was owner of lots X and Y in plan A ; and that (2)plaintiff was not estopped from denying the correctness of thepresent boundary wall.
NagaKngam, for the appellants.
P. Perera, for the respondent.
( 361 )
May 12,1922. Db Sampayo J.—1922. %
The plaintiff has brought this aotion asserting title to very BHohamyamafl Btrips of land marked X and Y in the plan marked A, and '*•stating that the defendant had enoroached on the plaintiff’s landby appropriating the two strips in question. It would be observedthat the encroachment Y is part of what is described in thatsurvey as “ Reserved road approach/’ Now the plaintiff herselfderived title to the land, of which these two strips are said tobe portions, upon deed No. 830 dated January 24, 1912. Tothat deed was annexed survey marked P 1 dated December 17,
1911. Aocbrding to the boundaries stated in the deed and inthe survey, it is quite clear that the passage or road reservationin question was excluded from the conveyance, for the easternboundary of what was conveyed was stated to be “ Grown landand passage.” The passage indubitably is this reservation. Thisis made more dear by a later survey produced by the plaintiff,namely, that marked P 2 dated September 24, 1916, in which thepassage or road is described as Crown.reservation. Consequently,the plaintiff, I do not think, can succeed on the first issue as regardsencroachment Y. The encroachment marked X stands on adifferent- footing. That portion may be a part of the land belongingto the plaintiff. There is evidence which the learned Commissioneraccepts that the boundary between the plaintiff's and the ddendants’land was a line of areoas and wild apple trees, and that the defend-ant ignoring that boundary has recently built a boundary walltaking in the trees or some of the trees which really form part of theboundary between the two lands. The evidence does show thatthe conclusion of the Commissioner on that point is right. Evenso, what remedy should the Court allow to the plaintiff ? Itappears that the wall in question was not built in a day, but tooksome time in the building, and the plaintiff was aware of it. Butthere was no objection to it until the defendant, after completingthe building of it, sent aletter of demand claiming half the expensesfrom the plaintiff. In a case of encroachment like this, it does notnecessarily follow that the plaintiff should get judgment for the^actual portion encroached on, with the result that any buildingshould be broken down. The case of Migud Appuhamy v. Thamel1is an authority for saying that under certain circumstances theCourt, instead of ordering the removal of the encroachment, mayeither order compensation to be paid by the defendant, or compel thedefendant to buy the land encroached upon. Apart from the factthat the plaintiff was, apparently aware of the building of the wall,the strip at point X is so narrow that it would be inequitable tocompel the defendant to break down the wall. It would, on thecontrary, be more beneficial for both parties if the plaintiff weregiven some compensation for the strip at point X, and the defendant
* 2 Cur. L. B. 209,
1888.
DB 8&MPAYO
J.
^ Biaohamy«. Joseph
i 3«2 )allowed to retain the walL There is no material in the ease toenable me to assess the proper amount of compensation whichshould he paid, and I think the ease must go back for furtherproceedings on that point.
There is another objection pointed out, namely, that the decreehas awarded damages at the rate of Bs. 5 a month from March, 1921,.which is the date of the alleged encroachment. Now,'from thenature of the land, no damage could have arisen from loss of profitsor income, and there is no particular evidence showing in what waythe / plaintiff could have suffered any d&ia&ge. The fact of thematter appears to be that the deem was framed upon the prayerscontained in the claim without any consideration being paid as to1the actual result of the trial bn evidence. I think the awardof damages mould be deleted. I accordingly set aside the decree;<&pect of the matters I have dealt with, and send the caseback in order that the Commissioner might award to the plaintiffreasonable compensation in respect of the encroachment at" X inthe plan. • The defendant, I think, is entitled to the costs of thisappeal. The costs of the trial already had will be borne by theparties respectively.
Sent back.
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