007-NLR-NLR-V-16-COSTA-v.-LIVERA.pdf
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Present: De Sampayo A.J.
COSTA t?. LIVERA.
C. R. Negomho, 18,621.
Servitude—Substitution of a new right of way for an old one—Non-notarial agreement—Benefit of possession of old route attaches tonew route—Owner of the dominant tenement must be restricted to ‘the new route.
The plaintiff claimed a right of way along the line marked
d.d. The defendant averred that the parties had by
mutual consent (without a notarial deed) substituted a new route
aa for the old route dd. The new route crossed
the old route at the point at whioh the plaintiff alleged that
defendant had obstructed dd.
Held, that if the plaintiff had definitely abandoned the route■ dd, he must be restricted to the new route aa.
“ Ordinance No. 7 of 1840 will not be in the way of such restric-tion, even if the user of the new line aa has not been long
enough to give plaintiff a new right by prescription.”
The essence of the servitude is the right of way over the servienttenement, and the particular route affects only the manner of itaexercise. What is prescribed for. by long user is not the groundover, which the way lies, but the incorporeal right of servitude.The benefit of the possession of the old route would attach to thenew route.
HE facts appear sufficiently from the judgment.
St. V. Jayewardene, for the plaintiff, appellant.—When thedefendant obstructed the new Foute, thp plaintiff acquired the rightto use the old route. (Payne v. Shedden l) In Fernando v. Mendis %there was a total abandonment of a servitude. Here there was onlya substitution of one right of way for another. Fernando v. Mendis %does not therefore apply to the facts of this case.
Jayattleke, for the defendant, respondent.—It is clear that theold route was abandoned and a new route substituted about fouryears ago. The plaintiff cannot now seek to get a declaration ofright over the old route. Fernando v. Mendis 2 is a clear authorityon that point. The benefit of the possession of the old route wouldattach to the new route. The plaintiff should have asked for adeclaration of his right over the new route. Payne v. Shedden 1 does
* M. A R. 882.
(1911) 14 N. L. R. 101.
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not hold that where the substituted route is obstructed the ownerof the dominant tenement is entitled to the old route.
A. St. V. Jayewardene, in reply.
Cur. adv. vult.
July 29, 1912. Db Sampayo A. J.—
The plaintiff brings this action for obstruction of a right of waywhich he claimed over the defendant’s land. The way claimed is
along the line marked d….d in the plan filed in the case.
That plaintiff has a right of way is not denied, but the defendant
disputes the plaintiff’s present claim to use the route dd
for the reason that the parties had by mutual consent substituted
a new route marked aa in the plan for the old route
dd. The contention for the defendant is that the plaintiff
has lost the servitude of way over the line d,…d by abandon-
ment or release. That a servitude ia extinguished by abandonmentis, of course, indisputable. In Fernando v. Mendis,1 which is reliedon', the servitude was a right to draw water from a particular well,but that decision is no authority for the present contention. Aban-donment or release is a question of fact in each case; and the pointin this case is whether the mere fact of a new line of way beingadopted in lieu of the old line is- proof of abandonment of theservitude of way over the defendant's land along the old line."Without more evidence I cannot say it is. There was no evidencegone into at the trial, but the Court decided more or less as an ab-stract question of law on the mere admission ** that plaintiff by agree-ment used the line aa instead of dd. As regards the
law, as I have said, the decision I have above referred to does notquite apply. There is not much direct authority that I can discoverapplicable to the point. Voet 8, 3, 3, says that the owner of theservient tenement may by election or agreement alter the route,provided the change does not prejudice the owner of the dominanttenement. See also Maasdorp's Inst. 183. But it is not clearwhether the owner of the dominant tenement may revert to the useof the old route, or whether – the servitude must in the case of achange be confined to the new route. I should say that if the ownerof the dominant tenement has finally and definitely agreed to thenew route in lieu of the old route, such permanent change wouldbind him to the extent of disentitling him to use the old routeagain except by a fresh agreement.* The matter may be compli-cated with us by reason of such agreements affecting land beingrequired to be in writing notarially attested, and possibly it was theperception of this difficulty that induced the plaintiff to claim theold route in this case. Mr. Jayatileke, for the defendant, madethe acute suggestion that where, as presumably in this case,the servitude was acquired by prescription, the benefit, of the
i (1913) 14 N. L. R. 101.
1912.
Costa v.Livera.
1912.
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Be SampayoA.J.
Costa t>.Livera
old possession would attach to the new route, and he arguedthat- the plaintiff could now exercise his prescriptive right overthe new route. I think this argument is sound, because, after all,the essence of the servitude is the right of way over the servienttenement, and the particular route affects only the manner of its.exercise. What is prescribed for by long user is not the groundover which the way lies, but the incorporeal right of servitude.This is not inconsistent with, but is in a sense supported by, thedecision in Payne v. Shedden,1 which was cited by Mr. A. St. V.Jayewardene for the plaintifE. There the action was for trespass(quare clausum fregit), and the defendant justified by pleading aright of way over the plaintiff’s land by user for twenty years. Itappeared that the line of the way had been a good deal variedduring the twenty years, and at certain periods wholly suspended byagreement between the parties; and it was contended that a userwith such variations and suspensions did not support the existenceof a servitude or easement at all. The Court held, first, that asuspension of enjoyment by agreement would not extinguish theright; and secondly, that the user of a substituted line would bean exercise of the right and evidence of its continued enjoyment;that is to say, that the right of easement by whatever route remain-ed unextinguished, and was a good answer to the action for trespass.That case did not decide, and was not intended to decide, as towhat route the defendant was ‘entitled or was bound to use. Inmy opinion this case cannot be decided on a mere abstract questionof law, but can only be determined on evidence. If the plaintiff
definitely abandoned the route dd, I think that he must
now be restricted to the new route aa. For the reasons
I have indicated the Ordinance No. 7 of 1840 will not be in the way
of such restriction, even if the user of the new line aa has
not been long enough to give plaintiff a new right by prescription.The length of time during which the new route has been usedinstead of the old one would, however, be a relevant fact- for con-sideration in connection with the question of abandonment. Butif the substitution was made under such circumstances that theinference of abandonment can be drawn, the question of time wilLnot be of much consequence (Reginav. ChoHey 2). Ifuponthe
evidence the Court finds that the rightto use the rout© dd
can no longer be maintained, but that the plaintiff’s right is to
use the route aa, it does not follow that the plaintiff’s
action must necessarily be dismissed.
The point of obstruction complained of is at the junction of thetwo routes, and the plaintiff has a cause of action whichever lineof way he may ultimately be foundentitled to use.Itistrue
that in the plaint he asserted his rightto use the route dd,
but it would be convenient, and save both parties further expense,
i Af R. 382.
* 12 Q. B. 515.
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if the dispute be determined once for all in this action. The actionmay, therefore, proceed upon the footing that the defendant issued for an infringement of the plaintiff’s right of servitude byputting up an obstruction at the point indicated in the plan, whether
the route up to the point of obstruction is along the line dd
or along the line aa. This may be done after amendment
of the pleadings if necessary and upon proper issues to be framed,and subject to such order ns to costs consequent on such amend-ment as the Court may think fit to make.
The judgment appealed against is set aside, and the case is sentback to be proceeded with as above indicated. The costs of thelast trial and of this appeal will abide the final result.
1912*
Be SaMpayo
A.J.
Costa «.Livera
Sent back.