DON SIMON PETER et al. v. JAMES FERNANDO et al

136-NLR-NLR-V-40-DON-SIMON-PETER–et-al.-v.-JAMES-FERNANDO-et-al.pdf


Don Simon Peter v. James Fernando.
495
1939
Present: Hearae J.
DON SIMON PETER et al. v. JAMES FERNANDO et al.
201—C. R. Negombo, 43,338.
Servitude—Right to draw tpater from well—Right of way through interveninglands—The well abandoned—Less of right of way as accessory—Aquaehaustus.
Where there are two servitudes—the one principal and the otheraccessory, which are due at the same time—and the principal servitudeis abandoned, the accessory must also be regarded as having beenabandoned.
496
HE ARNE J.—Don Simon Peter v. James Fernando.
^ PPEAL from a judgment of the Commissioner of Requests, Negombo.
N. E. Weerasooria, K.C. (with him H. A. Wijemanne), for plaintiffs,appellants.
N. Nadar ajah (with him 5. Mahadeva), for first defendant, respondent.
Cyril E. S. Perera, for third defendant, respondent.
Cur. adv. vult.
February 9, 1939. Hearne J.—
The plaintiff established that for over a period of ten years he hadused a footpath which led from his land, (1)' in the plan, through the landof the third defendant, (4) in the plan, again through the land of thefirst defendant, (2) in the plan, and finally through the land of the seconddefendant, (3) in the plan, to the land of Anthony Silva in which therewas a well, I. in the plan, from which he drew water. He used the foot-path FGI.
Seven years ago the well I. crashed, and after an interval of about amonth, the plaintiff started to use and continued to use up to the timethe action was filed, a well H on the land of the second defendant. Heused the path from F to G and from the latter point, by a slight diversion,the path GH.
The second defendant raised no objection to the use of so much of thepath as is represented by GH, or to the drawing of water at H, but as itwas held by the Commissioner that the plaintiff “had not prescribedto the right of way FGH” his access to the well along the route FG isbarred. He has now appealed.
It was argued on behalf of the plaintiff that the servitude of drawingwater (aquae haustus) at I. gave him the right to use path FG, as partof the path FGI, and that although the use of the well at I. had been disconti-nued the right of way oyer FG was unaffected by such discontinuance.
If this argument were sound it would follow that even if there had beenno well in (3) from which .the plaintiff could have drawn water either byagreement or by claim of right, he would still be entitled to use FG withoutlet or hindrance.
This offends against first principles. Servitudes are indivisible in theirnature. If two distinct principal servitudes are due from the sametenement, the abandonment of one does not destroy the other: butwhere there are two servitudes—the one principal and the other accessory,which are due at the same time—and the principal is abandoned, theaccessory also is regarded as abandoned. (Voet VIII. 6, 5.)
It was. however, alternatively argued that the servitude had not beenabandoned and that it had been merely diverted. I am unable to agreewith this. The original servitude of aquae haustus in respect of the wellat I. is not the same as drawing water from H which, even if based on aclaim of right, has not hardened into a servitude. There is no servitudeof way over FG which subserves or is accessory to any existing servitude• of drawing water at H. I am sorry for the plaintiff but I think the law isagainst him.
I dismiss the appeal with costs.
Appeal dismissed.