020-NLR-NLR-V-65-J.-P.-CORNELIS-and-others-Appellants-and-N.-E.-FERNANDO-Respondent.pdf
TAMBIAH, J.—Cornelia v. Fernando
93
1982Present: Tambiah, J.
J.P. CORNELLS and others, Appellants, and 1ST. E. FERNANDO,
Respondent
S.C. 133—G. R. Gampaka, 7696[A
Servitudes—Right of way—Indivisibility of a servitude.
In an action in which the plaintiff claimed to be declared entitled bo a rightof way by prescription, it was shown that between the plaintiff’s land andthe defendants’ land there was an intervening land over which the owner“ allowed ” the plaintiff to go.
Held, that, in the absence of a finding that the plaintiff established a right ofway by prescription over the intervening land, the Court could not grant theplaintiff a right of way through the defendants’ land.
Appeal from, a judgment of the Court of Requests,
Gampaha.
E. Chitty, Q.C., with E. B. Vannitamby, for Defendants-Appellants.
E. A. G. de Silva, for Plaintiff-Respondent.
October 18, 1962. Tambiah, J.—
The plaintiff brought this action against the 1st to oth defendants andclaimed a servitude of a right of way. He claimed this servitude by pres-cription. The plaintiff’s and the defendants’ lands are shown in planPI. Between the plaintiff’s and the defendants' lands there is anintervening land belonging to Nicholas Silva.
The plaintiff, in the course of his evidence, has stated that NicholasSilva allowed her to go over this land. The learned Commissioner ofRequests does not find that the plaintiff has established a right of wayof prescription over the land of Nicholas Silva, but the learned Commis-sioner has held that the plaintiff has established a right of way through thedefendants’ land along the dotted path shown in the plan. “ Servitude isone and indivisible, in the sense that it must be shown legally to existat each and every point on the strip of land over which it is claimed andif the claimant fail to prove its existence at any one of such points, theservitude disappears not at that point only but at every other point. ”(Dictum of Macdonell, C. J., in 34 N. L. R. 114.)
Counsel for the Respondent concedes that this proposition of law isunassailable. Therefore the learned Commissioner has erred in holdingthat the Plaintiff has established a right of way by prescription from thepoint shown in the plan to the main road through the defendants’ land.
By way of alternative claim the plaintiff also claims a right of way ofnecessity. The learned Commissioner has not investigated this matter.It may be noted that Nicholas Silva has not been made a party to this
94T. S. ISBEASmO, J.—Bumad ». Jitiee Bcvu»
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case. The learned Commissi oner has formally answered the issue thatthe plaintiff has a right of "way of necessity over the defendant's land, buthas given no reasons. It may be necessary to make Nicholas Silva aparty to this ease if a right of way of necessity is going to be claimedfrom the plaintiff's land, through Nicholas Silva’s land and the defendants'land.
I therefore set aside the order of the Commissioner and send the casehack in order that he zn.ay try the issue as to whether the plaintiff isentitled to a right of way of necessity over the defendants’ land. TheAppellant is entitled to oosts of the trial as well as costs of this Court.
Order set aside.