100-NLR-NLR-V-22-JAYASUNDARA-v.-GODAGE.pdf
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Present: ShawJ.JAYASUNDARA v. GODAGE.
226—C. B. Oalle, 1,963.
Overhanging trees—Right to cut down—la order of Court necessary ?—
Only one co-owner objecting—Have all co-owners to be joined t
In strict law an order of Court is not necessary to out downoverhanging branches if the person whose land is overhungwith branches could clip the branches without trespassing on hisneighbour’s land. It is desirable that an order of the Court shouldbe obtained in case there is opposition to the trimming of thetrees.
Where only one co-owner raised objection to the cutting of thetrees, it was held that there was no need to make the otherco-owners parties to the action.
rj^HE facts appear from the judgment.
J.S. Jayawardene, for the defendant, appellant.—The defendantis not the sole owner of the land on whifeh the trees stand. Theother co-owners should have been joined as defendants. [Shaw J.—Is an action necessary at all for cutting down overhanging trees ?]
Elliott, K.C., for the respondent. — The plaintiff anticipatedtrouble.
Jayawardene, for appellant.—The appellant does not contest theright to cut down overhanging trees in view of the judgment inffiuttiah v. DiasJ [Sh*aw J.—Do the other co-owners object ?]They might.
Elliott, K.C., for respondent, not called upon.
March 7, i921. Shaw J.—
The respondent sued the appellant for the purpose of having sometrees which overhang his field out down on the ground that theydamage his cultivation. The Commissioner has inspected the treesand found that they do overhang the plaintiff’s land, and has madean order issuing authority to the plaintiff to cut the overhangingbranches. The defendant appeals. It is clear from the judgmentin Muttidh v. Dias1 that the owner of a land which is overhungby a neighbour’s .trees has a right to have the overhanging treescut. It was proper to bring an action for the purpose, beoause an
1 (1S87) 2 N. L. R. 83.
1921-
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1921. order of the Court is advisable in ease opposition should bo madehJI~t to the trimming of the trees. In strict law, however, it appears
to me that an action for an order of the Court would not he necessary
Jayatundara if-the person whose land is overhung with branches should clipthe branches without trespassing on his neighbour’s land. It isvery desirable, however, that legal authority should be obtainedbefore this right is exeroised. A point was taken on the appealthat the other co-owners of the defendant should have been joinedaB parties to the action. It appears from the trial, however, thatthe only person raising objection to the clipping of the branchesis the person sued. I do not think it necessary in the present caseto go to the extent of adding persons who do not wish to contest theright claim of the defendant.
I therefore dismiss the appeal, with costs.
Appeal dismissed.
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