084-NLR-NLR-V-58-K.-NAGALINGAM-et-al.-Appellants-and-KATHIRASIPILLAI-et-al.-Respondent.pdf
2956Present: Gratiaen, J.
K.NAGALTXGA^I el al., Appellants, and KATHIRASIPILLAI el al.~
Respondents
S. O. 4—C. It. Jaffna, 1,970A
Servitude—Right of icaj—Splitting up of a land—Right of each portion to outlet.
Where a land, one of the boundaries of which is a public lano, is split up into-two or more portions, tho back portion, which would otherwise bo land-locked,must retain its outlet to tho public lano over tlio front- portion, even in thoabsence of an express reservation of a servitude. Tho splitting of tho landc<uuiot impose a servitude upon tho neighbours.
-/^■PPEAL ftora a judgment of tlie Court of Requests, Jaffna.
G. Ranganatlain, with P. Naguleswarum, for the 2nd to 4th defendantsappellants.
A. Santhandan, with S. Thangarajah, for the plaintiff respondent..
Cur. adv. vult-
Marcli 22, 1956. Guattaex, J.—
This is an appeal against a judgment declaring the plaintiff, as ownerof a divided allotment of land described in schedule A to his plaint, entitlecLas against the appellants to a right of way of necessity over a patb-(dcscribed in schedule 33) leading to a public lane (hereafter called:t: the Eastern lane ").
The relevant facts arc best understood by reference to the sketch P-t-filc-d of record. The plaintiff’s allotment (Lot 4) had originally formed,part of a larger land (including Lots 1, 2, and 3) belonging to her parents.The Northern boundary of this larger land was a different public lane(hereafter referred to as the Northern lane ”), and the entire propertywas later subdivided between members of the plaintiff’s family. Theconveyance in favour of the plaintiJOf (PI of 1928) passed title to her inrespect of Lots 3 and 4 together with, inter alia, a right- of way and water-course leading to a well (situated on Lot 1) which almost adjoins theNorthern lane. The plaintiff later conveyed hot 3 to her daughter its1914 together with similar servitudes.
The right of way now claimed by tho plaintiff is along a path which liesimmediately to the South of Lot 4. This path had at one stage formed•part of a different land, owned in common by the appellants and others,which was the subjcct'mattcr of a final decree for partition dated 31stOctober 1944 in X). C. Jaffna No. 1G799. The footpath was reservedfor the common use of the proprietors of the several divided allotments-dealt with by the decree in order to give them access to the Eastern lane_
It is admittedly immaterial to the plaintiff -whether he should have^access from Lot 4 to the Northern lane or to the Eastern lane.. Thebasis of his claim is that the owners of Lots 1 and 2 will not permit him aright of way over their lands, so that he must of necessity be granted aservitude along the path which is the common property of the appellants.The learned Commissioner accepted this argument and entered judgmentin his favour as prayed for.
The plaintiff’s claim clearly cannot be sustained. Lot 4 originallyformed part of a larger land which was admittedly served by the Northernlane. Upon the subdivision of the larger land, each person who receivedan allotment which would otherwise be land-locked automatically becameentitled under the Roman Dutch Law to a right of way over the allotmentor allotments adjoining the public lane. Maasclorj) {Ecln . 7(h) II, pjy. 1S2—1-S3. As was pointed out in Wilhelm v. Norton 1 .-
“ When a piece of land is split up into two or more portions, the backportion must retain its outlet over the front portion even though nothingwas said about it, because the splitting of the land cannot impose aservitude upon the neighbours.”
This very sensible principle would have applied in the present caseeven in the absence of an express reservation of a servitude. But Iobserve that the conveyance PI in favour of the plaintiff did reserve tolier, as owner of Lots 3 and 4, a right of way leading to the well on Lot 1,so that all that remains for him is to vindicate against his relatives whonow own Lot 1 his right of access to the Northern lane which lies only afew yards beyond the well. Accordingly, the foundation to her claimto a right of way over the appellant’s common property disappears. Xallow the appeal, and dismiss the plaintiff’s action with costs in bothCourts.
Appeal allowed.