013-NLR-NLR-V-17-MORGAPPA-v.-CASIE-CHETTY.pdf
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MOBGAPPA e. CASIE CHETTY.
353—C. R. Colombo, 34$09.
A. St. V. J ay ewardene, for appellant.
Bawa, K.C., for respondent.
November 6, 1913. Ennis J.—
The principles governing in Ceylon the acquisition of rights of way byprescription have been laid down' in the cases Karunaratne. v. Gabriel Appu-hamy (15 N. L. R. 267), Andris «. Manuel (2 S. C. D. 69), and Kandaiah ®.Seenitamby.2 The track over which the right is acquired Jhust be strictlydefined, and one track cannot be substituted for another withont a notariallyexecuted document or- user of the new track for the full prescriptive period.Costa v. Livera'(16 N, L. R. 26) can be distinguished, because in that case theexistence of a right of way was admitted.
In this case the plaintiff claimed by prescription a right of way for himself,his servant, and others to andfromhis honseand the Santiago road overthe
plot of land belonging to thedefendant, andthe case went to trial onthe
following issues:—
Is plaintiff by long possession and prescriptive right entitled to a
right of way from house 'No. 94 over the defendant’s premises
No. 88 to Santiago road?
If so, is the plaintiff entitled to the passage from A to B as shown on
the plan?
If. plaintiff has acquired such a right over the route A B, has she lost
the same by abandonment or release?
The learned Commissioner of Bequests found the following facts:—“ Forthe last seventy, years the occupants of No. 94 nsed to go to the Santiago road,<m the west of No. 88, by walkingacross thedefendant’s land. For yearsthe
defendant’s land lay there as abareland withthree huts on it, and acrossthis
* S. C. Min., June 26, 1909.'* {1913) 17 N. L. R. 29.
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11918. people went to and from No. 94 by the shortest route. The defendant did no.w— and again patch up that apology for a fence, which ran by the side of theSantiago road, but in that fence there were perforce openings. The track-which the occupants of No. 94 used was only approximately the line A B, andprobably ran a little to the north of it in consequence of the hut standing'at the point B.”
In 1905 defendant erected a bamboo fence along A C, blocking the originalpassage, and plaintiff's people then – used the passage A C. Later the defendantblocked A C, and plaintiff’s people then used the track A D.
The prescriptive period for the acquisition of a right of way along A C orA D has not expired, and no right of way along those lines has been acquired.
With regard to the right claimed along A B, the plan filed with the plaint isnot a survey plan. It does not agree with the survey town plan out in by thedefendant. The line A B on the plan isf therefore, not clearly defined on theplan. The evidence has proved without doubt a gap (A) in the boundarywall betweenthepremises of the plaintiffand defendant, but the other end of
thetrack isnotcertain. It would seemthat at times the servants' entrance
to No. 88 was used, and that at other times gaps (more than one) in the fencealong the Santiago road were used.,
The evidence seems to me to make it perfectly clear that after passing thepoint A people passed over the defendant's land to any opening on the Santiagoroad at the time- available; there was no clearly defined terminus on theSantiago road, and there was no clearly defined track between two points; itwasa bare land,over which people passedin any direction as convenience and
thestate ofthefence required. In thesecircumstances, no right of way by
prescription could be acquired. To establish a right of way by prescription itis not sufficient to show that people passed over the land, it must be provedthat they used a clearly defined £ track for the full prescriptive period.
I allow the appeal* and direct that the action be dismissed with costs.
Appeal allowed.