065-NLR-NLR-V-26-SILVA-et-al.-v.-ISOHAMY.pdf
( 374 )
1924.
Present: Bertram C.J. and Jayewardene A.J.
SILVA et al. v. ISOHAMY.
450—D. C. Galle, 18,890
Servitude—Effect of a partition decree—Mutual rights of co-owners-Power of Court to provide /or reasonable servitudes. ,
A partition decree extinguishes ail casements not specificallyprovided for in the decree, whether such, easements be claimed aabetween co-owners or by the owners of neighbouring lands overthe land partitioned.
Semble a Court has power in dealing with a partition actionto provide for all reasonable servitudes as between co-owners. Aservitude ne luminibus officiatur would be such a servitude.
I
N a partition action the plaintiff and the defendant had beenallotted adjoining lands under the decree. Defendant's lot
contained a house which was over ten years old, situated close to thedefendant’s boundary. Plaintiff proposed to erect a wall along hisboundary, which it is admitted would interfere appreciably withdefendant's light and air, and the present action was brought bythe plaintiff to obtain a declaration of his right to build it.
Samarawichremet for plaintiff, appellant.
M. .IF. H. tie Silva, for defendant, respondent.
September 16, 1924. Bertram C.J.—
In this case plaintiff and defendant had been allotted certainadjoining lands under a partition decree. Defendant's lot containeda house which was over ten years old, and this house under thescheme of partition was situated close to the defendant's boundary.Plaintiff now proposes to erect a wall, seven feet high, along hisboundary. It is admitted that this wall will appreciably, interferewith defendant's light and air. Indeed, it almost touches the loweststep leading up to his house. The defendant objects to the erectionof this wall, and the present action is brought by plaintiff to obtaina declaration of his right to build it.
■ The defendant is certainly in a very unfortunate position. Itappears to be settled law that a partition decree extinguishes alleasements not specifically provided for in the decree. This .is heldto be the effect of section 9 of the Partition Ordinance, No. 10 qf1863, which declares that the partition is good and conclusiveagainst all persons whomsoever, whatever right or title they have
( 375 )
or claim to have in the property partitioned. See Oirigaris v.Mammadu Meedin.1 It seems clear that this principle applies to•easementsclaimedasbetween co-proprietorsequally with the
•easementsclaimedoverthe land partitionedby the owners of
neighbouring lands.t
Even therefore if it were clear that a co-owner who erects a houseupon land held in common can acquire by prescription a servitudene luminibus officiaturas against a co-owner(a question which
it is hot necessary for us to determine), and even if such a servitudehad beenacquiredinthe present case, itwould have been
extinguished by the decree. In any view of the case, therefore,plaintiff is entitled to the, declaration which he seeks.
This case draws attention to the importance of making provisionin partition decrees for the respective rights of co-owners in suchmatters as these with respect of the lands assigned to them inseveralty. It is always competent to a Court in granting a partitiondecree to provide for mutual servitudes. One of the recognizedways by which a servitude may be created is officio iudicis, seeVoet 5, 4, 2. Sed et officio iudicis in iudiciis divisoriis easdemconstitui nihil vetat. This opinion is based, among other passages,upon a passage in the Digest 10, 2, 22, where Ulpian, quoting Labeo,declares that a Judge in an action families ercisundw may divide afarm into different tracks and assign them to the heirs; he adds,’sed etiam curn adjvdicat, potent imponete aliquant servitutem. Thesame principle was held to be applicable to an action eomtnunidividundo, see Digest 10, S, 7. It appears clear, therefore, that aJudge in our own Courts dealing with a partition action may providefor all reasonable servitudes as between the* co-owners.
It is also appears to be clear that a servitude ne luminibusiofficiatur would be such a reasonable servitude. I am disposed tothink that even without a period of prescription a co-owner, whoreasonably and without objection from his co-owners builds a houseupon common land, would be able to restrain a co-owner fromerecting a wall in such close proximity to the house as to obstructthe lighting of it. As was observed by Bonser C-J. in Siyadoris v.Hendrick 2 there is surprisingly little authority as to the mutualrights and obligations of co-owners. But it appears to be settledlaw in South Africa that each co-owner is entitled to make only areasonable use of the common property. See Maasdorf, vol. II. tchap. 14, ad initium. Further it has been held in our own Courtsthat a co-owner who has so erected a house is entitled to eject anyother co-owner who attempts to occupy the house without hispermission. See Kathonis v. Silva.3 Suppose one co-owner sowedsrops and. erected a fence round the crops to protect them fromcrild animals, he would clearly be entitled to object to another
1 (1905) 1 Bal. 177.* (1896) 6 N. L. R. 275.
* (1919) 21 X. L. B. 482.
1924*
Bertram
Of.
Silva v.Iaohanvj
( 376 )
1924.
Bertram
ex,
Silva v.Isohamy
co-owner removing the fence and ploughing up the strip on whichit stood. Similarly (particularly in urban areas), I think a co-ownerwho erected a house on the common land would be entitled to objectto another co-owner unreasonably erecting a wall in such a way,as to block his light. It would clearly be reasonable, therefore, thatin a partition action the Judge should, where necessary, take careto preserve to such a co-owner an equivalent of the right which heenjoyed before the partition, subject, no doubt, to such compensationas the other co-owner thereby affected ought reasonably to receive.
Unfortunately, nothing of the kind has been done in the presentcase. In my opinion, therefore, the appeal should be allowed withcosts, both here and in the Court below, and the plaintiff must begranted the declaration-he seeks.
Appeal allowed.