Thalayasingham and Others v. Nagaratnam and Another

049-SLLR-SLLR-1978-79-V2-Thalayasingham-and-Others-v.-Nagaratnam-and-Another.pdf


CA Thalayasingham and Others v. Nagaratnam and Another 387
Thalayasingham and Othersv.Nagaratnam and AnotherCOURT OF APPEAL
SOZA, J., AND L. H. DE ALWIS, J.
A. 800/75
C. JAFFNA CASE NO. 4268/LNOVEMBER 30, 1979.
Servitudes — Rural (or rustic) servitude of aquae ductus — Does the right ofwater course include the right to draw the water along a pipe-fine ?
The rural (or rustic) servitude of aquae ductus includes the right to leadthe water along a pipe-line.
APPEAL from judgment of the District Court of Jaffna.
Appellants absent and unrepresented.
388
Sri Lanka Law Reports
(1978-79) 2 Sri L. R.
K.Kanag Iswaran for respondents.
November 30, 1979
SOZA, J.
tn this case the plaintiffs sue the defendants for a declaration that they areentitled to a share in the well and right of way and water course as shown inthe sketch filed of record bearing the District Court's date stamp 6.8.71. On28.9.73 when this case was taken up for trial it was admitted that the plain-tiffs were entitled to a share of the well and right of way and water coursefrom the well. The right of water course is the rural (or rustic) servitude ofaquae ductus in Roman-Dutch Law. This is the right of leading water overanother man's property. As Hall and Kellaway say in their work on Servitudes(1942) p. 79:
"An aquaeduct usually takes the form of a furrow, although it mayconsist of concrete or metal structures such as flumes or pipe lines. If itexists in the shape of an open furrow the dominant owner may substitutea pipe for the water course provided he does not prejudice the servientowner by doing so".
The right of water course includes in our view the right to draw the wateralong a pipe-line. In the circumstances of this case no prejudice will be causedto the servient tenement by the use of a pipe-line.
The plaintiffs seek a permanent injunction restraining the defendants,their servants, heirs, agents and dependants from closing the entrance leadingto this well, which is shown as "X" in the sketch. On the basis of the plain-tiffs' entitlement to the share in the well, right of way and water course theplaintiffs' prayer has been rightly granted. The plaintiffs are entitled to sharesin the well and a right of way and water course as claimed and are entitledto use these rights without let or hindrance and all obstructions including theobstruction at "X" in the sketch should be removed. This appeal is dismissedwith costs.
H. DE ALWIS, J.
o
I agree
Appeal dismissed