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DE SILVA et al. v. WEERASINGHE
NLR1V308
DE SILVA et al. v. WEERASINGHE.
D . C. ., Kandy, 8,482.
Right of way over a public footpath-Evidence of special injury to plaintiff.
In an action raised by the plaintiffs as owners of a certain garden for a
declaration that they are entitled to a right of way over a public footpath
(leading from their garden to a street in Kandy), which the defendant had
destroyed, and that the defendant should be ordered to reconstruct the same and
pay plaintiffs a certain sum of money as damages arising from their inability to
use the same,
Held, that such action, in the absence of an allegation that the defendant had
a land over which the footpath went, or the plaintiffs had a right of way over a
land belonging to the defendant, could not be looked upon as a claim for a
servitude on behalf of a dominant tenement, but should be treated as an action
brought by a member of the public for obstructing a public pathway, and that, in
the absence of proof of special injury to plaintiffs, such action was not
maintainable.
THE judgment of Lawrie, J., is explicit as to the facts of the case.
Dornhorst appeared for defendant appellant. Sampayo, for plaintiffs respondent.
Cur. adv. vult.
31st January, 1896.
Lawrie, J.-
The plaintiffs aver that they are the owners of Galahitiyawatta; that they have
resided in a house on that land ; that they were entitled to a right of way over
a public footpath B1 to B2, to and from their house to a street in Kandy; that
they have exercised the said right of way, and used the said public path
uninterruptedly for more than ten years.
That about two and a half years before action brought the defendant destroyed a
portion of this public path, by reason of which act of destruction the
plaintiffs, their children, and servants, with cattle, have been prevented from
Using the said public path, &c, to the injury of the plaintiffs, for which they
claim Rs. 200 damages.
Further, that the plaintiffs have suffered special damage by reason of their not
being able (1) to carry and take along the said path to the town of Kandy the
produce of the said land for sale ; (2) to take their cattle from their house
along the said path to town and back to the house ; (3) to convey and bring
manure from the town along the said path to the premises for the use of the said
land; and they asked Rs. 250 special damages. The plaintiffs asked (1) for a
declaration that they were entitled to a right of way over the said public path
; (2) for a decree that the defendant,
within a specified time to be named by
the Court, should re-construct or repair the portions of the s
