PERERA et al. v. GUNETILLEKE et al.

PERERA et al. v. GUNETILLEKE et al.

D. C., Colombo, 8,099,

Right of way-Obstruction by act of God-Prescription-Servitude-Rights of person prevented from using path over which he has had a right of way- Using force in assertion of civil rights.

Where a pathway was obstructed by the act of God in the shape of floods, held, that an obstruction so caused did not constitute such an interruption of the user as to disentitle the party claiming the right of way to the benefits of the Prescription Ordinance.

Where a person establishes that he has used a way as of right openly and continuously for a long period and is forcibly prevented from further using it, he is entitled to an injunction to restore him to the quasi possession of the way, irrespective of whether or not he can establish the existence of a servitude.

The necessity of Courts being strict in discountenancing all attempts to use force in the assertion of civil rights pointed out.

THIS was an action for a declaration that plaintiff is entitled to a right of way for the purpose of a footpath, and also for the purpose of driving his cattle along it. The facts of the case in detail appear in the following judgment of the Chief Justice.

Wendt, for appellant.

Dornhorst and W. Pereira, for respondent.

Bonser, C.J.-

The plaintiff in this action is the owner of a piece of land, which is almost surrounded by canals. It is not directly in communication with any public road. It has the defendant's land on the west and part of the land of another person on the south. The nearest way to the public road is across the land of the defendants. The plaintiff bought this land some forty years ago, and he has a house or hut on it and a sawpit; and his case is that during the whole of the time he and his workmen have been in the habit of taking a short cut across the defendant's land in a well-defined track. He further says that he has been in the habit of letting out part of this land for grazing purposes to a milkman, and that the milkman has been in the habit of bringing his cows to, and taking them away from, the grazing ground across the defendant's land by that well-defined track. This state of things continued up to June, 1895, when he alleges that the defendant put up a fence of bamboos and thorns and obstructed the path. The defendants denied firstly that there ever was a path; and secondly, that they ever blocked up that

path. The plaintiff claims a declaration that he is entitled to this way for the purpose of a footpath and also for the purpose of driving cattle along it, and prays for an injunction.

At the trial two issues were framed. The first issue was: Has the defendant put up a fence over & private right of way, or has the fence been standing, as the defendant alleged, for twenty years and upwards ? The second issue was: Has the plaintiff a right of way?

Plaintiff proved that he and his workmen had used this path for a considerable number of years, and that his tenants, and licensees had used it for a long period for driving cattle to and from the plaintiff's land. The surveyor who surveyed the place on behalf of the plaintiff for the purposes of this action found evident traces of a well-defined path, which, however, were not found by the defendant's surveyor. The defendant swore that there never was a path, and that the so-called obstruction was a fence of long standing, but the Acting District Judge did not believe him and found for the plaintiff as to the existence and user of a path and its obstruction by the defendant. But he held that the right of way claimed by the plaintiff had not been established, because it appeared that the, pathway was occasionally obstructed, not by the act of the defendant, but by the act of God in the shape of floods. He therefore came to the conclusion that, under such circumstances, no right of way could be established, and he dismissed the plaintiff's action.

Mr. D

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