SAIBO v. JAMES APPU et al.

SAIBO v. JAMES APPU et al.

C. R., Matara, 887.

Adjoining house owners-Overhanging eaves of plaintiff's roof-Right of defendants to have it cut off-Long use of eaves by plaintiff over defendants' land- Condition on which defendants' right to cut off plaintiff's eaves may be exercised.

    Where the defendants built a house adjoining the plaintiff's by fixing their beam and wall plates at the end of the eaves of the plaintiff's which overhung the defendants' land, and afterwards, desiring to build a taller house, notified to the plaintiff that they would remove his eaves-

    Held, that the plaintiff was bound to remove the overhanging eaves, notwithstanding that they have existed in that position for thirty years, and that if the defendants build a house on their own land they should so finish and roof their houses that the plaintiff's wall would not suffer in consequence of the removal of the eaves.

    THIS was an action for restraining the defendants, who were owners of a house adjoining the plaintiff's house, from cutting and removing the eaves of the plaintiff's house and raising the eastern wall thereof as a common wall for defendants' purposes.

    The Commissioner, Mr. H. W. Brodhurst, found as follows:-

    " The plaintiff's house was built, with the present eaves, at least thirty years ago. The plaintiff bought it in 1884.

    " Soon afterwards the defendants bought the adjoining land, over which plaintiff's eaves projected. They built a house adjoining plaintiff's house, and they fixed their ridge beam and wall plates on to the plaintiff's ridge beam and wall plates at the end of plaintiff's eaves. The plaintiff's eaves therefore projected about three feet over defendant's house and formed a part of their roof.

    " The defendants occupied their house for some twelve years, and they pulled it down about three years ago. When they did so they removed their roof, leaving plaintiff's eaves intact.

    " They now wish to build a larger house with a roof higher than plaintiff's roof, and as their wall touches plaintiff's wall they

cannot raise it to the required height without removing plaintiff's eaves. Plaintiff brings this action to prevent his eaves from being removed.

    " It is contended for defendants that, as they had the use of plaintiff's eaves for some twelve years, they acquired a title to them by prescription, and therefore have a right to remove them. It seems to me that, even if they acquired a prescriptive right the defendants cannot now claim the eaves, because they gave up the possession of them three years ago.

    "But I think it is clear that, if defendants acquired any prescriptive title at all, it was only a right to the joint use of the eaves with plaintiff. I cannot uphold the argument that plaintiff lost his rights by allowing the defendants to use his eaves. The eaves remained attached to plaintiff's house, and continued to perform their function of protecting plaintiff's wall. The fact that the eaves also protected defendants' house in no way ousts plaintiff from the possession of the eaves.

    "It is clear that defendants recognized this fact when they removed their house but did not remove plaintiff's eaves.

    " I am certainly of opinion that defendants have not acquired any title to plaintiff's eaves independent of and adverse to the plaintiff, and as they have had no possession for three years I doubt if they could now even claim the right to use the eaves jointly with plaintiff. I consider that defendants have no right to remove plaintiff's eaves, and that if they wish to build a wall higher than plaintiff's roof they must either build it beyond his eaves, or pay him any compensation that he may demand for the loss of his eaves.

    " The evidence shows that defendants have removed the tiles from plaintiff's eaves and cut some of his roof timber. It would probably cost about Rs. 20 to repair

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