Municipal Council Of Colombo. V. Hewavitaeana

Present : Mr. Justice Wood Renton and
Mr. Justice Grenier.    July 18 1910

THE MUNICIPAL COUNCIL OF COLOMBO v.
HEWAVITAEANA et al.

D. C, Colombo, 23,830.

Public road-Adverse possession by private individual-Prescription.

Under the Roman-Dutch Law prescription runs even against the public at large, so as to deprive it of portions of the land forming a public road, for, though the public cannot by mere non-use lose its right to a public road, it does not follow that the right may not be lost by adverse user.

THE facts are set out in the judgment of Wood Renton J.

De Sampayo, K.C., for the appellant.-The portion in dispute was once part of a street. Section 3 of Ordinance No. 17 of 1865 defines "street" as "any road, street, &c, whether a thoroughfare or not." The rights of the public to a street are not confined to the metal portion, but extend to the whole space between the fences {Harvey v. Truro Rural District Council J). The rule of law is: " Once a street, always a street." A street cannot cease to be a street by any act on the part of private persons. The public have as much inalienable rights over the highways as they have over rivers, the seashore, &c. The rights which the public have over a highway are not forfeited by non-user (Voet 431, 11,7). The passage in Voet 13, 7, 7, (2 Maasdorp, 82 and 83) would not appear to apply to public roads, but to rights of way which the public have over private property; for Voet says that things belonging to the public, which are used for ornament of the town, pleasure, &c, may not be prescribed against. A fortiori highways could not be acquired by prescription. The highways only vest in the Council for the purpose of maintenance, &c; the dominium apparently remains with the Crown or with the public.

The following cases were referred to at the argument: Turner v. Ringwood Highway Board; 2 Belmore (Countess of) v. Kent County Council;3 D. C, Colombo, 1,215; Vand. D. C. 83; Rajakariar v. Provincial Road Committee, 'Jaffna;4 Queen v. Cowasjee Eduljee.5
Baiva, for the respondents, not called upon.

Cur. adv. vult.

Foot Notes:

1 (1903) 2 Ch. 638.
2 (1870) L. R. 9 Eq. 418.
3 (1910) 3 Ch 873
4 (1907) 11 N. L. R. 41 ; 4 Bal. 4.
5 Ram. 1843-55, 105.

July 18, 1910. WOOD RENTON J.-

On the facts this appeal is devoid of merits, although its short- comings are somewhat redeemed by the able and learned argument which Mr. de Sampayo succeeded in constructing in support of it. The appellant the Municipal Council of Colombo, seeks to vindicate title to a strip of land in the Pettah, said to be a few perches in extent, valued at Rs. 562, and proved by an ample body of reliable evidence to have been regarded and treated as private property for about half a century. The Municipal Council alleges that the strip of land in suit is part of Prince street, and as such is vested in it, in virtue of the provisions of section 87 of Ordinance No. 17 of 1865, which is reproduced in section 73 of Ordinance No. 7 of 1887; that on October 12, 1904, the testator of the defendants-respondents unlawfully encroached upon the land and took unlawful possession of it; and that on or about August 14, 1905, he began to dig foundations and to erect a building, now nearly completed, upon it. The respondents in their answer denied that this strip of land is, or ever has been, a part of Prince street, or that the respondents' testator had unlawfully encroached upon it. They admitted that he had dug foundations in the land for the purpose of building, and that he had in fact built upon it, and they alleged that the strip of land in question formed part and parcel of the premises bearing assessment Nos. 23, 1st Cross street, and 53, Prince street, to which he was entitled, and of which he was in possession. The case went to trial on two issues: (1) Is the portion of land in dispute (coloured green in plaintiff's plan A) p

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