1912 Present: De Sampayo A.J.

COSTA v. LIVERA.

C. R. Negombo, 18,621.

Servitude-Substitution of a new right of way for an old one-Non-notarial agreement-Benefit of possession of old route attaches to-new routs-Owner of the dominant tenement must be restricted to the new route.

The plaintiff claimed a right of way along the line marked. d d. The defendant averred that the parties had by mutual consent (without a notarial deed) substituted a new route- a a for the old route d d. The new route crossed the old route at the point at which the plaintiff alleged that defendant had obstructed d d.

Held, that if the plaintiff had definitely abandoned the route d d, he must be restricted to the new route a. a.

" Ordinance No. 7 of 1840 will not be in the way of such restriction, even if the user of the new line a a has not been long enough to give plaintiff a new right by prescription."

The essence of the servitude is the right of way over the servient tenement, and the particular route affects only the manner of its-exercise. What is prescribed for by long user is not the ground over which the way lies, but the incorporeal right of servitude. The benefit of the possession of the old route would attach to the new route.

THE facts appear sufficiently from the judgment.

A. St. V. Jayewardene, for the plaintiff, appellant.-When the defendant obstructed the new route, the plaintiff acquired the right to use the old route. (Payne v. Shedden 1[ M. & R. 382.]) In Fernando v. Mendis there was a total abandonment of a servitude. Here there was only a substitution of one right of way for another. Fernando v. Mendis 2[(1911) 14 N. L. R. 101.] does not therefore apply to the facts of this case.

Jayatileke, for the defendant, respondent.-It is clear that the old route was abandoned and a new route substituted about four years ago. The plaintiff cannot now seek to get a declaration of right over the old route. Fernando v. Mendis 2[] is a clear authority on that point. The benefit of the possession of the old route would attach to the new route. The plaintiff should have asked for a declaration of his right over the new route. Payne v. Shedden 1[ M. & R. 382.] does

not hold that where the substituted route is obstructed the owner of the dominant tenement is entitled to the old route.

A. St. V. Jayewardene, in reply.

Cur. adv. vult.

July 29, 1912. DE SAMPAYO A.J.-

The plaintiff brings this action for obstruction of a right of way which he claimed over the defendant's land. The way claimed is along the line marked d ,...d in the plan filed in the case. That plaintiff has a right of way is not denied, but the defendant disputes the plaintiff's present claim to use the route d d for the reason that the parties had by mutual consent substituted a new route marked a a in the plan for the old route d d. The contention for the defendant is that the plaintiff has lost the servitude of way over the line d d by abandonment or release. That a servitude is extinguished by abandonment is, of course, indisputable. In Fernando v. Mendis,1[(1912) 14 N. L. R. 101.] which is relied on, the servitude was a right to draw water from a particular well, but that decision is no authority for the present contention. Abandonment or release is a question of fact in each case; and the point in this case is whether the mere fact of a new line of way being adopted in lieu of the old line is proof of abandonment of the  servitude of way over the defendant's land along the old line. Without more evidence I cannot say it is. There was no evidence gone into at the trial, but the Court decided more or less as an abstract question of law on the mere admission '' that plaintiff by agreement used the line a a instead of d d. As regards the law, as I have said, the decision I have above referred to does not quite apply. There is not much direct authority that I can discover applicable to the point. Voet 8, 3, 8, says that