Kandaiah V. Seenitamby Et Al.

Present. De Sampayo A. J.

KANDAIAH v. SEENITAMBY et al.

382-C. R. Batticaloa., 17, 909.

Right of way-Prescription-Evidence of user of a defined track necessary.

Obiter, the evidence to establish a prescriptive servitude of way must be precise and definite. It must relate to a defined track, and must not consist of proof of mere straying across an open land at any point which is at the moment most convenient.

THE facts appear from the judgment.

A. St. V. Jayewardene, for the plaintiff, appellant. -The. Commissioner has held that plaintiffs had for over ten years passed over defendant's land; the plaintiffs have therefore acquired a right of way over defendant's land. (Voet (8, 3, 8) states that even where no particular path has been used, the owner of the servitude is entitled to claim a right of way over the servient tenement. It was held in Costa v. Livera1 that the essence of a servitude is a right of way over the servient tenement, and. that the particular route affects only the manner of its exercise.

Bartholomeusz, for the first defendant, respondent. -The plaintiffs' claim as stated in the plaint is for a defined track. In C.

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