Samaraweera Et Al., V. Mohotti Et Al.,

Present : Pereira J. and Shaw J. 1914.

SAMARAWEERA el al. v. MOHOTTI et al.

414-D. C. Matara, 6,097.

Encroachment by a person in the course of erection of a building-Right of party building on another's land to retain encroachment on paying compensation.

In the case of an encroachment by a person in the course of the of a building on the land of his neighbour, there is no authority in the Roman-Dutch law to support an order permitting the offending party to retain the encroachment, paying compensation therefor. It is usual in South Africa to give the offending party the option of buying the portion of land encroached upon, paying the aggrieved party an adequate price for it, and damages. This course may in suitable cases be adopted with advantage in Ceylon.

THE facts are set out in the judgment of the District Judge (J. C. W. Rock, Esq.):-

The defendant purchased on two deeds (D 1 and D 2) from first plaintiff and his late mother-in-law (deceased, third plaintiff) a piece of land 58 feet long by 40 feet broad, shown as C in Mr Perera's plan dated March 14, 1914, with four boutiques standing thereon.

Defendant polled down these boutiques and built on the site a substantial two-storied building. The cause of action is two-fold: first, that defendant in building encroached on plaintiffs' land to the north and south by the manner in which the caves were constructed (these are the encroachments D, E, F, G); and secondly, that he without permission filled up the space A at the back of the new building. The defendant also caused rain water to fall from his drain pipes or gutters on to plaintiffs' land; but this matter has beta remedied, and plaintiffs do not press for damages on this account.

After the first survey defendant got a second survey made by Mr. Roosmalecocq on September 21, 1914, and after that shifted his ground. There he claims the ground which was specially disclaimed by him in paragraph 4 of his answer. He also claims part of the ground covered by boutique No. 4 in Mr. Perera's plan. Bat this is clearly an afterthought, and represents an utterly false claim. No. 4 is the cadjan building in which the oven actually stands, 8 is the part where sales are conducted. Because the deeds give the oven as the boundary, he now claims the extra ground; but what the deed means is that the southern boundary is the ground where it stands, and his limits are clearly defined by the extent (58 by 40 feet) which was sold to him. The most remarkable feature is the accuracy shown by the carpenters or masons (who knew their business) in measuring out the grounds. The roof over the oven clearly indicates what ground is covered by the oven-that goes right up to the wall of C. This roof is necessary in order to protect the oven from inclement weather. It would be useless if it stopped at the point indicated by the defendant, who is in respect of this claim clearly proved to be lying.

The long and short of it is that defendant having purchased a piece of ground of a certain extent, built his foundations exactly up to the utmost limit of the space he had purchased, with the result that his eaves project over plaintiffs' land . . . . . . . . . . . . .

On the eastern side the defendant has encroached by the building of steps and by means of sunshades. This slight encroachment seems to be necessary to the defendant for the appearance and finish of his building. The filling up of earth at H is also necessary as a protection from wet weather and damp.

The questions to be decided now are:-

(1) What are the extent of the encroachments ?

(2) Whether they were acquiesced in or not ?

(3) How far defendant is liable in damages ?

(4) What other remedy is applicable ?

I hold (issue 1) that by means of the eaves at D, E, F, G, defendant has encroached to the extent of 1 foot, and to a similar extent by the steps at the back of the house. I will deal with this en

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