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PEDRIS et al. v. BATCHA et al.
NLR26V89
Present: Jayewardene and Garvin A. JJ.
PEDRIS et al. v. BATCHA et al.
439-D. C. Colombo, 2,388.
Excavation by adjoining landowner-flight to lateral support-Buildings -Prescriptions-Housing Ordinance, No. 19 of 1915-English law-Roman-Dutch law.
Plaintiff and defendant were adjoining landowners. The most reasonable use to which plaintiff's land could be put was for buildings on it. The defendant dug up his land to a depth of 15 feet up to and along plaintiff's boundary. The plaintiff alleged that his land had become unfit to support a building if put up within 7 feet of his boundary and claimed damages.
Held, that plaintiff was not entitled to damages.
APPEAL from a judgment of the Additional District Judge, Colombo (W. S. de Saram, Esq.): -
The facts are set out in the judgment of Jayewardene A. J.
Hayley (with him L. H. de Alwis); for appellants.-The District Judge has found that the first defendant, respondent, as lessee under the second and third defendants, respondents, has deprived the appellant's land of lateral support, but he has held that the respondents are not liable in damages, following the English law as laid down in Dalton v. Angus 1 and Bonomi v. Backhouse.2 Although this point has not been decided by any previous decision of this Court, it is the Roman-Dutch law principles that are applicable to the present case. The natural use to which the appellant's land can be put is to build on it. An adjoining neighbour has no right to excavate his land in such a manner as to deprive his adjoining landowner of the natural use of his land. The English law grants a remedy only after actual damage has been caused to the land of the adjoining owner, but under the Roman-Dutch law a cause of action arises as soon as the excavation is made. Under the Roman-Dutch law the right of lateral support extends to the support of the neighbour's land burdened with buildings, which under the English law is treated as an easement acquirable only by grant or prescription. Counsel cited Nathan, vol. I., section 704; London and South African Exploration Co. v. Rouliot 3; Voet 10, 1, 12; Maasdorp Institutes of Cape Law, vol. II., p. 98, and Johannesberg Board of Executors and Trust Co. v. Victoria Buildings.4
Samarawickrema, for first defendant, respondent.-The principles of English law are applicable in the present case. See Weerasiri v. Sanchihamy.5 It was held in that case that the plaintiff had not
Foot notes
1 (1881) 6 A. C. 740. 3 8 S.C. 74.
2 9. H. L. C. 503. 4 1 Off Rapp. 49.
5 (1892) 2 S. C. R., 96.
proved that he had acquired a right to lateral support by prescription. Voet 10, 1, 12 does not contain any general principles. He merely shows that according to the Roman law certain distances should be kept between buildings and neighbouring boundaries according to particular local regulations. Nathan, vol. /., section 704, is not an authority for the proposition that the right to lateral support attaches to buildings. It is doubtful if this right is recognized even in South Africa. The maxim Sic uteri too, & c, applies to a case like this, and a landowner may lawfully dig upon his own ground to any depth, provided he causes no damage to his neighbour's land. Under the local Housing of People and Improvement of Towns Ordinance, No. 19 of 1915, in cases like this, it is required that an open space of 71/2 feet at least should intervene between a building and an abutting wall. The experts called in this case have given evidence to the effect that the appellant could safely put up a building within 7 feet of his boundary. Counsel also cited West Leigh Colliery Co. v. Tunnicliffe and Hampson, Ltd [1 (1908) A. C. 27.].; 10 Halsbury, section 310; and 11 Halsbury, sections 319 and 325.
M. B. A. Cader, for second and third defendants, respondents.- In any case, the lessors are not liable. They are not joint tort feasors. A lessee is not the age
