Samarasinghe V. Chairman,Village Committee, Matara

1932 Present : Jayewardene A.J.

SAMARASINGHE v. CHAIRMAN, V. C, MATARA.

192-C. R. Matara, 14,160.

Public path-User for sixty years-Time immemorial-Via vicinalis.

Proof that a footpath has been used by the public for sixty years is sufficient to establish a user from time immemorial.

APPEAL from a judgment of the Commissioner of Requests, Matara.

H. V. Perera (with him Rajapakse), for plaintiff, appellant. Keuneman, for defendant, respondent.

May 6, 1932. JAYEWARDENE A.J.-

The plaintiff brought this action against the Chairman of the Village Committee of the Four Gravets, Matara, to have it declared that there is no public path over his land called Maswalakanatta. The defendant-respondent alleged that there existed a public road over the land in question from time immemorial and claimed a right of cartway. The third issue framed was whether there was a public cart road over the land.

The learned Commissioner held that it had not been proved that the road had been used as a cartway but that it had been used as a footpath by the public for nearly sixty years. As the period was so long, he thought he was justified in holding that the use was from time immemorial He declared that the public were entitled to a footpath three feet in width. The path was to be laid down as far as possible along the southern boundary.

A public road is either a road which has been constructed as such by the public authorities, or which has been used as a public road by people inhabiting the neighbourhood from time immemorial. No amount of use by the public is sufficient to make a road a public road where the road was made within the memory of man (Allishamy v. Arnolishamy[1 (1898) 1 Tambya 26.]). This kind of road called via vicinalis or neighbour's road is recognized , by the Roman and Roman-Dutch laws.

A via vicinalis, according to the Digest, was one which was made up of contributions of the ground of private landowners and which had existed from time immemorial . . . . " Via vicinales, quae ex agris privatorum, collatis factae sunt, quarum memoria non extat, publicarum vlarum numero sunt" (Digest XLIII. 7, 3.)

According to the Roman-Dutch law there are two kinds of public roads : the via publica and the via vicinalis. A via publica is constituted such by the authorities when declared by them to be a public road.

A via vicinalis or neighbour's road is a road either in a village or leading to a town or village which has been used by the people of the neighbourhood from time immemorial .... (Opinions of Grotius. p. 425.)

Voet classes all public unproclaimed roads under the heading of viae vicinales . . . . " ut tamen viae hac vicinales quae ex privatorum collatione sunt factae, quantum ad usum attinet, viarum publicarum numero habeantur; maxime, si constitutionis earum memoria non extet" . . ... (Voet XLIII. 7, 1.)

In Appuhamy v. Alapatha [1 (1920) 7 C. L. R. 107. ] the nature of a via vicinalis was considered . and a " devata" road which was in question was regarded as a via vicinalis.

In Fernando v. Senaratne [2 (1932) 1 Ceylon Law Weekly 199.] it was held that public roads are those which have existed from time immemorial or which from time to time have been constructed on land belonging to the Crown, or acquired for the purpose and thereafter used by the public as a means of communication, and evidence of user by the public for over a third of a century was there considered sufficient.

In Ludolph v. Wegner [3 6, S. C. 198 (South Africa).], Villiers C.J. held that where the user is proved to have continued for thirty years and upwards, the Court will in the absence of any evidence as to when and how it actually commenced, be justified in holding that it had existed from time immemorial (2 Maas-dorp 191).

The whole question of public roads in South Africa was considered in Peacock v. Hodges [ 4 (1876) 6 Buchanan 70 (S. A)] and clear

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