1935   Present  :  Koch J. and Soertsz A.J.

DIAS v. FERNANDO.

 175-D. C. Kalutara, 16,938.

Servitude-Right of cartway-Deviation of route by agreement-No notarial instrument-Validity.

Where a person acquired a right of way over another's land and a deviation of the route was effected by a mutual agreement, which was not notarially attested,-

Held, that the servitude attached to the new route.

APPEAL from a judgment of the District Judge of Kalutara.

H. V. Perera (with him Ranawake and Kurukulasooriya), for defendant, appellant.

M. T. de S. Amarasekera (with him N. E. Weerasooria), for plaintiff, respondent.

September 30, 1935. KOCH J.-

The appeal is by the defendant from a judgment of the District Judge, which declared the plaintiff entitled to a right of cartway from her land over the defendant's land to a main road.

It is clear, and the learned District Judge has found, that a cartway was used by the plaintiff over the defendant's land for a considerable number of years, leading from the plaintiff's land to a point which presently is occupied by " steps " abutting the main road. About seven or eight years prior to 1934 when the trial took place, the crest of a hill in the cartroad at this spot was shaved down by the road authorities, thus lowering the level of the main road, and in consequence by agreement the path was deviated to a point somewhat to the east of the " steps" marked X on the plan filed in the case. The right of way now claimed is the old cartway with the difference caused by this deviation.

It is argued firstly that as the deviation took place only four or five years before the institution of these proceedings, viz., June, 1931, and was the result of only an oral agreement, the plaintiff is not entitled to the use of the new cartway as sufficient time for prescription has not elapsed. The point is pressed on the ground that a right of way is immovable in its nature and has been so recognized by law and cannot be validly acquired except by a notarial instrument or prescription.

I think it can be conceded that in the absence of a grant of a servitude of a right of way in general or specific terms over another's land, the right can only be acquired by prescription by user over a definite track. In this case such a right of way has clearly been acquired along a defined path and was in force up to about seven or eight years ago, this path being the old track up to the " steps ".

Has the plaintiff's right to this servitude been lost by reason of the deviation ? This will depend on what precisely is the plaintiff's right to a servitude of this nature, and whether there has been an abandonment of that right at the time of the deviation.

I think I would be correct in saying that if such a right is immovable in its nature and definitely confined to and incorporated in a particular track that had been used up to that date, the right to use a new path that came into being by a process of deviation can only be legally acquired by notarial instrument of ten years's prescription.

On the other hand, if the servitude is essentially an incorporeal right over a servient tenement and the particular route affects only the manner of its exercise and this incorporeal right is not immovable in its nature, a deviation in the particular route by an arrangement between the parties does not affect such incorporeal right, which will continue to exist and can be exercised over the substituted track without the necessity of a notarial instrument.

The opinion of Sir Thomas de Sampayo in Costa v. Livera [1 16 N. L. R. 26.] is in favour of the latter view. He has seen no reason to alter that opinion in his observations in the case of Kandaiah v. Seenitamby [217 N. L. R. 29.].

If the views expressed by this Court in Karunaratne v. Gabriel Appuhamy[1 15 N. L. R. 257.], Fernando v. Fernando [2 31 N. L. R. 126.] Madanayake v. Thimotheus [3 3 C. L. R. 82.], Andris