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PEIRIS v. INHABITANTS OF VILLAGE COMMITTEE PALUWA PERUWA
NLR40V54
1938 Present:
Keuneman J.
PEIRIS v. INHABITANTS OF VILLAGE COMMITTEE,
PALUWA PERUWA.
166-C. R. Gampaha, 7,186.
Via vicinalis-Unproclaimed
public road-Immemorial user-Roman-Dutch law.
In Ceylon a via vicinalis may be acquired by immemorial user.
A via vicinalis is an unproclaimed public road and no terminus
ad quern. Is necessary to constitute such a road.
Fernando v. Seneratne (33 N. L. R. 346); Samarasinghe v. Chairman, V.
C, Matara (34 N. L. R. 39) referred to.
THE
plaintiff sued the defendants for a declaration that the latter X were not
entitled to a cattle-track across the plaintiff's land. The defendants in their
answer alleged that by immemorial user they were entitled to a public path and
cattle-track across the land.
The Commissioner of Requests dismissed the plaintiff's action and declared the
defendants entitled to the cattle-track claimed by them.
F. A. Hayley, K. C. (with him Cyril E. S. Perera), for plaintiff,
appellant. -The evidence is such as to establish nothing more than a right of
footpath which is conceded. User as a cattle-track is not proved. No witness has
been called who drove his cattle across the land in question. Vague and indirect
evidence that cattle had been driven along the track
is insufficient to establish a
public right as against the owner of the land. The user must be shown to be
adverse and as of right, not permissive. In any event this being a right of way
claimed on behalf of the public it must be shown the cartway led from one public
highway to another. The evidence seems to indicate that here is nothing more
than a cul-de-sac and that the terminus and quern is nothing more than some
fields belonging to private parties. In such a case no public right can be
established by evidence of user, with nothing more by the public.
Attorney-General v. Antrobus (the Stonehenge case)
1 and
Whitehouse v. Hugh 2.
See in this connection Attorney-General v. Sewell
3.
- The something more which is necessary to. be shown would be, for instance,
evidence of dedication to the public or evidence of maintenance by a public
body. In the absence of such evidence no public right can here be said to have
been established.
N. Nadarajah (with him G. E. Chitty), for defendants,
respondents.-It is clear upon the evidence that the inhabitants of the village
have used this track as a cartway for a period beyond living memory. It is not
necessary to show that the whole world used it. We have here a clear example of
what was known to the Roman-Dutch law as a via vicinalis or neighbours'
road, even if it were held not proved to be a via publica proper. The
distinction however has not been meticulously drawn by our Courts and a via
vicinalis may be prescribed to in our law, by the inhabitants of a
village. See Maasdorp's Institutes of South African Law (5th ed.), vol. 111.,
pp. 207 and 212, and the cases of Fernando v. Senaratne and Samerasinghe
v. Chairman, Village Committee, Matara. It is an inconsistent position while
conceding a' right of public footpath to deny a cattle-track on the mere ground
that both termini are not public highways. That objection if valid should apply
to both cases, but it is submitted that a via vicinalis may be
established, as here, even despite such an objection. The evidence shows that
the witnesses, some of whom are very old inhabitants of the village, speak to
the existence of the cattle-track and its user as such for a period as far back
as they can remember.
F. A. Hayley, K. C., in reply. -
Cur. adv. vult.
March 17, 1938. KEUNEMAN J. -
The plaintiff sued the defendants for a declaration that the defendants were not
entitled to a cattle-track across the plaintiff's land Milagahawatta. The
defendants in their answer alleged that by immemorial user they were entitled to
a public path across the land in question for passing and repassing on foot and
for le
