Amarasuriya V. Ramanathan Chettiar

1938 Present: Maartensz and Hearne JJ.

AMARASURIYA v. RAMANATHAN CHETTIAR.

167-D. C. Galle, 35,662.

 Servitude-Right of cart way-Dominant and servient tenements not adjacent-Right to claim servitude.

Where the plaintiff claimed the servitude of a cart way over the defendant's land which was separated from plaintiff's land by an intervening field over which the plaintiff had only a right of footway.

Held, that the plaintiff was not entitled to claim the servitude of a cart way unless he was entitled to a similar servitude over the intervening land.

APPEAL from a judgment of the District Judge of Galle.

Plaintiff as owner of a land called Amukotukande asked for a declaration of title to a right of cart way over Sindamani estate belonging to the defendant.

Between the plaintiff's land and defendant's estate there was an intervening field over which the plaintiff had only a right of footway.

The defendant admitted that plaintiff was entitled to a right of footway but denied that he had acquired a right to use it for vehicles.
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The learned District Judge held that the plaintiff had used the road as a cart way for over ten years and gave judgment for the plaintiff.

H. V. Perera, K. C. ( with him E. B. Wikramanayake, Curtis, and Renganathan ), for defendant, appellant. -Where the dominant tenement does not adjoin the servient tenement a right of cart way cannot be acquired by prescription unless the intervening land is subject to the same servitude. Voet, VIII. 4. 19. The illustrations given by Voet make that clear. By the same servitude Voet means a servitude of the same kind. It is true that Maasdorp says some servitude is sufficient. Maasdorp, bk. II. p. 168. But Maasdorp is dealing with servitudes generally. What the plaintiff claims in this case is to take a cart . from the high road over the defendant's land to its boundary and take it back to the road again. This is not a right of way which can be said to appertain to his land. The evidence also is quite insufficient to establish the acquisition of a right of way by prescription.

Hayley, K. C. (with him N. E. Weerasooria, L. A. Rajapaksa, G. P. J. Kurukulasuriya, and J. R. Jayawardana), for plaintiff, respondent. - Although the dominant and servient tenements do not adjoin each other a right of cart way can be acquired by prescription, if the intervening

property is subject to some servitude, and need not be the identical servitude. It is sufficient if some servitude which brings the servient tenement into touch or communication with the dominant tenement is established. Maasdorp (Institutes of Cape Law, bk. II., p. 168).

Cur. adv. vult.

March 17, 1938. MAARTENSZ J. -

This is an appeal from a decree of the District Court of Galle declaring the plaintiff, as owner of a land called Amukotukande, entitled to a right of cart way over Sindamani estate belonging to the defendant along the route A, B, C, D in plan X.

Amukotukande is to the north of Sindamani estate (hereafter referred to as ?the estate?) but does not adjoin it. Over the intervening parcels of land which do not belong to the defendant there is only a footpath. The cart road commences at the northern boundary of the estate and joins the Galle-Akuressa high road on the south. The cart road is marked (reading from the north) A, B, C, D.

The plaintiff's case is that he had acquired by adverse user for over ten years a right of cart way from the main road to the point A, and a right of footway from A to Amukotukande, and that the defendant had since January 25, 1937, obstructed the cart road at the points A, B, and C in sketch P 1.

The defendant admitted that the plaintiff was entitled to use the cart road as a footway but denied that he had acquired a title to use it for vehicles. It was admitted that plaintiff had occasionally driven his car only along the road, but that user was said to have been permis

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