Jayasekera Hamine V. Agida Hamine

1944 Present: de Kretser J.

JAYASEKERA HAMINE, Appellant, and AGIDA HAMINE, Respondent.

65-C. R. Colombo, 87,297.

Servitude of footway-Obstruction to prevent cattle trespass-Footway includes right of use bicycle or wheelbarrow-Right to free use of way.

Where the plaintiff claimed the servitude of a footway three feet wide over the defendant's land and where the defendant pleaded that she was entitled to put up a contrivance of logs at the entrance to the path in order to protect her land from cattle.

Held, further, that the servitude of footway (iter) includes the right to have the obstruction removed.

Held, further, that the servitude of footway (iter) includes the right to use a bicycle or wheelbarrow.

APPEAL from a judgment of the Commissioner of Requests Colombo.

L. A. Rajapakse, K.C. (with him Kingsley Herath), for the plaintiff, appellant.

N. E. Weerasooria, K.C. (with him E. B. Wikremanayake), for the defendant, respondent.

Cur. adv. vult.

December 8, 1944. DE KRETSER J.-

The plaintiff brought this action on October 13, 1942, alleging that a path used by her, and on which a wheelbarrow and cycle were used, had been obstructed by the defendant on May 17, 1942, and deviated at one end to a ditch. The path was shown in an annexed sketch and later in a-plan- Defendant filed answer stating that plaintiff's right, if. any, was only one of proceeding on foot along the northern boundary and that the coconut logs of which plaintiff complained had always been in existence in order to prevent cattle trespass. The logs of which in particular plaintiff complained were two placed right on the path at each terminus of it on defendant's land. Between plaintiff's and defendant's land there is a ditch which is crossed by a footbridge made of coconut logs. Plaintiff's land is on a higher elevation. The plan shows a fence along the western boundary of defendant's land with a gap in it, each end of the gap being flanked by a coconut log standing about 3 feet from the ground, and a third log forms a triangle with these two. The same contrivance was erected at the end where the path meets the footbridge. The surveyor gave evidence and stated that the space between the stumps at the gap was 15 inches, on another side of the triangle it was 16 inches and on the third 19 inches. The ditch was spanned by 2 logs placed side by side.

At the trial which extended from March 31 to November 3, the following issues were raised: -

(1) Is the plaintiff entitled to the use of the way demonstrated in plan No. 3,436 dated March 14, 1943 ?

(2) Is plaintiff entitled to use a wheelbarrow and a bicycle along the said way?

(3) Prescriptive rights of parties.

(4) Did the defendant on or about May 17, 1942, wrongfully and un lawfully obstruct the free use of the said path?

(5) Damages.

(6) If issue No. 1 is answered in the affirmative is the plaintiff's right limited as set out in paragraph 3 of the answer?

The learned trial Judge inspected the land on July 9, and he made his order on November 3, declaring plaintiff entitled to a footway along the trace marked in the plan but with its end near the road shifted to a distance of one fathom from the drain on the north. He allowed the logs to stand and ordered that a minimum space of 16 inches should be allowed between the logs. He disallowed the right to use a bicycle or wheelbarrow.

He seems to have approached the case from the wrong point of view. It was conceded in the course of the trial that plaintiff was entitled to a footway 3 feet wide and the defence was that the contrivance of logs was one defendant was entitled to put up in order to protect the land from cattle. He has not considered the law nor has he correctly appreciated the facts. The plaintiff was entitled, and had been entitled to well over 30 years, to the free use of the footway and the obstructions necessarily restricted the right. She was, the

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