preview

Reserch on Right of Way of Necessity Under the Sri Lankan Law

Better Essays

RIGHT OF WAY OF NECESSITY

INTRODUCTION

A Right of way of Necessity is granted in favour of a property over an adjoining one constituting the only means of ingress to and egress from the former property to some place with which it must of necessity have a communicating link. In the Sri Lankan context this area of the law is governed under the common law principles mean that under the Roman Dutch law concepts. The Roman Dutch law proceeded on a general maxim that there could be no block land and therefore what was called way of necessity was allowed. According to the Van Leeuwen this Right of Way of Necessity is allowed “as well for a person on foot, as with a wagon, in order to gather and carry off the fruits of the land or to drive the …show more content…

Wickramasinghe[6] followed above principal and stated that a right of way of necessity can not be granted if there is another though less convenient path along which access can be had to the public road.

In this case the plaintiff, who is the owner of the northern three pelas of a land called Diddeniya Kumbure, depicted in plan No. 1903 of 12.1.1961 and marked X in the course of the proceedings, claimed a right of way over the defendant's land along the path ABCD on two causes of action, namely by right of prescriptive user and by way of necessity. After trial the learned District Judge held that the plaintiff respondent had not prescribed to this path but granted a servitude by way of necessity. The defendant has appealed from this order.

It transpired in the course of the evidence that there is another path EF along which the plaintiff could have access to the public road. Mr. De La Motte, the surveyor who prepared the plan X, testified that the road marked EF in plan X appeared to be a well used path and that it is possible to go along this path to the abandoned brick kiln marked 2 and the well No. 3 which are situated in the plaintiff's land. The plaintiff who gave evidence stated that he had only used AB and not the path EF but he admitted under cross-examination that about 50 or 60 people use the road EF to get on to this land for the purpose of going to another well in his land which is marked No. 4 in the plan referred to earlier. He stated that

Get Access