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 cattle to and from it”. But the word of “necessity” is strictly interpreted in the law, due to protect the ownerships rights. So the person who claimed the Right of Way of Necessity only can be gain if he proved that he has actual necessity for the right of way. In a claim for a right of way of necessity the onus of proving the necessity is upon the person alleging it. Considering the fact that who is entitled to claim a right of way of necessity in Velupillai v. Subasinghe case Basnayake C.J. aware the passage of Voet and come in to a view that a person who is entitled to claim a way of necessity is the person who is the owner of that property. That means the person who owns the dominant tenement.
GOVERNING PRINCIPLE FOR RIGHT OF WAY OF NECESSITY.
The governing principle is that a right of way of necessity can be claimed no further than the actual necessity of the case demands. In the leading South African case of Peacock v. Hodges gave the effect to this principle. After that this rule was adopted to each and every case where the right of way of necessity claims. Actual necessity is a question of fact which should be decided case by case.
In Amarasuriya v. S.I. Perera the plaintiff instituted an action claiming a right of cart-way of necessity over the land of the defendants. The cart-way claimed is 10 feet wide and nearly 75 yards long. The plaintiff bases his claim on two grounds :- (1) that he lives in a house on the land and that he owns a car purchased in 1930 and (2) that it is necessary to employ carts to take the produce of the land.
According to the evidence the plaintiff bought this land less than 4 years before the institution of this action. It was a bare land at the time. He put up a house about 3 years after his purchase and lived there with his wife for about 4 months and then the wife went to live at Moratuwa. The plaintiff does not say in his evidence that he continued to live in the house after his wife went to Moratuwa. The evidence for the defendant is that the plaintiff is not living now on the land. In any event the plaintiff is a Government Servant and it is not unlikely that he will be transferred within a few years from this station to another station. The plaintiff did not construct a garage for his car on this land. He built a garage on an adjoining land of which his mother is said to own an undivided share. The plaintiff himself admits that there was no cart road to the land before his purchase. The evidence does not show any good reason why the plaintiff should not walk to the garage on the adjoining land and drive the car from there.
Based on that evidence Wijeyewardene J. decided that there is no actual necessity to grant the right of cart way by necessity to the Plaintiff Respondent.
IF THERE IS AN ALTERNATIVE ROUTE
The applicable principle as formulated in the South African case of Lentz v. Mullin is that if the person claiming the right of way “has an alternative route to the one claimed, although such route may be less convenient and involve a longer and more arduous journey, so long as the existing road gives him reasonable access to a public road, he must be content and can not insist upon a more direct approach...