Reserch on Right of Way of Necessity Under the Sri Lankan Law
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 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.[1] Considering the fact that who is entitled to claim a right of way of necessity in Velupillai v. Subasinghe[2] 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[3] 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[4] the plaintiff instituted an action claiming a
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 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.[1] Considering the fact that who is entitled to claim a right of way of necessity in Velupillai v. Subasinghe[2] 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[3] 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[4] the plaintiff instituted an action claiming a