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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V13) 1 CLR 96
1928 March 27
[BELCHER, C.J., SERTSIOS, J., FUAD, J.]
PANAYIOTI PETRI
v.
1. STYLIANI PETRI CHRISTODOULOU
2. COSTI IOANNI STYLIANOU.
RIGHT OF WAY-ARAZI MIRIE-MEJELLÉ, ARTICLES 1224, 1660, 1663, 166, 1219, 1223, 1675 AND 1202-LAND CODE, ARTICLES 13, 20, 78 AND 102-AB ANTIQUO RIGHT-PRESCRIPTIVE RIGHT-BLIND ALLEY.
Appeal by plaintiff from the judgment of a District Court dismissing the action.
Triantafyllides for appellant.
Kyriakides for respondents.
The facts are sufficiently disclosed in the judgments of the Court.
By a majority the Court allowed the appeal.
Judgment. THE CHIEF JUSTICE: The plaintiff brought in the District Court of Limassol an action against the defendants for an order restraining their trespass in passing through the field of the plaintiff; the defendants admitted the. facts and pleaded that they had acquired a prescriptive right to pass through the field, on foot or with laden animals. The District Court found that the defendants had exercised the right of passage as claimed for 24 years, as an easement in connection with another piece of land belonging to themselves. From this, in the absenceof proof to the contrary, the District Court assumed the existence of an abantiquo right to the right of way claimed, and gave judgment for the defendants, from which the plaintiff appeal to this Court.
I understand the arguments, as the case for the defendants is put before us, in two ways: (a) either an ab antique right has been proved which is protected under Article 1224 of the Mejellé and Article 13 of the Land Code, or (b) in any case the plaintiff's right of action was extinguished after ten years, by reason of Articles 1660 et seq. of the Mejellé coupled with Article 20 of the Land Code.
"Abantiquo" appears to be the current translation of Qadim, the Turkish word used in Tyser's translation of Article 166 of the Mejellé, and there defined as "that, the beginning of which no one knows." The Greek equivalent is doubtless as the learned Judge in the Court below gives it αρχαίον i.e., antique; "time immemorial" being the usual English legal phrase to represent the same idea. I do not propose to lay down any proposition as to the minimum lapse of time which can be regarded as time immemorial in this connection; but the burden of proof must be on the person alleging the antiquity of the right he claims to exercise, and if the latter means what Article 166 says it does, i.e., what Article 1224 contemplates, then I am prepared to hold that user for 24 years is neither in itself user from time immemorial nor does it raise a presumption of the same state of things having existed since time immemorial.
Secondly, the defendants says the plaintiff lost his right of action after ten years, because, it is said by Articles 1660 to 1663 of the Mejellé, but it seems to me that, if at all, it must be under Article 20 of the Land Code-he has not brought it within ten, or even fifteen years if that is the period, of the original trespass. This argument involves some confusion of thought and involves a begging of the question at issue. For it is clear from Article 13 of the Land Code that each separate act of trespass must give rise to a separate cause of action unless the cumulative effect of the trespasses has resulted in the creation, as from a particular date, of a right in the defendant of such a nature as to have brought it about, that as from that date the acts which were theretofore trespasses became thenceforth mere exercises of a right. And whether or not that right has been acquired is the whole question in this case.
I do not find anything in Chapter 2 of Book XIV. of the Mejellé (which contains Articles 1660-1662) which deals with the creation of substantive rights; the book is wholly concerned with actions and the limitation ofactions, and there is nothing whatever in it to prevent plaintiff bringing to-day an action for any act of trespass committed within the period of limitation, though no doubt he is barred in respect of acts which were done before the period of limitation, in the particular case, a period which does not seem to be precisely laid down in any enactment.
The words "in the same way as actions for AraziMirie cannot be heard at the end of Article 1662 must be a reference to Article 20 of the Land Code, they being in this respect supplementary to each other. If either of these enactments could be said to have application in this case, it would be Article 20 of the Land Code, as this is AraziMirie; but on looking at the wording of that article it is seen that it deals with the occupation and cultivation of land, a very different thing from a series of trespasses without any purported occupation. The references to a "blind alley" or right of passage in Article 1662 of the Mejellé, which must be read with Articles 1219 to 1223, appear to refer to a cul-de-sac between houses in a town; and the existence of a restricted right of passage, which is in question in this case, is there assumed. It is hot suggested that the recent acts of the defendant are not within the period of limitation of action for trespass, whatever that may be.
In my opinion, therefore, there was no material before the Court below on which it could, find that defendant had established an abantiquo right, and short of that right being proved, there could be no answer to the plaintiff's claim based on any act of trespass within the period of limitation.
The appeal should be allowed, and judgment entered for the plaintiff as claimed, with costs here and below.
FAUD, J.: I concur.
SERTSIOS, J.: I dissent. This is an action, which was brought by the plaintiff in the District Court of Limassol, against defendants for interfering with his (plaintiff's) land by passing through it. Defendants contended that they had been gassing through the plaintiff's field for 24 years without any objection having ever been raised by the plaintiff, and, consequently, they acquired a prescriptive right so to pass through it in going to another piece of land belonging to themselves.
The Court below found as a fact that the defendants had exercised such right for 24 years, and that such period of time, in the absence of any proof to the contrary, should be considered as constituting an ababtiquo right to the alleged right of way, as an easement in respect of the defendants' field.
Article 166 of the Mejellé, however, as rightly pointed out by the learned Chief Justice in his judgment, does not seem to support the view taken by the learned Judge in the Court below, and I am not prepared to hold that user of 24 years is a user from time immemorial or that it gives rise to a presumption of the same state of things having existed from time immemorial.
The learned counsel for the defence, however, addressing the Court below, based his clients' claim entirely upon a prescriptive right under Articles 1660 and 1662 of the Mejellé and not upon an abantiquo right under Article 1224 of the Mejellé or Article 13 of the Land Code.
The learned counsel for the plaintiff, on the other hand, urged that defendants could base their claim to the easement only upon Article 1224 of the Mejellé and Article 13 of the Land Code, that is to say that they should have established an abantiquo right to the right of way claimed, and that they have failed to do so.
In my opinion Article 1224 of the Mejellé establishes a principle according to which the servitudes described therein were acquired by the exercise of a real and substantial right going back to time immemorial, and such servitudes, e.g., a right of way, remain and are preserved as have been found from time immemorial.
If for instance A. goes and erects a building on the passage which is an easement to the land of B. and B. keeps silent and for a period, say of 15 years, does not raise any objection, his right to bring an action against A. should apparently not be barred because under Article 6 of the Mejellé that which exists from time immemorial must be kept in the same state in which it was from the beginning. Such must be also the meaning of Article 13 of the Land Code.
Article 1662 of the Mejellé, however, enacts that actions concerning the right of passing along a private way, etc., in the case of AraziMirie lands, if they are given up for ten years, are not heard. The enactment obviously is not dealing with an existing easement, but it merely prevents the person through whose land a third person has been passing for the period of prescription from suing him.
It is not, therefore, a servitude within the strict meaning of the word, but it will become such in time, if "adhered to and not abandoned."
I may add that the word Tarik-khas used in Article 1662 of the Mejellé does not mean a blind alley, but it means only a private street not open to the public. See the word in Redhouse's Lexicon on page 1239.
Ali Haidar Effendi commenting upon Article 956 of the Mejellé, where the word Tarik-khas is described, says that the description given therein is not a full description. The law as to blind alleys is set out at length in Articles 1219-1223 of the Mejellé, as stated by N. Chiha in his "Traite de la proprieteimmobiliere en droit Ottoman" on page 180, where he says: "Le code civil consacre des dispositions speciales au sujet des impasses (Article 1219-1223)." Moreover, the same learned author, dealing with Section 1662 of the Mejellé, says: "Les actions relatives a des servitudes, tellesque le droit de passage, attaches a des biens-fondsMiries". So he speaks generally of a right of passage through AraziMirie land without making any specific mention of, or reference to, the expression "Tarik-khas." Moreover Article 13 of the Land Code speaks of a "Hakki-Murrure" right of passage and not of a Tank- khas. Nevertheless Article 1662 of the Mejellé applies to AraziMirie as well, and this would have been impossible, had Tarik-khas meant only "blind alley." The same author on page 602 of his work referred to above dealing with the object and scope of Article 1662 of the Mejellé in respect of actions related to servitudes, says: "Les actions relative a des servitudes tellesque le droit de passage, d'ecoulement des eauxoud'irrigation, attaches a des biens-fond Mines se prescriventegalement par dix ans. Cecasn'est pas prevu par les articles 20 et 78 du code de la proprietefonciere. Mais 1' Article 1662 (C. civil= Mejellécontient a cesujetune disposition expresse." That is to say: "Actions related to servitudes such as the right of passage, etc., which are attached to AraziMirie lands, are equally prescribed by lapse of ten years. This is not provided for by Articles 20 and 78 (dealing with prescriptive rights) of the Land Code. But Article 1662 of the Mejellé contains an express provision on this subject."
Now, as rightly argued by the learned counsel for the defence, it is well established that the Mejellé was published in bits and, at various times, the chapter dealing with "prescription" having been published last, and having in view all the preceding enactments of the Code in question I have already dealt at length with the interpretation to be placed upon Article 1224 of the Mejellé. Assuming, however, that I am wrong in so interpreting the said Article 1224, I still hold that, whatever its meaning may be, Article 1662 would, in my opinion apply, and all actions, therefore, related a right of passage through AraziMirie lands are prescribed by lapse of ten years, unless by special enactment its operation be restricted. Otherwise Article 1662 of the Mejellé would remain entirely useless and inoperative, andsuch could not have been surely the intention of the legislators. As a matter of fact, such a special enactment affecting the law as to the running of prescription is to be found in Article 1675 of Mejellé which reads:-
"No attention is paid to the lapse of time in actions about lands, the benefit from which concerns the public, like a public road, a river and a common pasture land. For instance, after someone has held and possessed for fifty years without dispute a pasture which specially belongs to a village, if the inhabitants of the village to which it belongs, claim it by action, the action is heard." (And see also Article 102 of the Land Code.)
But there exists no other provision in the law putting a restriction or limit to the operation of the provisions contained in Article 1662 of the Mejellé, quoted above.
In the circumstances, I am of the opinion that the provisions contained in Chapter II. of the Mejellé as to lapse of time seem to have been intended to be of a general application, unless enacted to the contrary, and such has been, apparently, the view of this Court in the case of EleniThemistocleous v. Demetri Haji Loiou, a preliminary issue of which has been reported in Cyprus Law Reports, No. 11, of November 13, 1913. The action in question was clearly based upon Article 7 of the Mejellé which reads:-"Damage does not become of time immemorial." The plaintiff had brought the above action to compel the defendants to close up two windows and a balcony which overlooked the plaintiff's premises. The overlooking complained of had existed for upwards of 20 years prior to the action being brought. It should be remembered that overlooking is not a simple damage, but is considered by the law (vide Article 1202 of the Mejellé) as an excessive damage. In spite, however, of the principle laid down in Article 7 of the Mejellé, that "damage does not become of time immemorial, " this Court held in the action, quoted above, that the plaintiff's right to bring the action was barred by virtue of Article 1660 of the Mejellé.
In the circumstances, I am of the opinion that this appeal should be dismissed with costs.
Appeal allowed.