|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(V18) 1 CLR 141
1948 April 9
[GRIFFITH WILLIAMS AND MELISSAS, .JJ.]
CHRYSSANTHI DEMETRI,
Appellant,
V.
ARESTIS KLEANTHI AND ANOTHER,
Respondents.
(Civil Appeal No. 3791)
Easement-Right of passage-Ab antiquo right-"Qadim"-Mejellé, Articles 166, 1166 and 1224-Rebuttable presumption of lawful origin-Courts of Justice Law, 1935 (as amended by Law 19 of 1940), section 49 (1) (c)-English common law-Evidence Law, 1946, section 3-English law and rules of evidence-Presumption of lost grant-Period of limitationPrescriptive right.
The parties were adjoining landowners. The land of the appellant and that of the respondents originally belonged to appellant's grandfather who more than 55 years before action partitioned it among his three children. The appellant became owner of one portion by inheritance through his father, and the respondents came to own another portion as heirs of one I.K. who purchased it at auction in 1928 from one E., a cousin of appellant, with notice of the easement claimed by appellant, namely, a right of way over I.K's land. From the time of the partition the appellant's father and after his death the appellant were passing through the portion now owned by respondents without objection by respondents' predecessors in title. The respondents inherited this land in 1936, and some time after 1942 they disputed appellant's right of passage. The appellant claimed that he had an ab antiquo right of way through that land, which right had been exercised by him and his father for over 55 years. The trial Court ruled that no presumption of ab antiquo right arose from 55 years' user, and, in the absence of an agreement as provided by Article 1166 of the Mejellé, it held that the appellant had failed to prove the ab antiquo right he claimed.
Held : (i) that Article 1224 of the Mejellé created a rebuttable presumption of lawful origin which could be destroyed by proof of an unlawful origin of the easement claimed. Consequently the correct meaning of "Qadim" (=that, thebeginning of which no one knows) must be that antiquityor ancientness which obscures the origin of the right andrenders proof of its lawful origin difficult.
(ii) the rebuttable presumption of Article 1224 ought to arise from open and peaceable enjoyment over a long period, even though its commencement is ascertainable.
(iii) the trial Court was wrong in declining to draw the presumption of lawful origin of the right, from a very long, open and peaceable enjoyment, because the servient and dominant properties belonged to the same person in the distant past.
Petriv. Christodoulou(1928), 13 C.L.R. 96, and Shemmediv.
Shemmedi (1940), 16 C.L.R. 85, distinguished.
Judgment of the Court below set aside and judgment entered for the appellant.
Appeal by the first defendant from a judgment of theDistrict Court of Limassol (Action No. 588/44) in favourof the plaintiffs.
Z. Rossides for the appellant.
N. G. Chryssafinsfor the respondents.
The facts appear sufficiently fromthe judgments :
GRIFFITH WILLIAMS, J.:This appeal is from a judgmentof the District Court of Limassol in an action betweenadjoining landowners. In the action therespondents(plaintiffs in the Court below) obtained an injunctionagainst the appellant restraining him from interferingwith the respondent's vineyard by passing through it.The appellant claimed that he had an ab antiquo rightof way through that land, which right had been exercisedby him and his father for over 55 years. The DistrictCourt held that 55 years was not time immemorial, andaccordingly gave judgment for the respondent. Againstthis judgment the appellant appeals.
The facts in this case are very simple, and are undisputed.From the plans put in as exhibits, and from the evidence,it appears that the land of appellant, marked as lots64 and65, and that of the respondents marked as lots 67 and 68,was contiguous for almost its whole length North andSouth, and that the only means of access the appellanthad to his land was by the path over which he claimedhis right of way, which passed through the respondentslot 67.
The District Court found that both the land of theappellant and that of respondents had originally belonged toappellant's grandfather, Hadji Theocharis Papa Yianniwho 60 or 70 years before action owned it as one undividedproperty. Sometime before his death, which occurredabout 55 years before the action, he partitioned the propertyin 3 portions among his children. That part now shownas lots 64 and 65 he gave to his son Kleanthis, upon whosedeath it devolved on the appellant. That part of theproperty shown as lots 67 and 68 he gave to his daughterAnnettou, upon whose death it devolved on her granddaughterElpiniki, who in 1928 sold it at auction to one Ioannis Charalambous Kokkinoftas, since deceased, fromwhom the respondents have inherited it.
From the time of the partition the said Kleanthis and his son the appellant have been passing through the landoriginally given to Annettou, particularly lot 67, to getto or from their land, lots 64 and 65. Nor was any objection ever raised to their passage through lot 67, at any rate before the year, 1942.
The District Court held as a fact that when Kokkinoftas bought plots67 and 68, at the private auction in 1928, he was fully aware of the appellant's claim to a right of way overhisland and that during his lifetime he never questioned the appellant's right.
In deciding the question of whether the appellant had established his claimto a right of way the learned D.J. referred to the two local cases, Panayioti Petriv. Styliani Petri Christodoulou and another, C.L.R. XIII, p. 96, and Kiani Osman Shemmediv. Mehmed Osman Shemmedi, C.L.R. XVI, p. 85. The former case was heard in 1928 and the latter in 1940. It had been argued before him for the appellant that the latter case overruled the former, and established the English principle of the presumption of a lost grant arising after 20 years' uninterrupted enjoyment of a right, and that enjoyment for such a period was sufficient to establish an ab antiquo right.
The respondents relied on the judgment in the former case Petri v. Christodoulou,in which the facts were almost identical with those in the present case. In that case the Court, after considering the meaning of ab antiquo,decided that user of a right of way for 24 years was neither in itself user from time immemorial nor did it raise a presumption of the same state of things having existed from time immemorial, and that therefore no ab antiquo right was acquired.
The learned D.J. decided that Shemmedi v. Shemmedi did not overrule Petriv. Christodoulou; and in this I agree ; as the Shemmedi case, though the English doctrine of lostgrant is set out in the judgment, was not a, decision on that point. Indeed in that. judgment it is clearlystated : "in this case there can be no question of a lost grant." That case, therefore, cannot he held to be authority that the English doctrine of 20years' user establishing a. presumption of a lost grant is Law in Cyprus; and the part of the judgment referring to it must be considered as obiter. Whether in fact the doctrine does apply in Cyprus will be considered later in this judgment.
In Petri v. Christodoulou andanother facts were almostidentical with those in the present case, except as regard the length of user, which in that case, was only 24 years ; and it is on that case that the learned D.J. based his judgmentin the case before us. It is therefore ofimportance to examine carefully that decision.
At p. 97, after considering the meaning of ab antiquo, Belcher, C.J., goes on: "I do not propose tolay down any proposition as to the minimum lapse of time that 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 (Mejellé)says it does, i.e. what Article 1224 (Mejellé) 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." With this passage both the other Judges sitting were in agreement, though Sertsios, J., dissented on other grounds.
This case decided no more than that 24 years was an insufficiently long period of user to establish abantiquoright of way. Had the period of uninterrupted enjoyment been over 55 years, as in the present case, it is impossible to say what the decision of the Court would have been.
The meaning of "ab antiquo"and its Turkish equivalent "Qadim", was also considered by Belcher, C.J., in that case. The relative passage from the judgment is as follows :-
"'Ab antiquo' 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 phrase to representthe same idea."
From this passage it would appear that the learned C.J. treated "ab antique", "Qadim" and "time immemorial" as having the same meaning. If we can define all three of them as meaning when applied to rights that those rights are so ancient that no one living knows or could knowthe origin, then perhaps they can be regarded as synonymous ; but the phrase "time immemorial" has a long history, and it cannot besaid, at the present time, to have an exactly similar meaning to the Turkish "Qadim." Consequently "ab antique"may not mean quite the same inEnglish law and Turkish.
"Time immemorial", as explained in the preamble,to the Prescription Act (2 and 3 Will 4 C 71), is as follows:"time immemorial or time whereof the memory of manrunneth not to the contrary" is now by the Law of Englandin many cases considered to include and denote the wholeperiod of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyedis sometimes defeated by showing the commencement of such enjoyment. From this preamble it appears that "the memory of man" did not mean living memory, but what was known as "the time of legal memory" which was supposed to date back to 1189, the year of accession to the throne of King Richard I.
Originally by Common Law"time immemorial" meant literally"the time whereof the memory of man runneth not to the contrary", that is the time beyond living memory. But by a statute of Edward I seisin of land in a real action was required to be proved back to the first year of the reign of Richard I; and by analogy proof of "time immemorial" to confer a title to easements was required to date back to the same year. According to Blackstone: "Now'time of memory', has long ago been used and ascertained by the law to commencefrom the reign of Richard the First" "Time of memory" or "time immemorial" having acquired this meaning, it naturally followed that as the years went by, and the reign of Richard I receded ever further into the distant past, it became more and more difficult to prove title back to that remote period. Though,as regards rights to real estate, the legislature in the reign of Henry VIII (32 H. VIII) fixed a period of limitation, it did not affect any claim to a prescriptive right and long enjoyment could still be defeated by shewing that at any point of time since the commencement of legal memory the right had not existed (Hals. XI p. 295&seq.) Norfolk (Duke) v. Arbuthnot 1880 5 C.P.D. 390. 49 L.J. Q.B. 782. It was to overcome this that the Courts began to hold that from the usage of a lifetime the presumption arose that a similar usage had existed from remote antiquity. Later from a user during living memory or even twenty years, juries were told that they might, and finally were bound, to presume a lost grant or deed. (Per Cockburn, C.J., in Bryant v. Foot).
The extreme difficulty of giving proof of enjoyment for so long a period was lessened by its being held that evidence of enjoyment during a shorter time raised a presumption that such enjoyment had existed for the necessary period. Jenkinsv. Harvey1 Crompton, Meeson and Roscoe Rep. Exch. 894. Quoted in Gale on Easements 7th Edn. p. 167.
Theoretically an ancient house at this period was a house which had existed from the time of Richard I.Practically it was a. house which had been erected before the time of living memory, and the origin of which could not be proved. Per Lush, J., in Angus v. Dalton-1877L.R. 3 Q.B.D. p. 89.
It was only by the Prescription Act (2 & 3 Will IV c.71) that uninterrupted user for a long period was made indefeasible. By that Act any uninterrupted user for a period of 20 years could not be defeated by showing the beginning of the enjoyment of the right if it occurred prior to the 20 years period. If the user had continued for 40 years then the right became altogether indefeasible, unless it were proved to have been exercised by express consent or agreement in writing. The Prescription Act applied to easements such. as that in question in the present case, there were however certain rights by custom and usagewhich were not included in the Act, and to these the oldlaw still seems applicable; and they can therefore bedefeated, even though exercised for over 60 years, if it canbe shown that they could not have existed in the reign ofRichard I. Vide Bryant v. Foot 1867. 30 L.R. Q.B. Vol. II,p.161.Angus v. Dalton 1877, L.R. 3 Q.B.D. 89.
The result of this is that in English law "time immemorial" has a legal meaning which is inconsistent with itsliteral meaning ; as, clearly, "the time whereof thememory of man runneth not to the contrary" should mean,what it seems to have originally meant at Common Lawand prior to the statute of Edward I, namely "time so remotefrom the present that no one living could rememberany event then happening." In other words "time towhich living memory could not extend." The meaningof the phrase however was altered, and, as far as I canfind, its original Common Law meaning has never beenregained. For this reason it seems to me that to translatethe Turkish word "Qadim" as"time immemorial" is tosay the least very unsatisfactory, and likely to give rise tonotions of an antiquity far more remote than the Turkishconception requires.
The definition of "Qadim" in Article 166 of the Mejellé is"that, the beginning of which no one knows", which, onthe face of it, seems equivalentto "the time whereof thememory of man runneth not to the contrary." But if the"memory of man" means "time of legal memory", thissimilarity can only be superficial. The beginning of whichno one knows, suggests "no one at present alive" knows;which is another way of saying "within living memory."
No specific length of time has ever, as far as I callascertain, been fixed in English or Turkish law as the time of living memory, and the period istherefore indefinite andvariable. It seems probable that the 60 yearsfixed inEngland by the Prescription Act, as the length of user after which a title to a profit it prendre become indefeasible,the longest express period mentioned in that Act,was fixed on an estimation of the time of living memory;it being presumed that no one could remember accuratelyany state of things existing 60 years before. But thoughthis appears to be about the limit of memory, there is inour law no definite period, and it may perhaps be consideredthat in general living memory does not extendfurther. Should we feel ourselves bound by any such period of time in the case of "Qadim" ? In Baillie's Digest ofMoohummudan Law at p. 647 is a note reading as follows:"A bequest to one's Kudma (plural of 'Kudeem', 'former' or 'ancient') is to all those who haveassociated with him for thirty years." In this passage"Kudeem", another spelling of "Qadim", appears tobe used in a much wider sense. And though it here hasa purely technical legal meaning, it does tend to showthat its useis not like "time immemorial" restricted toremote antiquity. It therefore appears to me that thetranslation of the word as "time immemorial" in Tyser'stranslation of the Mejellé is loose and inaccurate. Baillietranslates "Qadim" as "former or ancient" ; and it seemsto me that if its interpretation be restricted to its literalmeaning as defined in Article 166 we shall not go farwrong in understanding it, viz. : "That, the beginning ofwhich no one knows," And by Article 12 of the MejelIé"In thecase of a word, the sense in which it is presumedto be used is the literal sense."
Applying this interpretation to the case before us, theappellant and his father before him had exercised,his right of way over lot 67 for a period of probably more than 55 years, and perhaps 60 years or over, while that lot, belonged to three successive owners, without any objectionor hindrance. Many of the oldest people in the village werecalled as witnesses, and none of them could rememberwhen that right of way did not exist. There was ampleopportunity for the respondent to call witnesses, if suchwere to be found, to prove the beginning of the right of way, but none was produced. It can therefore be presumedthat no one knew the beginning of the right. Itmust therefore be considered on the wider meaning, orperhaps more literal meaning in accordance with thedefinition in Article 166, I have given to the word, "Qadim",that appellant's right of way is established. It is actually"That, the beginning of which no one knows."
The learned District Judge in his judgment (at p.11)stated: "I have it in evidence that this property (all 4plots) was some 55 years ago owned by one and the sameperson, who then partitioned it among his children. Thereis no evidence that at the time of this partition anystipulation was made that the property, now plot 67, wouldbe under a servitude of a right of passage by the person towhom plot 65 was given. Had I had evidence to thateffect then the matter would have to be decided accordingto Article 1166 of the MejelIé which is still good law."
Now, the only evidence regarding the ownership of thefour lots by one person, namely the appellant's grandfather,and his dividing these lots among his children, was thatof the appellant himself. He was not able to speak of hisown knowledge, but only from what he must have learntfrom his parents; as he was only 60 years old in thewitness box and was speaking of a state of things 60 or 70years before that time. He was either not yet born orat most a very young child when the land was partitioned,and therefore could not give evidence as to the fact of orabsence of any stipulation that would have enabled himto base his action on Article 1166 of the Mejellé. He did notdo so but relied entirely on "Qadim", on which he could nothope to succeed had he been able to produce evidence of thesaid stipulation. For then the right of way would not be"Qadim", "that, the beginning of which no one knows."
Knowingby hearsay of a condition of things existingbefore the beginning of a prescriptive right is not the samething as. knowing the beginning of that right. We arenot in this case dealing with the English law of Prescriptionwhere a specific date 1189 was fixed for time immemorialand every presumption was that the right hadexisted from 1189-when it followed that a prescriptiveright could be defeated by showing its non-existence atany point of time since that date. But if a prescriptiveright is "Qadim" it cannot be defeated by showing thatat some earlier period it did not exist.
By Article 6 of the Mejellé what is from time immemorial(Qadim) will be kept in its ancient state. But by Article 1224"what is contrary to the Sheri Law is not considered to be of time immemorial (Qadim)." That is to say whateveris "Qadim" must be considered to have had a lawful originor at any rate must be treated as not contrary to SheriLaw. Certain things which are on the face of themunlawful, as the example of a public nuisance given inArticle 1224, cannot acquire the prescriptiveright to bepreserved in their ancient state. But it does seem thatunless there is some proof thata right which has beenanciently exercised is contrary to Sheri Law, that right isregarded as lawful on account of its long existence. Thoughnothing that had no legal origin could be "Qadim", if a thingis once proved to be "Qadim" then a legal origin is implied.The absence however of proof of a legal origin would notaffect"Qadim",because it is defined as "that, the beginning of which no one knows." For this reason I cannot subscribeto the opinion that this Article (1224) by implicationsets up a presumption of legal origin like that in Englishlaw, so as to enable the Court to assume that at the time ofpartition a stipulation was made establishing this right ofway in the manner contemplated in Article 1166. If thereis proof of "Qadim" there is no need for any presumptionof lawful origin-it, automatically follows from the proof.Nor, to prove "Qadim" must lawful origin be proved, as"Qadim" only arises when no one knows the origin. If theright in itself is unlawful according to Sheri Law, it cannotbecome "Qadim" even though the beginning is unknown.Article 4 of the MejelIé says : "With doubt certitude doesnot fade." Any doubt therefore as to the possibility ofthere having been no express stipulation as to a right of waywhen the land was partitioned, and the respective plots 64, 65 and 67 were formed, would be insufficient to Preventthe operation of prescription under Article 1224.
If we were to consider that in this case"Qadim" was notestablished, the question as to a presumption of lawfulorigin would arise. As I cannot find anything definitein the MejelIé that establishes this presumption, it mustbe considered to be imported into our law from the Englishcommon law. The presumption is that an easementlong enjoyed without interference must be considered tohave a legal origin. In this case the easement had beenenjoyed for a period of over 55 years. According totheevidence, the land to which the servitude belongs and thatover which it is exercised were both about 60 or 70 yearsbefore in the same ownership. If the right was exercisedfrom the time of partition for that long period it must Ithink raise the presumption of legal origin, or, in otherwords, that at the time of partition there wassuch a stipulation as is required by Article 1166.
In England, by common law, long exercised open enjoymentwithout interruption of a right raised a presumptionthat thatright had alegal origin. AccordingtoRoscoe (Evidence in Civil Action p. 35) "it is a rule ofprescription that : 'antiquity of time justifies all titles and supposeth the best beginning the law can give them'."It was stated as follows by Blackburn, J., in Shepherd v.Payne, 16 C.B. (N.S.) p. 135,33 L.J. (C.P.) 160-"the ruleof evidence has been established, that where there has been,long continued modern user of a right capable of a legalorigin the existence of that legal origin should be presumedunless the contrary be proved." Farwell, J., in AG v. Simpson (1901) 2 Ch. 691 states it as follows: "The principle is that when the Court finds an open and uninterruptedenjoyment of property for a long period unexplainedomnia praesumutur rite esse acta, and the Courtwill if reasonably possible·find a lawful origin for the rightin question." It was on this presumption that the fictionof a lost grant referred to in Shemmedi v.Shemmedi C.L.R.XVI, p. 87 was based, and twenty years user was consideredsufficient to raise the further presumption that theright had been enjoyed since time immemorial. In view ofthe fact that prescriptive title to rights of way is given byArticle 1224 of the Mejellé to such rights as may be "Qadim"as defined by Article 166 I do not think there is room in ourlaw for the fiction of a lost grant to create such prescriptive rights. Nor do I think that long user could under Turkishlaw raise any presumption of that state of things havingexisted from time immemorial, a possibility implied byBelcher, C.J., in Petri v. Christodoulou; such a conceptionseeming to me foreign to Turkish law, and unnecessary inview of the definition of "Qadim." But the presumption oflegal origin is on a different footing, as there appears to beno such presumption in the Mejellé, and it is not antagonisticto the general terms of presumptions therein set out,except perhaps in the case of "Qadim" where already establishedThis presumption therefore may be considered tohave been introduced into our law by the Courts of JusticeLaw, 1935, section 49 (1) (c) which brings in the Englishcommon law"save in so far as other provision has beenor shall be made by any law of the Colony" and theEvidence Law, 1946, section 3 (formerly the Evidence Law,1935, section 2) which brings in the English law and rules ofevidence "save in so far as other provision is made or shallbe made in any other law in force for the time being."
The difficulty experienced by the learned Judge in theCourt below in holding the appellant's right of way to be"Qadim", on account of the appellant stating that therespective pieces of land of respondent and himself were atone time under one ownership, and the learned DistrictJudge's consequent assumption that the beginning wasknown, is got over by thepresumption of lawful origin; which, in this case, would be a stipulation at the time ofpartition in accordance with Article 1166 of the Mejellé.And this would be no mere fiction, but the most probableorigin in the circumstances. In any case the DistrictJudge from the evidence could have had no more than adoubt as to the legality of the origin,and by Article 4 of theMejellé "with doubt certitude does not fade." Theappellant proved that the right of way had been enjoyed openly and uninterruptedly for over 55 years and that noneknew the beginning of it. I therefore hold that"Qadim"was established. If the right arose at the time of partitionit must be presumed to have had a legal origin by stipulationin accordance with Article 1166 of the Mejellé.
For these reasons I think this appeal should succeed.
This decision is unlikely to have any importance in future, as rights of way and other easements now come under the provisions of section 10 of the Immovable Property (Tenure, Registration and Valuation) Law, 1945, and prescriptive right can be acquired under it by 30 years user.
MELISSAS, J.: The respondents to this appeal sued appellant in the District Court of Limassol to restrain him from passing through respondents' vineyard to reach his own adjacent vineyard. The appellant pleaded that he exercised this right of passage of old as an easementattached to his own vineyard.
On the evidence the trial Court accepted, the two vineyardsof the parties were originally part of one larger property belonging to the appellant's grandfather whomore than 55 years prior to the trial partitioned it amonghis three children. Theappellant became owner of oneportion by inheritance through his father, and the respondentscame to own .another portion as heirs of IoannisKokkinofta who purchased it at auction in 1928 fromElpiniki, a cousin of appellant, with notice of this easementclaimed by appellant. From the time of this partitionthe appellant's father and after his death the appellantwere passing through the portion now owned by respondentswithout objection by respondents' predecessors in title.The respondents inherited this vineyard in 1936, andsome time after 1942 they disputed for the first timeappellant's right of passage.
The trial Court proceeded to apply the law to these facts.It considered two decisions of this Court dealing with the abantiquoright of passage, namely, Petri v. Christodoulou(1928), 13 C.L.R. 96, and Shemmedi v. Shemmedi(1940),16 C.L.R. 85, and came to the conclusion that the lattercase did not disapprove the former, and the trial Courtapplying the former ruled that no presumption of ab antiquoright arose from 55 years' user, and in the absence of anagreement as provided by Article 1166 of the Mejellé it heldthat the appellant had failed to prove the ab antiquorighthe claimed.
The facts of these earlier cases and of the present case differ materially. In Petri v. Christodoulou 24 .years' user was proved which was held to be "neither in itself user from time immemorial, nor did it raise a presumption of the same state of things having existed since time'immemorial." In Shemmedi v. Shemmedi no defined period of user was proved and the claimant of the ab antiquo right failed because he parted with the property to which the alleged right of way was attached 14 yearsprior to the decision. Each case, therefore, is distinguishablefrom the present one. What must have embarrassedthe trial Judge, however, seems to be the referencein the later case to the corresponding right in the Englishlaw. The fundamental question what is the true meaningof ab antiquoin the Ottoman legal system has not beendetermined in either of these two cases. Belcher, C.J.,in the earlier case carefully avoids to lay down any pro-position as to the minimum lapse of time which can beregarded as "time immemorial", this expression being,as he says, the usual legal phrase to represent the same ideaas the expression ab antiquo. Crean, C.J., in the later caseconsidered the ab antiquo right of the Ottoman law aspractically analogous to a right by prescription in Englishlaw and briefly refers obiter to the fiction of lost grantin proof of such right.
The law applicable to this case is the Ottoman law. TheTurkish word which is translated by the various translatorsof the Mejellé and of the Land Code as "ab antiquo"or"time immemorial", is Qadim or Kudeem. Literallyit means "former", "ancient" (see Baillie's Digest ofMoohummudan Law, p. 647, note 2). Its definition inArticle 166 of the Mejellé is translated by Tyser as "that,the beginning of which no one knows." No definedantiquity has been attributed to this term by any commentatoron the Mejellé or Land Code so far as my researches into this matter have gone. One sidelight onthe age content of this term is to be found in Baillie'sDigest of Moohummudan Law, p. 647, where the word"Kudma" (plural, of Kudeem) occurs in connection withbequests. It is there said that"a bequest to one's Kudmais to all those who have associated with him for 30 years."I believe the authorities designedly abstained from giving a definite duration of user to this term in connection with easements, because the circumstances of the exercise ofthese rights vary and the question of their antiquity wasleft to be determined in each particular case on its factsand merits. Again, the word "ancient" would have adifferent age content in different expressions, as for instance,"ancient monument", "ancient lights" and "ancientdocument" would not imply the same ancientness.
I shall now consider the word "Qadim" in its context. It occurs in Article 1224 of the Mejellé with which we are concerned in this case and which gives legal recognition to this right of passage. The definition of this term already cited, namely, "that, the beginning of which no one knows" may bear two interpretations:-
(a) absence of knowledge as to the beginning of the time of user, or
(b) absence of knowledge as to the origin of the right even though the period of its exercise is ascertainable.
If the first meaning is the correct one it is identical with the·English expression "time immemorial"which originally at common law meant that no evidence, verbal or written, could be adduced of any time when the right was not in existence, and the right was pleaded by allegingit to have existed "from time whereof the memory of man runneth not to the contrary." (Best on Evidence, 2nd Ed., p. 364.) I do not consider it necessary for the purposes of my decision to trace the historical development of this prescriptive right in the English law through its various stages of legal memory, living memory, and lost grant, but we may note one essential peculiarity of it which is contrary to the Sheri Law as we shall see later, namely, that where a person has used and enjoyed an easement 20 years and upwards, though it was a wrongful use at first, he thereby gains a good title to it, and in an action for its disturbance it is no answer to show that the plaintiff originally obtained the use and possession of it by usurpation and wrong. (See Gale on Easements, 11th Ed., p. 199, citing Holcroft v. Heel 1 Bos. &Pull. 400. Compare Dalton v. Angus (1878) 48 L.J.Q.B. 230-2 affirmed by H.L. (1881) 6 A.C. 740 as to the presumption of lost grant beingin some respects rebuttable and in others irrebuttable). In Halliday v. Phillips (1889, 23 Q.B.D. 48) affirmed by the House of Lords (61 L.J. Q.B. 210) Fry, L.J., said:
"The Courts are under an obligation, which has been insisted upon over and over again, wherever they can, to clothe with legal right long continued and undisputed enjoyment; and in my judgment that obligation rests upon the Court although enjoyment may be shown to have had de facto an invalid or illegal, or insufficient origin. I think where there has been long usage, longpossession, or long enjoyment, even although there may be an original infirmity in the de facto commencement, the Court is bound to presume, if it can, that that illegalorigin has been altered by something which has occurred in the course of time." (Adopted by Wright, J., in LondonandN. W. Rly v.Commissioners of Sewers, 66 L.J. Q.B.127).
The original meaning of "time immemorial" in theEnglish common law might have been ascribed to "Qadim",if Article 1224 of the Mejellé ended with the protectionof these rights by enjoining their preservation in theirancient state. But Article 1224 goes on to enact in itslast part that "that which is contrary to the Sheri Lawis not considered to be of time immemorial." Evidently,then, the protectionto the right was given in the firstpart, of the Article on the assumption or presumption thatit had a lawful origin and was not acquired contrary to thelaw; but upon proof of an unlawful origin-and this veryprovision contemplates such proof to be within the boundsof possibility-the protection is withdrawn.
Ali Haidar in his commentaries on the MejelIé, Vol. 4,p. 1036, commenting on this article explains that "theserights are left to continue in the same way as they werefrom ancient time...... because the predominant presumption(zanni-galib) is that an ab antiquo right is notestablished by oppression or wrong (zulmen), and in theabsence of evidence to the contrary the ab antiquois notdisturbed."
This passage from Ali Haidar and the nature of theprovisions in Article 1224 make it abundantly clear that thisArticle creates a rebuttable presumption of lawful originwhich is destroyed by proof of an unlawful origin of theeasement claimed. Consequently the correct meaningof "Qadim" must be that antiquity or ancientness whichobscures the origin of the right and renders proof of itslawful origin difficult. The presumption remedies thedifficultyby preservingtheright, and if disturbed, byshifting the burden onto the person attacking the rightto prove its unlawful origin, after proof of long, undisturbedand unexplained enjoyment has been given by the claimant.It is sufficiently palpable that "Qadim" cannot mean such lapse of time that no evidence can be adduced of any timewhenthe right was not in existence; if that weresothepresumption of lawful origin logically should have beenirrebuttable, save where the illegality or"excessive damage"is patent as in the case of a public nuisance. The rebuttablepresumption of Article 1224 ought to arise fromopen and peaceable enjoyment over a long period, eventhough its commencement is ascertainable. Otherwise fewsuch rights could be sustained in a Court of law on beingchallenged; one could easily destroy any number of theseancient rights by recourse to old registrations in the booksof the Land Registry which might show unity ofownershipof servient and dominant properties in olden times, and aright of overflow or to discharge water onto another's land enjoyed in respect of a very ancient house might be defeated if from an inscription on some part of the house the year of its erection could be ascertained. Such a proposition is untenable.
In the present case the right has been exercised by the appellant for nearly two generations continually, and it was acquiesced in by three successive predecessors in title ofrespondents. The trial Court declined to draw the presumption of lawful origin of the right from this very long, open, and peaceable enjoyment, because the servient and dominant properties belonged to the same person in the distant past. I am of opinion that it came to a wrongdetermination of the law applicable to the facts of this case.
The respondents did not plead that the exercise by the appellant of this right is causing them excessive damage in order to rebut the presumption of its lawful origin. They claimed £5 damage in all and their evidence disclosed damage amounting to some £2 every year to their vineyard, which is said to be worth between £50 and £100. The trial Court dismissed this claim for damages because respondents failed to prove that they suffered any damage.
It may be noted that this same presumption is now to be found in our Evidence Law, 1946, which repealed and reenacted the Evidence Law, 1935, and in the absence of special provision governing any particular case, its applicability to cases of long usage, long possession, or long enjoyment, may be considered in the spirit of the common saying that possession is nine points of the law,soexpressively expounded by Fry, L.J., in the case above quoted.
For the foregoing reasons I am also of opinion that this appeal should be allowed with costs.
Appeal allowed with costs. Judgment of the Court belowset aside and judgment entered for the appellant.