clr/1962/1962_1_198.pdf

(2)(

1. i)and (it)ofCap. 224. Practice—Delay in thehearing of cases highly undesirable—When necessary, adjournments should notbemore than oneor two, save in exceptional circumstances.Trial toproceed continuously until conclusion—Judgment should not be reserved for more than threemonths.The plaintiffs-respondents bought apiece oflandin 1907, on which a spring existed forabout 50/ears prior to 1907. In 1948 extensive improvements were made by theIrrigation Department asa result ofwhich the water ofthe springwas increased andacement tank wasconstructed. Both thespring and thetank were within the land ofthe plaintiffs-respondents. The land was registered in respondents' name together with another person, tn 1922 the respondents andtheother coowner distributed theuseofthe water amongst themselves and they were exclusively andcontinuously using the water 198 according t o the d i s t r i b u t i o n t i l l 1956 when the defendantsappellants interfered w i t h the water. N e i t h e r the spring nor the tank nor the water rights over t h e spring w e r e r e g i s t e r e d i n the name of any one o f the parties or anyone else. •The trial C o u r t found that t h e plaintiffs together w i t h the o t h e r co-owner of t h e land acquired a prescriptive r i g h t over the water as they w e r e using It for a period of over 30 years p r i o r t o 1946 (I.e., f r o m 1907 — 1946) when Cap. 224 came i n t o force and that they w e r e entitled t o be registered as owners of the water rights in accordance w i t h section 7 of Cap.224. Section 7 of Cap. 224 reads :" A l l lakes, rivers, streams and natural water-courses which are not privately owned at the date of t h e coming i n t o operation of this Law and t h e basins beds o r channels thereof, and any land f r o m which t h e sea o r the water of any such lake, river, stream o r watercourse has receded, w i t h the exception of any such land as is privately o w n e d at the date aforesaid, shall be vested in the C r o w n : Provided that nothing in this section contained shall be construed asaffecting any rights over any lake, r i v e r , stream o r natural watercourse which-(
2. a)have been exercised w i t h o u t i n t e r r u p t i o n for the full period o f t h i r t y years before the date aforesaid (
3. b)(
4. c)" It is t o be noted t h a t Cap. 224 came i n t o operation on September I, 1946. The H i g h C o u r t o f Justice, t h o u g h holding that the said section was inapplicable In this case affirmed the judgment of the t r i a l C o u r t basing t h e i r decision on section 10 and 22 respectively of Cap. 224. The material part of section 10 is as follows : . p r o o f of undisputed and u n i n t e r r u p t e d adverse possession by a person, o r by those under w h o m he claims, of immovable p r o p e r t y for the full period of t h i r t y years shall e n t i t l e such person t o be deemed t o be the o w n e r of such p r o p e r t y and" t o have the same registered in his name : Provided that nothing in this section contained shall affect the period of prescription w i t h regard t o any immovable p r o - 199 1962 May 28,29 July 10 CHRISTOBOUI.·-ST. TSIARTA AND ANOTUIK V. K.ODROS K.YRIACOU YlAPANA AND ANOTHER 1962 May 28, 29, July 10 CHFISTODOULOS ST. .TSIARTA AND ANOTHER l'. K.ODROS KYRIACOU YlAPANA AND ANOTWR perty which began to be adversely possessed before the commencement of this Law, and all matters relating to prescription during such period shall continue to be governed by the provisions of the enactments repeated by this Law relating to prescription, as if this Law had not been passed: Provided further that notwithstanding the existence of any disability operating under such enactments to extend the period of prescription such period shall not in anycaseexceed thirty years in all even where any suchdisability may continue to subsist at the expiration of thirty years". Bythedefinition section2ofCap. 224,"immovable property" Includes— (
5. d)springs, wells, water and water rights whether held together with, or independently of, any land ; The material parts of section 22 read asfollows :— "(I) Anything growing in a wild state on any land shall be deemed to be the property of the owner of the land.

(2)Thefollowing provisions shall haveeffect with regard to— (

1. a)any grafted wild tree on any land ; (
2. b)any tree or vine planted on any land ; * ' "«•''·-,* . . * - < (
3. c)any springfound,or any watercourse or channel opened or constructed in any land ; (
4. d)any building or other erection or structure erected on any land ; (
5. e)anyfixtureaffixedtoany landor toanybuildingor other erection or structure, that is to say— (I) if grafted, planted, found, opened, constructed, erected or affixed before the date of the coming into operation of this Law, It shall be deemed to be the property oftheowner ofthe land unlessanother person Is registered asthe owner thereof or, being entitled to be so registered, applies for registration within two years from the date of the coming into operation of this Law or within two years from the date on which he became so entitled ; (
6. if)If grafted, planted, found, opened, constructed, erected or affixed after the date of the coming into 200 operation of this Law, rt shall be deemed to be the property of the owner of the land, and any dealing affecting such land shall be deemed to Include any such wild tree, tree, vine, spring, watercourse, channel, building, erection, structure or fixture, being the property of the owner of the land.

(3)Nothing in this section shall apply to or affectfa) any instrument or thing which is the subject of any hirepurchase agreement under any Law In force for the time being relating to such agreements ; (

1. b)any fixture affixed by a tenant to any land or building or other.erection or structure for the purposes of trade or agriculture or forornament and convenience, which the tenant has a right to sever and remove during the term or at the end of his tenancy". Held : 1. (
2. a)Section 7 of Cap. 224 on which the judgment was based isinapplicable inthiscase. (
3. b)Theobject ofthe legislature inenactings.7of Cap. 224 was to vest in the Crown on the date of the coming into T$fJ>peratlon of the, Law.^aH lakes, rivers, streams and natural watercourses which were not privately owned on that.date ; and by paragraph,(
4. a)of the proviso the legislative authority safeguarded private rights over . such.lakes, rivers streams etc., which had been exercised without interruption for 30 years before 1946. The object of paragraph (
5. a)of the proviso wasto regulate the rights of private individuals over public rivers, streams etc., v/s-fl-Ws the State and not the private rights of Individuals among themselves. (
6. c)In view of the express provisions of section 10and22 ofthe same Law it Isapparent that section 7was not intended to regulate private rights over springs water or natural watercourses in any privately owned land asIn the present case. 2. The respondents-plaintiffs are entitled to be registered as owners of the water rights as they have exercised them without interruption for a period of over 30 years, I.e. from 1922when the distribution of water rights was made till 1956 when appellants interfered for the first time. 201 1962 May 28, 29, July 10 QUUSTODGEUUu Sli TMAftTA AND ANOTHER V. KODROS KYRIACOU YlAPANA AND A N O I H I R 1962 May 28, 29 July 10 CHKISTODUUIOS S T . TSIARTA ΛΝΙ) A N O I M I - K 3. The respondents also are deemed t o be t h e owners : ( I ) of the spring w h i c h was found on the land p r i o r t o 1946, under section 22

(2)(i) of Cap. 224,and

(2)of the cement tank which was constructed in 1948.under s.-22

(2)(

1. u)of the-same law. V. Appeal dismissed. KnRDOS KYRIACOti YlAPANA ΛΝΙ) ANOIIU R Observations by C o u r t regarding the undesirability of ad­ journing cases and hearing t h e m piecemeal. Delays in the hearing o f actions and delivery o f judgment deprecated. Appeal Appeal against the judgment of the District Court of Nicosia (Ch. K. Pierides, D.J.) dated the 13th March, 1961 (Action No. 2453/56) whereby it was declared, inter alia, that plaintiffs have a right over the water of the spring and tank which are situated within their land under Reg. No. 4509 and that plaintiffs and defendant 1 were entitled to be registered as owners of the aforesaid water rights. A Triantafyllkles for the appellant. A. C. Indianos with Ch. Velaris for the respondent. Cur. adv. vult. Thejudgment of the Court was delivered-by :— JOSEPHIDFS, J. : In this case the parties dispute the ownership of a spring and a tank and the water rights in that spring. The value of the subject matter is between £100 and £200. The trial Court declared that— (
2. a)each one of the two plaintiffs (respondents) had a right over the water of the spring and tank which are situated within their land under registration No. 4509 dated the 13th March, 1956, S/P XXXVIM/41, plot 960/6 at locality Milia tou Tourkou. Polystypos village, to lake and use the said water for irriga­ tion purposes for 3days and nights each every Sdays and nights, and thai defendant I (Stylianos Christodoulou Tsiarta) had a right over the aforesaid water for the remaining 2 days and nights every 8 days and nights ; 202 <
3. b)that theplaintiffs anddefendant I were entitled t obe registered as owners of the aforesaid water rights ; and (
4. c)thai thespring and tank which are within the aforesaid land of the plaintiffs, belong to them but subject to the water rights described in paragraphs (a)and (
5. b)above. The trial Court further issued an injunction restraining the defendants from interfering with the aforesaid water rights, and dismissed the counter-claim of defendants 2and 3 (appellants) whoclaimed that they had an ahantiquo right of irrigation in the above spring and water tank for 21 hours and 20 minutes every'8*days and nights. Defendants 2 a n d 3 now appeal against that judgment. The first ground taken'on behalf ofthe appellants is that the evidence adduced on behalf of the respondents was insufficient to support the findings of fact of the trial Court. After reading the<record in this case and listening to a very^ complete argument''of,^counsel for the appellants, we are unable to conclude that anyof the findings of fact ofthe trial Court were wrong. Onthecontrary, itisquite apparent from the record itself that the Judge was amply justified in coming to the conclusions of fact expressed in his judgment. The facts as found bythetrial Judge were thai the spring in dispute had been in existence for about 50 years before, that is, before the time when the plaintiffs (respondents) bought theland in which it is situate in 1907. rOriginally the spring was a small one and a small quantity of water was flowing into a natural pool nearby. In the year 1948 extensive improvements were made by the Irrigation Department, as a result of which thewater of the spring wasincreased and a cement tank was constructed. Both the spring and the tank are within the land of the respondents, plot No.960/6, which isregistered in their names under registration No. 4509. This plot is part of the land which respondents bought in 1907 and for which they were registered under registration Nos. 702 and 705 (plot 906), together with defendant 1. Neither the appellants nor anyof the other defendants, who have not appealed against the judgment of the trial Court, have anyrignt of irrigation over the water in dispute except defendant 1who, together with the two respondents, arethe 203 May 2B, 29, July10 CHRMTOOOUXO* ST. TBARTA AND A N O T K E » V. K.ODR03 KVRIACOU YlAPANA AND ANOTHfcB Josephides.J. 1962 May 28. 29, July 10 ( HRisroixjutos Sr. TSIARTA A N I I ANOIHI-R V. • KoDROS KYRIACOU YlAPANA ΛΝΙ) ΑΝΟΠΠR Josephides, J. only persons who are entitled to use and take the water of iHesaid spring and tank for irrigation purposes. The distri­ bution of the use of the water between the respondents and defendant I was made by ihem in-theyear 1922 as*follows :per 8 days and nights. 3 days and nights by each one of the respondents and the remaining 2 days and nights by defen­ dant I. Krom 1922 onwards, when the distribution of the use of ihc water took place, the respondents and defendant I have madecontinuous and exclusive use of their water rights until 1956 when appellants (defendants 2 and 3) interfered with the water. After the institution of the action respondent 1died and his estate is now represented by his son. The rights of the two original respondents, as well as those of defendant I, are now enjoyed by their respective children. As already stated, the land in which the spring and the tank are situated is registered in the names of therespondents. But neither the spring nor the tank nor the water rights over the spring are registered in the name of any of the parties or, indeed, in the name of any other person. On the above facts the trial Judge held that— "In accordance with the evidence which I have already explained the plaintiffs have exercised without inter­ ruption a water right over the spring and tank, the subject matter of the present action, as from the year 1922, when the distribution of the use of the water took place between themselves and defendant No.l, until July, 1956, when, for the first time defendants Nos. 2 & 3 interfered with the said water and they used it. Thus the plaintiffs used the water together with defendant No. 1 for the full period of 34 years which is more than sufficient for them to acquire a prescriptive right. To this period of 34 years another period of 15 years i.e., as from the year 1907 when plaintiffs bought their land until the year 1922, during which plaintiffs were using the said water must be added. By this way plaintiffs were using the walei for a period οΐ more than 30 years before the 1st Sept­ ember, 1946 when the law came into force. (1907 until 1946 =-39 years). By this way plaintiffs acquire a prescriptive right over the water in dispute andthere­ fore they are entitled to the registration of this right 204 in their names as owners thereof together with defendant No. I and this in accordance with section 7 of the Law, Cap. 224". The material part of section,7 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 reads as follows : » V"AM lakes, rivers, streams and natural watercourses which are not privately owned at the date of the coming into operation of this Law and the basins, beds, or channels thereof, and any land from which the sea or the water of any such lake, river, stream or watercourse has receded,'with the exception of any such land as is privately owned at the date aforesaid, shall be vested in the Crown: "Provided that' nothing in this section contained shall be construed as affecting any rights over any ' lake, river, stream or natural watercourse which— •' '"(
6. a)have been exercised without interruption for the full period of" thirty years before the date aforesaid ;" * t* - J„ * It'was argued on beKalfrof, the appellant that in calculating the thirty-year period under the provisions of section 7 of Cap. 224. no period after 1946 should be taken into consideration and that as the distribution of the water between the respondents and defendant 1 was made in 1922 only 24 yearshad elapsed until 1946and the learned Judge was wrong in holding that the respondents had exercised their rights without interruption for the full period of 30 years before 1946. It was further argued on behalf of the appellant that section 10 of the same law was not applicable to the present case and that even if it were applicable the thirty-year prescriptive period could only begin to run from the date of the coming into operation of the law, that is, the 1st September, 1946, and not before, because water and water rightswerenot included in the definition of the term "immovable property" before the enactment of that law. With great respect to the trial Judge, wedo noi think that section 7 of Cap. 224, on which his judgment is based, is applicable to the present dispute. From a perusal of that section it becomes abundantly clear that the object of the legislature was to vest in the Crown on the date of the coming 205 1962 May 28, 29. Jury 10 QlVVrODOULOS ST.1TtaAATA AND ANOTHER V. KODROS K.YRIACOL' YlAPANA AND ANOTHhR Josephides,J. 1962 May 28, 29, July JO CHRISronouLOs Sr. TSIARTA ΛΝΙ> ANOTHIK V. KODROS KVRIACOU YlAPANA AND ANOIHhR Josephides,J. into, operation of the law (IM September, 1946), all lakes, rivers, streams and natural watercourses, which were not privately owned on that date ; and by paragraph (a)ofthe proviso the legislative authority safeguarded private rights over such lakes, rivers, streams etc..which hadbeen exercised without interruption for 30 years before 1946. The object of paragraph (a)of the proviso was to regulate therights of private individuals over public rivers, streams, etc.. vis-a-vis the State, and not the private.rights of individuals among themselves. In view of the express provisions of sections 10and 22of the same Law,it is apparent that section 7was not intended to regulate private rights over springs, water or watercourses in any privately owned land, as in thepresent case. Section 9 of the Immovable Property Law, Cap. 224, provides that there canbenoadverse possession againstthe Crown (now the Republic) or a registered owner. Section 10 provides that where immovable property has not been registered or is not Crown land the period of prescription should be 30 years ; and it further provides that theperiod of prescription with regard toanyimmovable property which began to be adversely possessed before the commencement of the Law shall begoverned by theprovisions of theenact­ ments previously in force relating to prescription. The rele­ vant part of section 10reads as follows: "Subject to the provisions of section 9 of this Law, proof of undisputed and uninterrupted adverse possession by a person, or by those under whom he claims, of immovable property for the full period of thirty years, shall entitle such person to be deemed to bethe owner of such property and tohave the same registered in his name : "Provided that nothing in this section contained shall affect the period of prescription with regard to any immovable property which began to be adversely possessed before thecommencementof this Law, and all matters relating to prescription during such period shall continue to be governed by Ihe provisions of the enactments repealed by this Law relating to prescrip­ tion,asif this Lawhad not been passed". The definition or the expression "immovable property" 206 in section 2 includes "springs, wells, water and water rights whether held together with, or independently of any land".. 1962 May 28, 29,..July 10 It is well settled that the object of the above proviso to .section 10 was to safeguard the rights of persons in whose favour ihc prescriptive period had begun to run before the date of the coming into operation of the Law. In the case of Ara/.i Miric land the acquisitive prescriptive period was 10 years and in the case of Mulk 'and 15 years, CHRIiTOOOULOS In the present case the respondents made exclusive, un­ disputed and uninterrupted use of their right in the water in dispute from 1922, when the distribution of the use of the water was made, until July, 1956, when the appellants inter­ fered for the first lime with the respondents' rights. That is to say, they made use of their water rights for a period ex­ ceeding 30 years, that is, 34 years. Consequently, under the provisions of section 10 of Cap. 224, they are entitled to be deemed to be the owners of such property and to have it regis­ tered in their names. From our interpretation of section 10 it follows that we are not prepared to accept the submission of appellants' counsel that the prescriptive period in respect of water and water rights can only begin to run after 1946, and not before. Josephides, J. As regards the spring which is situated in respondents' piοt^as it was found there^before the date of the coming into operation of the Immovable Properly Law. Cap. 224, i.e. before the 1st September, 1946, under the provisions of sec­ tion 22, sub-section

(2)(i), it is deemed to be the property of the respondents, who are the owners of the land, as n o other person is registered as the owner of the spring, or being en­ titled to be so registered, applied for registration until the 31st August, 1948, or within two years from the date on which he became so entitled. Finally, as the tank which was constructed by the Irri­ gation Department in 1948 is a structure which was construct­ ed after the 1st September, 1946, under the provisions of section 22. subsection

(2)(ii), of the Immovable Property Law, Cap. 224, il n> deemed to be the property of the owner of the land, i.e. the respondents. For all these reasons the appeal fails. In conclusion we wish to make the following observa­ tions with regard to the delay in the hearing and determination 207 ST. TSIARTA AND ANOTHER v. KODROS . KYRIACOU YlAPANA AN» ANOTHER 1962 May 28, 29, July 10 CHRIST o u o i ' i u s S T . TSIARTA AND ANOTHTR r. KOUKOS KYRIAIOM ΥίΑΙΆΝΛ AND At-JOllIfck Josephides, J. of this case by the District Court. The action was instituted in August, 1956, and judgment was delivered in March, 1961. From thefirst day of the hearing to the day of the delivery of judgment a period of 2 years and 9 1/2 months elapsed. Fvidence was taken on 5different dates (for part of theday on Iwo or three dates) between the 26th May, 1958 and the 10th June. 1959, and the addresses were made on the 11th June, 1959, ie. a period of over a year elapsed between the 1st day of hearing and the conclusion of theaddresses ; and the judg­ ment was reserved for one year and 9 months. There were also five adjournments, including two before another Judge prior to the first day of hearing before the trial Judge. The evidence taken by the trial Judge, on the abovementioned five dates of interrupted he'aring over a period of a year, covers in all 38 typewritten pages, the addresses 3 pages and the judgment 17 pages. It is to be regretted that the hearing of the case was done piecemeal and that the Court delayed so long in delivering its judgment. Delays in the hearing of a case are highly undesirable and are to be deprecated. It is only in very exceptional cases that a judgment should have to be reserved for more than 2 or 3 months. A further word needs to be said with respect to adjourn­ ments. They produce justifiable dissatisfaction by litigants and^their witnesses, and statistical records of this Court confirm the opinion there are far too many. If an action can proceed the first time it comes on for trial so much the better. When adjournments are necessary there should not be more than one or two. After that there should be no more adjour­ nmentsexcept in unusual circumstances, as to which the Judge hasto decide. Having madethese commentsit must be added these will be very unusual circumstances in which there may be many adjournments, but they should be few in number. Concerning the taking of evidence in our opinion once a trial is begun it should proceed continuously day in and day out. where possible, until its conclusion. In the result the appeal is dismissed with costs for one advocate. Appeal dt.\fni\.\ed 208