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(1983)1983 October 26 [TRIANTAFYLLIDES, P., DEMETRIADES, SAVVIDES, JJ.] SAVVAS YIANNI VALANA, Appellant-Plaintiff. v. ANGELIKI NICOLA ELIA, Respondent-Defendant, AND THE ATTORNEY-GENERAL OF THE REPUBLIC, Respondent-Third-Party. {Civil Appeal No. 6190). Immovable Property—Right of way—Prescription—Thirty years user without interruption—Section l\(\)(b) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224— Strip of land over whichrespondent exercised a right of way was from 1938 to 1971 registered as public road to the knowledge of 5 both parties—This fact deprived owner of the land to object to respondent's making use of the saidstrip of landand,also, to take steps to prevent her from passing over it—Nature of the right exercised by respondentandherpredecessorsnotsuchastoamount to a right envisaged by the above section 11
(1)(Z>) of Cap. 224. 10 In an action by the appellant-plaintiff for damages for trespass and for an injunction restraining the respondent-defendant from trespassing upon his property the trial Judge held that the respondent and her predecessors in title were exercising a right of way over the disputed strip of land since 1930, and that the J J fact that the said strip of land was registered by mistake as a public road from 1938 to 1971 had no effect because once such registration was made by mistake, which was subsequently amended it was null and void ab initio in view of the provisions of section 61*of the Immovable Property (Tenure, Registration 20 and Valuation) Law, Cap. 224; and that, therefore, the exercise of a right of passage by the respondent continuously for over This section is quoted at p. 736 post. 730 1 C.L.R. Valana v. Elia 30 years entitled her to have such right over the land of the appellant registered in favour of her property. In deciding as he did the trial Judge relied on section 1 l(l)(b) of Cap. 224 which provides as follows: 5 10 "11.
(1)No right ofway or any privilege, liberty, easemem, or any other right or advantage whatsoever shall be acquired over the immovable property of another except—„ ... (b)where the same has been exercised by any person or by those under whom he claims for the full .period of thirty years without interruption; provided that the provisions of this paragraph shall not apply to any immovable property which is Crown property or property vested in the Crown". Upon appeal by the plaintiff: 15 Held, that since the disputed strip of land over which the respondent exercised a right of passage was since 1938 till 1971 registered as public road to the knowledge both of the appellant and the respondent, this fact deprived on the one hand, the appellant of any right to object to the respondent's making 20 use of such passage, and on the other hand, to take any steps to prevent her or her predecessors in title from passing over such strip of land; that the nature of any right exercised by the respondent and her predecessors in tille over the disputed strip of land during the years 1938-1971,was not such as to amount 25 to a right envisaged by section U(l)(b) of Cap. 224; and that as the full period of 30 years of user without interruption has not been established, the respondent could not acquire such •right; accordingly the appeal must be allowed. Appeal allowed. 30 Cases referred t o : Valana v. Republic, 3 R.S.C.C. 91; Shemmedi v. Shemmedi, 16 C.L.R. 85; Demetri v. Kleanthi and Another, 18 C.L.R. 141; Voskou v. NjiPetri, 1964 C.L.R. 21 at pp. 26, 27; 35 Dalton v. Angus [1881] 6 A.C. 740 at pp. 773, 774; Chaplin&Co. Ltd. v. Westminster Corporation [1901]2 Ch. 329; Dikomiti and Another v. HjiKolos and Another, 24 C.L.R. 53. 731 Valana v. Ella
(1983)Appeal. Appeal by plaintiff against the judgment of the District Court of Nicosia (Ioannides, D.J.) dated the 30th September, 1980(Actions Nos.4795/75and 2119/72)whereby itwas adjudged that the defendant was entitled to a right of way over plaintiff's 5 property. A. Ladas, for the appellant. N. Pelides, for the respondent. Gl. HadjiPetrou, for the third-party. Cur.adv. vult. 10 TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by Mr. Justice Sawides. SAVVIDES J.: This is an appeal against the judgment of the District Court of Nicosia in two actions brought against the respondent for trespass and damages, which were consolidased 15 and heard together. By the first action No.2119/72 the appellant claimed £74.- damages for trespass and an injunction restraining the respondent from trespassing upon his property. Bythe second action No. 4795/75the appellant claimed an order of the Court directing the respondent to remove any structures 20 erected on his property and for an injunction restraining her from trespassing upon his property. The respondent by a counterclaim in Action No. 4795claimed a right of passage over the disputed strip of land, alleged as having been exercised by her and her predecessors in title for over thirty years, and, also, 25 for an injunction restraining the appellant from interfering with the exercise by the respondent of such right. Also, by a third party notice issued by leave of the Court, the respondent joined as a third party the Attorney-General of the Republic on behalf of the Republic of Cyprus, claiming against him a declaration 30 that the disputed strip of land which was registered in the name of the appellant by the third party ispart of the public road and that the action of the third party to transfer it in the name of the appellant, was illegal. In the alternative, damages were claimed by the respondent against the third party. 35 By his judgment the trial Judge found that the respondent had acquired a right of way by prescription over the disputed strip of land and made a declaration accordingly with an injuction restraining the appellant from interfering with such 732 1 C.L.R. Valana v. Elia Savvides J. right of passage of the respondent. The Court further found that certainstructures whichhadbeenerected bytherespondent onthe said strip of land constituted a trespass over the land of the appellant and he gavejudgment in favour of the appellant 5 restraining the respondent from trespassing upon the property oftheappellant otherwisethan byexercising her right of wayas found by him and directing her to remove the part of a staircaseand ofaverandahwhichshehaderected onthe landofthe appellant. By the samejudgment, the proceedings against the 10 third party were dismissed. Theappellant filed thepresent appeal against that part ofthe judgment, whereby the respondent was found and adjudged as entitled to a right of way over his property. Thegroundsofappealasfinally formulated before thisCourt, 15 were to the effect that the trial Court erred in adjudicating that respondent is entitled to a right of way through appellant's property and that on the evidence adduced, no such right has been proved because inviewof thefact that the strip of land of the appellant over whichthealleged right of waywasexercised, 20 had, mistakenly, been registered in the books of the L.R.O. as being part of a public road and stood so registered from 1938 until 1971when theerror wasrectified therespondent could not acquireanyeasementbywayofprescription over land registered inthe name of the Government. It wasfurther submitted that 25 the Court exercised its discretion in a defective and/or wrong manner in not awarding costs in favour of the appellant. In the course of the hearing of the appeal, counsel for respondent filed an application for extension of time to file an appeal against that part of the judgment of the trial Court, 30 whereby the third party proceedings were dismissed and for leave tofile an appeal out of time. Such application was later withdrawn and, therefore, the dismissal of the proceedings against the third party, stands unchallenged. The facts of these cases as appearing from the record of the 35 proceedings and from the various exhibits, are as follows: The appellant is the registered owner of a plot of land at Platanistassa villagewhich isadjacent to that ofthe respondent. When a survey for the purposes of general registration took 733 Savvides J. Valana v. Ella
(1983)place in the years 1924and 1926,thedisputed strip of landwas found to be part of the property of the appellant and was so recorded in the field record. In the year 1938,when appellant filed an application to the Lands' Department under No. A 1549/38, for the registration in his name of his property, as 5 found at the survey for the purposes of generalregistration, after a local inquiry wascarried out by the Lands Office for the purposes of such application, the disputed strip of land was found by the clerk who carried out such inquiry, as part of the public road and was so registered. The respondent, according 10 to thefindings ofthetrial Court, wasusingthedisputed stripof land, byherself andherpredecessorsintitle,asapassagefor her property since
  1. The title deeds issued by the Lands Office in 1938described thedisputed strip of land aspart ofthepublicroad and assuch 15 boundary of the appellant's property on one side and also as boundary of the respondent's property on the northern side. Theappellant never consented to such action on the part of the Lands Office, and was disputing that such strip of land was part of the public road. Plot 1274/1/1 of an extent of 1225 sq. ft. covered by Registration No. 14189,was,at the time when the two actionswere brought by the appellant, registered in the name of the respondent. At the survey carried out for the purposes of the general registration in 1924-1926,suchplotwaspart ofanother 25 plot of a larger area, Plot 1274which wasrecorded in the Field Book as belonging to the heirs of HadjiDemetri Fella of Platanistassa. Subsequently, it was registered under Registration No. 7307ofwhich l/7th sharewasregistered inthenameofthe heirs of Sawa HadjiDemetri and remained so registered till 30 20.11.45 when Plot 1274 was subdivided into four plots as a result of an application made by the co-owners to the Lands Office in
  2. Out of the sub-divided plots which resulted from the original plot, Plot 1274/1was registered as a wholein thenameofNicolasEhaHj.Nicola,thefather oftherespondent, 35 under Registration No. 14186,who, subsequently, transferred it in thename of the respondent on 22.7.
  3. Suchplot had, as its boundary on the northern side,thedisputed strip of land as public road. Earlyin 1959theappellantfiled anapplicationtotheDirector 40 734 20 1 C.L.R. Valana v. Ella Savvic'es J. of Lands (No. A. 589/59 appearing in exhibit 1) contesting that the disputed strip of land and an additional strip opposite to Plot 1274/2, which adjoins the property of the defendant and which was registered in the name of HadjiSavva HadjiDemetri 5 Fella under Registration No. 12856, were part of the public road and persisting that they belonged to him. After a local enquiry was carried out and the Director of Lands examined the case, he reached the decision that the strip of land along the Northern boundary of Plot 1274/2 was in 10 addition to the strip of land the subject matter of this appeal, part of the public road and directed that the registration in the name of the appellant and the owner of Plot 1274/2 be amended accordingly to show such strip as one of the boundaries of their respective properties. The decision of the Director was com15 municated to the appellant and the owner of Plot 1274/2 by letter dated 22nd February,
  4. Such decision was not communicated to the respondent obviously due to the fact that her title deed need not beamended as the strip of land on the Northern boundary of her property appeared as public road. 20 The appellant objected to such decision and in fact filed a recourse to the Supreme Constitutional Court in 1961 (see, Savvas Valanaand The Republic of Cyprus through the Director of Lands and Surveys
(1962)3 R.S.C.C. 91). Such recourse was dismissed ontheground that theact ofthe Director of Lands and 25 Surveys was within the domain of private law and not of public law and in consequence it could not be the subject matter of a recourse. The respondent erected stairs on the disputed strip of land to enable her enter her house which was on a higher level, and, 30 also, a verandah, part of which was built on the disputed land. The appellant never gave up his efforts of having the alleged error of the Lands Office rectified, so that the said strip of land be included in his registration as part of his property. In 1971 the appellant filed a new application to the Director of Lands 35 and Surveys for reconsideration of the case and cancellation of the registration of the disputed strip of land as public road. The Director of Lands and Surveys, after re-examining the case, came to the conclusion that the complaint of the appellant was justified and in the exercise of his power under section 61
(2)of 735 Sawides J. Valana v. Ella
(1983)the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, as amended by Laws 3/60 to 75/68, decided to amend the error and register the two strips of land, the one of which along the Northern boundary of respondent's property, and the other along the Northern boundary of Plot 1274/2, in 5 the name of the appellant as part of his property and cancel their previous registration as public road. He also decided to amend the boundaries of respondent's property and of its adjoining property so that instead of having such strip of land appearing in their title deeds as "public road", to have as boun- 10 dary in its place "Plot 1273 Sawas Yianni Valana". The decision of the Director of Lands was communicated on the 25th November, 1971, to the parties and all other persons concerned, informing them at the same time that any person having any objection to such amendment, should make his objection 15 within 30 days from the mailing of the said notice, as provided by section 61
(2)of Cap.
  1. No objection was made by anybody to such decision and after the expiration of the prescribed time, the Director proceeded to give effect to his decision by amending the previous registration accordingly and issuing 20 new title deeds describing the disputed portion as part of appellant's property. The respondent continued to make use of that strip of land as passage and the appellant filed her first Action 2119/72 and then Action 4795/75 claiming the remedies already mentioned. 25 The trial Judge after hearing a number of witnesses, called by both sides, came to the conclusion that therespondent and her predecessors in title were exercising a right of way over the disputed strip of land since
  2. In dealing with the fact that the said strip of land was registered as a public road since 1938 30 till 1971,the trial Judge decided that once such registration was made by mistake which was subsequently amended, it was null and void ab initio under section 61 of Cap. 224 which provides that - "any amendment will have effect as if the mistake or omission has never taken place", and, therefore, the exercise of 35 a right of passage by the respondent continuously for over 30 years, entitled her to have such right over the land of the appellant registered in favour of her property. Prior to 1945 Article 13 of the Ottoman Land Code which was the law then in force, provided as follows: 736 40 1 C.L.R. Valana v. Elia Sawides J· "Every possessor of land by titledeed can prevent another from passing over it unlawfully but if the latter has an ab antiquo right of way he cannot prevent him." In Shemmedi v. Shemmedi, C.L.R. Vol. 16,p. 85, the ana5 logy is drawn between the provision of section 13of the Land Code to a right of prescription under the English Law. At page 87, we read: 10 15 20 25 "The ground on which the appellant relies is that he has an abantiquo right topassoverpart ofa passageonwhich respondent has built. According to the Ottoman Land Code article 13 every possessor of land by title-deed can prevent another from passing over it, but if the latter has an ab antiquo right of way he cannot prevent him. There isa definition ofan *abantiquo right' givenin the Mejelle. It is there defined as, 'that, the beginning of which no one knows.' It is practically analogous to a right by prescription in English law. Originally the time necessary to establish a title by prescription was 'time whereof, the memory of man runneth not to the contrary.' In practice the enjoyment as of right for 20 years was regarded as proof of user from the time of the commencement of legal memory. The courts resorted to the fiction of a lost modern grant, and where user for 20 years was proved, juries were directed to find that the right in question had been the subject of a grant, but that the grant had been lost. This period of 20 years wasfixed by analogy to the period required by the old Statute of Limitations - 21 of James the first." In Chrysanthos Demetri v. Arestis Kleanthi and Another* 30 C.L.R. 18,p. 141,Griffith Williams J., though one of the two judges who were constituting the Bench in the Shemmedi case, expressed the view that the doctrine of lost grant under the English law was not applicable in Cyprus, and, therefore, what was said in that case, in this respect, must be considered an 35 obiter dictum. In Christodoulos (alias Tooulis) Yianni Voskou v. Michael HjiPetri,1964C.L.R. 21 at pp. 26,27,Zekia,J. in expounding ontheprincipleof"ab antiquo"rightmakesthefollowingcom737 Savvides J. Valana v. Ella
(1983)parison between the old law(the lawin force prior to 1945)and the new law: "The following passage from page 547, Halsbury's Laws of England, 3rd Edition, volume 12, in my view may be taken to be a brief statement of the law on the subject 5 which equally applies to ab antiquo rights under Ottoman Laws: 'Time for which user must beproved. As it isusually impossible to prove user or enjoyment further back than thememory oflivingpersons,proof ofenjoyment 10 as far back as livingwitnesses can speak raises a prima facie presumption of an enjoyment from the remoter era. Where evidence is given of the long enjoyment of a right to the exclusion of all other persons, enjoyed as of right as a distinct and separate property in 15 a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pursuance of such an origin, which, in the absenceofproof thatitwasmodern, isdeemedtohave arisen beyond legal memory.' 20 According to the previous law what was material in the acquisition of the right of passage - otherwise than by an express grant - over the land of another was the length of time this right was exercised irrespective of any change in the possessors or owners of the dominant land. The 25 uninterrupted user of such right in favour of a particular piece of land for a long period amounting to 'Qadim' secured a right of passage over the servient plot for any possessor of the dominant land. This kind of right ofway of course lapses when the possessor of both dominant and 30 servient land isthe sameperson, which isnot thecasehere. The new law apparently in order to overcome the difficulties of establishing user and enjoyment of easements from time immemorial or 'Qadim'-an indefinite and uncertain period - adopted the modern feasible way of pre- 35 scribing a definite minimum period for acquiring such rights. It seems the length of user independently of any change in the possessor of the dominant tenement is what is material also in English Law in the acquisition of ease738 I C.L.R. Valana v. Ella Sawides J. ments by long user (see page 152, Gale on Easements, 13th Edition)." From early timesEnglish authoritiesindealing with theacqui­ sition of rights over the land of another by long user, have 5 followed the definition of Roman Law: The user which will support a prescriptive right must be exercised neevi, neeclam, neeprecario(withoutforce, withoutsecrecy withoutpermission). Fry,J. inadvisingthe Houseof Lords inDalton v. Angus [1881] 6 Appeal Cases 740 at pp. 773, 774, in a famous passage, refe10 renceto which is madeby most authors on real property, based the doctrine of prescription upon acquiescence. 15 20 25 30 35 40 "But leaving such technical questions aside, I prefer to observe that, in my opinion,the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingre­ dients acquiescence consists. ΙΛ many cases, as for in­ stance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1st, the doing of some act by one man upon the land of another; 2ndly, the absence of right to do that act in theperson doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for theCourtsto say thathe shall not afterwards interfere to stop the act being done. In some other cases, as, for example, in the case of lights, some of these ingredients are wanting; but I cannot imagine any caseof acquiescenceinwhichthereisnotshown tobeinthe servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that 739 Savrides J. Valana v. Ella
(1983)such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain, both from reason, from maxim, and from thecases." Theprovisionsexistinginthelawpriorto 1945concerningthe acquisition of easements were repealed by the Immovable 5 Property (Tenure, Registration and Valuation) Law, Law 26/45, now Cap. 224 which, under section 11,as amended by section 3 of Law 16/80 provides as follows: "11.
(1)No right of way or any privilege, liberty, easement, or any other right or advantage whatsoever shall be 10 acquired over the immovable property of another except (
  1. a)under a grant from the owner thereof duly recorded in the books of the District Lands Office; or (
  2. b)where the same has been exercised by any person or by those under whom he claims for the full period of 15 thirty years without interruption: Provided that the provisions of this paragraph shall not apply to any immovable property which is Crown property or property vested in the Crown; or . (
  3. c)where the same has been recognized by ajudgment of 20 a competent Court; or (
  4. d)where the same has been conferred by a Firman or other valid document made before the 4th June, 1878, which has been acted upon from the time when it was made; or (
  5. e)wherethe samehasbeenacquired under theprovisions of section 11A; or (
  6. f)where the same has been created and acquired under the provisions of the Compulsory Acquisition of Property Law, 1962, or any Law amending or sub- 30 stituted for the same; or (
  7. g)where the same has been reserved in writing by the owner of any immovable property upon the transfer of such property. Provided that the aforesaid paragraph applies also 35 whenever any provision is included related to theuse 740 25 1 C.L.R. Valana v. Ella Sawides J. or development of any immovable property or with restriction as to its use or development. 5
(2)No person shall exercise any right of way or any privilege, liberty, easement or any other right or advantage whatsoever over the immovable property of anotherexcept where the same (a) has been acquired as in subsection
(1)of this section provided; or 10 (
  1. b)is exercised under the provisions of any Law in force for the time being; or (
  2. c)is exercised under a licence in writing from the owner thereof." In addition to the above, in cases where immovable property is surrounded and enclosed by other properties and is lacking 15 accesstothepubhcroad, arightofacquiringsuchaccesssubject to payment of reasonable compensation and by means of a defined procedure has been provided by section 11(A)to CAP. 224 which has been added by Law 10/66. Having examined the modes of acquisition of easements over 20 theimmovable property ofanother, wearecoming nowtoconsider whether in the circumstances of the present case, the respondent has acquired a right of passage over the immovable property of the appellant as found by the trial Judge. It is an admitted fact in this appeal that the disputed strip of 25 land over whichtherespondent exercised aright ofpassagewas since 1938 till 1971 registered as public road to the knowledge both of theappellant and therespondent,suchfact beingrecorded in their respective title deeds. The fact that such strip of land was registered as public road deprived, on the one hand, 30 the appellant of any right to object to the respondent's making useof suchpassage,and, ontheother hand,totakeanystepsto prevent her or her predecessors in title from passing over such strip of land. Adopting the words of such an eminent Judge, as Fry, J., in 35 Daltonv. Angus(supra) at p. 774, " - .it isplain good sense to hold that a man who can stop an asserted right, or a 741 Sawides J. Valana v. EJia
(1983)continued user, and doesnot do sofor a longtime,may be told that hehas losthisrightbyhis delay and hisnegligence, and every presumption should therefore be made to quiet a possession thus acquired and enjoyed by the tacit consent of the sufferer. But there is no sense in binding a 5 man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb." Furthermore what was the nature of the right of passage enjoyed by the respondent and her predecessors from 1938 till 1971? Was it in the nature of a private right over the land of 10 another whichcould beacquired bylonguser or wasit an exercise of a public right? As already mentioned, the respondent and her predecessors were aware that the land over which they were passing was public road, over which the provisions of section ll(l)(
  1. b)of Cap. 224could not apply. The question of 15 enjoyment of the highway and of any right arising therefrom has been considered in Chaplin &Co.Ltd. v. Westminster Corporation [1901]2Ch. 329whichhasbeenadopted byourSupreme Court in ChristinaYorkiDikomiti andAnotherv.Michael CostiHadjiKolos andAnother (1959 - 1960) C.L.R. Vol. 24, p. 20 53. Lord Buckley at p. 333of the abovecase,had thisto say: "A person who owns premises abutting on a highway enjoys as a private right therightof stepping from his own premises on to the highway, and if any obstruction be placed inhisdoorway, orgateway, or, ifitbeariver, at the 25 edge of his wharf, so as to prevent him from obtaining access from his own premises to the highway, that obstruction would be an interference with a private right. But immediately that he has stepped on to the highway, andis usingthe highway, whathe is using is not aprivate 30 right,butapublicright." (the underlining is ours). In the result, we havereached the conclusion that the nature of anyright exercised bytherespondent and herpredecessorsin title over the disputed strip of landduring the years 1938-1971, was not such as to amount to a right envisaged by section 35 ll(l)(
  2. b)of Cap. 224 and, therefore, as the full period of 30 years of user without interruption has not been established, the respondent could not acquire such right. The appeal istherefore allowed and an order of injunction is 742 1 C.L.R. Valana v. FJia Sawides J. granted restrainingtherespondent,herservantsand agents from passing over theproperty of theappellant, thesubject matter of thisappeal,whichwillbeinadditiontotheother ordersalready made in the two actions and which have not been appealed. 5 10 In the circumstances of the case, we have decided not to disturb theorder ofthetrial Judge,directing eachparty to bear its own costs for the trial before him, but concerning this appeal, we awardcostsinfavour oftheappellant and wemake an order accordingly. Appeal allowed. Orderfor costs as above. 743

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