Melanie and Others v Zoe and Another (235 of 2003) [2009] SCSC 39 (21 July 2009)

Melanie and Others v Zoe and Another (235 of 2003) [2009] SCSC 39 (21 July 2009)

The plaintiffs' lands are not enclaved as they have adequate alternative access to the public highway. The plaintiffs failed to prove continuous use of the disputed footpath over the defendants’ land for 20 years as required by law. Therefore, they are not entitled to a declaration of right of way or to moral damages.

Citation
[2009] SCSC 39
Parties
Plaintiff: Marie Therese Melanie; Plaintiff: Gilbert Zialor; Plaintiff: Robert Wirtz; Defendant: Peter Zoe; Defendant: Marie Helene Zoe
Court
Supreme Court
Jurisdiction
Seychelles
Judgment Date
21 July 2009
Case Number
235 of 2003
Procedural Posture
Civil / Judgment
Outcome
Plaintiffs' action dismissed with costs.
Legal Topics
Right of Way, Easements, Enclaved Land, Continuous Use, Moral Damages
Source Language
English
Property Law Right of Way Easements Enclaved Land Continuous Use Moral Damages

Case Brief

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Parties

Marie Therese Melanie

Plaintiff

Gilbert Zialor

Plaintiff

Robert Wirtz

Plaintiff

Peter Zoe

Defendant

Marie Helene Zoe

Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether plaintiffs' land is enclaved under Article 682-1 of the Civil Code
  2. 2 Whether plaintiffs have acquired a right of way by 20 years continuous use under Article 685-1 of the Civil Code
  3. 3 Whether plaintiffs are entitled to a declaration of right of way over defendants' land

Ratio Decidendi

The plaintiffs' lands are not enclaved as they have adequate alternative access to the public highway. The plaintiffs failed to prove continuous use of the disputed footpath over the defendants’ land for 20 years as required by law. Therefore, they are not entitled to a declaration of right of way or to moral damages.

Court Disposition

Plaintiffs' action dismissed with costs.