Umbricht v Lesperance (CS 127/2000) [2007] SCSC 132 (6 August 2007)

Umbricht v Lesperance (CS 127/2000) [2007] SCSC 132 (6 August 2007)

The plaintiff's property is enclosed and has no other convenient or practicable access to the public highway apart from the disputed access road over the defendant's land. The alternative access proposed by the defendant is speculative and impracticable. Under articles 682 and 683 of the Civil Code, the plaintiff is entitled to a right of way over the defendant's land. The plaintiff did not acquire the right by prescription, but by operation of law due to the enclave status of her property. The defendant's obstruction was unlawful, and the plaintiff is entitled to damages, though the amount claimed is reduced as the claim was exaggerated.

Citation
[2007] SCSC 132
Parties
Plaintiff: Umbricht; Defendant: Lesperance
Court
Supreme Court
Jurisdiction
Seychelles
Judgment Date
6 August 2007
Case Number
CS 127/2000
Procedural Posture
Civil / Judgment
Outcome
judgment for the plaintiff
Legal Topics
Right of Way, Enclave Property, Easements, Moral Damages
Source Language
English
Property Law Civil Procedure Right of Way Enclave Property Easements Moral Damages

Case Brief

Summary, issues, holding and outcome

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Parties

Umbricht

Plaintiff

Lesperance

Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to a right of way over the defendant's land parcel PR661 to access her enclosed property PR624
  2. 2 Whether the plaintiff has acquired the right of way by prescription or by operation of law under the Civil Code
  3. 3 Whether the defendant's obstruction of the access road entitles the plaintiff to damages

Ratio Decidendi

The plaintiff's property is enclosed and has no other convenient or practicable access to the public highway apart from the disputed access road over the defendant's land. The alternative access proposed by the defendant is speculative and impracticable. Under articles 682 and 683 of the Civil Code, the plaintiff is entitled to a right of way over the defendant's land. The plaintiff did not acquire the right by prescription, but by operation of law due to the enclave status of her property. The defendant's obstruction was unlawful, and the plaintiff is entitled to damages, though the amount claimed is reduced as the claim was exaggerated.

Court Disposition

judgment for the plaintiff

Orders

  • Declaration that the plaintiff has a right of way over the defendant's land parcel PR661 along the existing motorable access road to PR624
  • Order to the defendant to permanently remove all obstructions, including the galvanised gate, blocking the plaintiff's right of way