Waterman et Al v Waterman

• Jurisdiction: Barbados
• Judge: Worrell, J.
• Judgment Date: 30 September 1977
• Neutral Citation: BB 1977 HC 40
• Docket Number: No. 321 of 1976
• Date: 30 September 1977
• Court: High Court (Barbados)

High Court

Worrell, J.

No. 321 of 1976

Waterman et al

and

Waterman

D.K. Rawlins for the plaintiffs.

D.A. Simmons for the defendant.

Real Property - Prescriptive Rights — Right of Way.

Practice and Procedure - Executor of Will — Right to sue in representative capacity for deceased testator

Facts: The plaintiffs, the executor of the will of the deceased and a beneficiary under the will sought a declaration as to their rights to use a way over a position of the land which was formerly owned by the defendant — The plaintiffs also sought an injunction to restrain the defendant from obstructing the way — The issue was whether the plaintiffs were entitled to a right of way on the basis that their predecessors in title have enjoyed rights of user of the way continuously and from time immemorial.

Facts: Whether the first plaintiff who was the executor of the will of the deceased testator could have sued in a representative capacity — The other plaintiff in this action sought to claim a right of way which was allegedly granted by the testatrix over the devised property

Held: There could be no question of use continuously and from time immemorial as alleged by the plaintiffs as the area of the land in question was designated as a private road by the testatrix. The will did not expressly confer any rights on the devises to use the private road devised. Any rights of way devised would be vested for the time being in the executor and not the devisee as there was no transfer of the land to the latter either by conveyance or by assent — Action dismissed.

Held: That the first plaintiff would only be entitled to the relief sought in his capacity as executor — However, as he did not state that he was suing in a representative capacity in accordance with Order 4, rule 4 of the Rules of the Supreme Court and as no amendment was sought by counsel for the plaintiffs, the action was not maintainable by him in its present form.

Worrell, J.

1 The first plaintiff is the executor of the will of Herodia Catlyn. The second plaintiff and the husband of the defendant are beneficiaries under the will of Herodia Catlyn.

2 The plaintiffs are seeking a declaration as to their rights to use a way over a portion of land forming part of the estate of Herodia Catlyn. In addition, they are seeking an injunction to restrain the defendant from obstructing the said way, an order to require the Defendant to remove a motor car parked on the said way and damages. It is also alleged in the Statement of Claim that the plaintiffs and their predecessors in title have enjoyed rights of user of the said way continuously and from time immemorial.

3 Before the action came on for hearing, on the application of the plaintiffs in Chambers, an interlocutory injunction was granted on the 25th day of May, 1976 restraining the defendant from obstructing the free passage of the said way and ordering her to remove a motor vehicle which was parked on it.

4 Herodia Catlyn died in 1973, and her will was admitted to probate in June, 1976. In her will, she devised three roods of land situated in French Village in the parish of St. Peter to six of her children, including the second plaintiff and Vere Waterman, the husband of the defendant. According to the terms of the will, the land was to be equally divided among the six children; and there is a direction in the will that four feet of the said land be taken off on the western side for the purpose of a private road.

5 Both the second plaintiff and the defendant occupy a portion of the land devised. The area of land which forms the subject matter of this suit lies to the west of the defendant' s...