Browne v Bastien By Shadan Seraj At LEXCLIQ

Browne v Bastien [2002] VUSC 2; Civil Case 074 of 2000 (4 February 2002)

Facts

The defendant was already a long resident of the area. She built two break walls; one is at the far southern end of the defendants boundary and the other to the northern part, which is the second break wall, some distance from the plaintiff boundary, and well within her area. The second break wall built by her brother in 1983 after starting it of in 1974-75, while she was not there, now the cause of this action. I accept that her brother further built the second break wall and there after she continued to add on more coral to it when she goes swimming there. The break wall continued to build up as more corals were added on. Resulting to this build up, more sand came to be collected naturally there through the process of in and out flow of the sea currants for a long time. She started to build the break wall as in (D. 2 (1)) and (D. 2 (2)) in 1974 to 1975 with the permission of Chief Kalmet, as the people of Erakor own the beaches there.

Issues

1) Was the defendants break waters infringe against the law and therefore should be dismantled or removed?

2) Was there nuisance caused to the plaintiff by building the break wall.

The rights of enjoyment by the plaintiff will only come into consideration as of June 1997 and not before, or prior to 1997 as he was no where near being affected.

Judgement

The cause is by way of Originating Summons by the plaintiff seeking the following declaratory orders: –

1) A declaration that the defendant is not entitled to keep the said break water in such manner or to prevent the free flow of water in the lagoon in the area fronting to the plaintiff and defendants property.

2) An injunction restraining the defendant by herself, her servants or agents or otherwise from continuing to maintain and keep the said break waters so as to be a nuisance to the plaintiff.

3) An injunction requiring the defendant to remove and dismantle the second breaks water forthwith.

Both parties do not own the seashore where the dispute involved. The seashore is referred to customary land and subject to the Fore Shore Development Act.

The plaintiff acquire his title in June 1997 while the defendant acquires her property in 1964 about 32 years before plaintiff acquiring his property.

 

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