Classification of Property

Under the Roman Dutch Law, property may be classified as –

1. Res Intra Commercium
2. Res Extra Commercium
Res Intra Commercium
It includes things which are capable of being owned or possessed by private
persons.
It includes all things in respect of which private commercial transactions are
legally possible.
Res Extra Commercium
 These are not capable of being owned or possessed –
Res Sacrae – things consecrated to Gods e.g. offerings, sacred buildings
Res Religiosae – subjects which possess both a sacred and a hallowed quality e.g.
burial grounds
Res Sanctae – inviolable things which have been fortified against the wrongdoings
of mankind e.g. city walls and gates
Res Publicae – the use of these are common and are owned by all and occupied
by the State e.g. public roads, sea shores and river banks
Res Communes – things common by the law of nations which are used by all but
owned by nobody e.g. air, running water, sea
Other distinctions in the Roman Dutch Law are –
Owned and un-owned things – the distinction lies between things which are
actually subject to ownership and those which are not (res nullius) e.g. wild
animals and abandoned property
Res Corporales and Res Incorporales – former are things which can be touched
and the latter are those which cannot e.g. rights of servitudes and inheritance
Res Fungibilies and Res Non Fungibilies – former are things which are described
in terms of weight or measure and the latter deals with bodies and masses rather
than quantities
Res Mobiles and Res Immobiles – movable and immovable things

Under the Roman Dutch Law, there is a fourfold classification of property –

Movable Property (Corporeal Movables) – means property of every description
not permanently attached to the earth e.g. clothes, furniture, vehicles, currency,
severed fruit, animals
Immovable Property (Corporeal Immovables) – land and whatever is adherent
thereto e.g. growing trees, standing crops, minerals forming part of the earth
a) Fructus Naturales and Fructus Industriales – products of nature and
products which are brought into being by human endeavor and industry.
The former is generally classified as immovable and the latter as movables
Lee Hedges & Co. v James Seville – Burnside C.J. observed that fructus naturales
are the natural growth of the soil such as grass, timber or fruit tree which at
common law are part of the soil while fruits produced in manual labour such as
sowing, planting, reaping and gathering are fructus industriales
Thambipillai v Kandiah – Jayathilleke J observed that if it is produced essentially
by the labour of man, it must be considered as fructus industriales
The distinction is important because –
1. Benefit of crops treated as movables may go to the possessor while crops
which are immovable will go to the owner of the soil
2. Fructus naturales are governed in Sri Lanka law by Prevention of Frauds
Ordinance and Furctus Industirales are governed by the Sale of Goods Act

Fixtures
Movables attached to the land or buildings which acquire the quality of
immovable because they are affixed to the land and indented to be affixed
thereto permanently.
Voet – “as for the act of the owner, when things which before were movable,
whether beams or columns, have been attached to a house with the object of not
temporary but permanent use, they forthwith belong to the house and are thus
immovable.” “Everything which is inserted and included in the building for the
purpose of use of the house as if it were part thereof is a fixture” e.g. paintings on
the plasters, marble facings, hooks and keys, though not attached to the soil, are
permanent fixtures.
Oliver v Haarhof (South African Case) – the elements that should be considered
are –
a) the nature of the particular article;
o Abeysundara v Hinni Hamy – The question whether an article annexed to a
building is to be regarded as fixture depends not only on the degree of
annexation, but the object of annexation. Thus, a wooden screen standing
on its base and only wedged in between two walls so as to be held firmly by
them by lateral pressure, but intended by the owner of the building to be a
permanent partition of the main hall of the building into two rooms, is a
fixture that passed to the purchaser on a sale of the building.
b) The degree and manner of its annexation; and
o Broadie v Attorney General – fixtures are articles which by being affixed or
let into the ground or annexed or attached to buildings, acquire the
character of immovables and pass into the building. Counters, cooking
range, water tanks, electric bells, baths, lavatories etc. were fixtures which
passed with the building in the absence of a special agreement to the
contrary.
 the intention of the person annexing it
o New Castle Collieries Co. Ltd. v Borough of Newcastle – annexation
afforded string evidence of an intention that the railway should remain
permanently “in situ”
o Thissera v Thissera – Held, that the various structures which constituted
the mill became part of the land on which they stood and that they passed
to the second defendant by virtue of the bill of sale. Howard C.J. observed
that “the manner in which the venture started and the mode in which the
mill was operated over a number of years indicated that the brothers
 intended that the mill should remain permanently fixed to the building in
which it was installed.”
Incorporeal Movables
It servitudes over movables; actions in personam; shares in companies; patents,
trademarks and copyrights; the good will of a business etc.
Incorporeal Immovables
Prescription Ordinance defines “immovable property” to include all shares and
interests in such property, and all rights, easements, and servitudes thereunto
belonging or appertaining. An incorporeal right is movable or immovable
according to the nature of the incorporeal thing to which is pertains e.g. grant of
rights in respect of minerals, leasehold rights, charges on land etc.
a. The Sea – the right of every member of the public to fish in the sea has long
been recognised by the courts of Sri Lanka but this has been curtailed by
certain statutes e.g. Whaling Ordinance which protects certain species of
whales and the Pearl Fisheries Ordinance which vests the right for fishing
for pearl oysters in the State
b. The Sea Shore – the sea shore is res communes
Attorney General v Pitche – the right to use the sea between high and law water
marks belongs to the public and the Government has no exclusive right to use.
The obligation of the Government in respect of the sea shore is to secure the
public privilege without interruption
Rowel Mudaliyar v Peiris – It is competent for the Crown, by its regularly
appointed agents, to grant licenses to fishermen to spread their nets on the
seashore or on land belonging to the Crown adjacent to the seashore.
Pharo v Stephan – “sea shore” was defined to extend to the furthest line reached
by the sea during the ordinary winter storms
Fernando v Kaluthara Police – On the western coast of Ceylon the furthest line
reached by the sea during the ordinary south-west monsoon storms excluding
exceptional or abnormal floods is the limit of the seashore for purposes of section
2 of the Seashore Protection Ordinance.
State Lands Ordinance – “foreshore” means the shore of the Island of Sri Lanka
between high-water mark and low-water mark;
Tourist Development Act – For so long, and so long only, as any Order is for the
time being in force in respect of any part of the foreshore, the administration,
control, custody and management of that part of the foreshore shall vest in the
Ceylon Tourist Board instead of in the State, and accordingly section 58 of the
State Lands Ordinance shall have effect in that part of the foreshore subject to the
following modification, namely, as though the reference therein to the State were
a reference to the Board.
1. Lakes
State Lands Ordinance – “lake” includes a lagoon, swamp or other collection of
still water, whether permanent or temporary, not being water contained in an
artificial work;
State Lands Ordinance Section 72 – The right to the use and flow and to the
management and control of the water in any public lake or public stream shall,
subject to the restrictions hereinafter mentioned, vest in the State. And in the
exercise of that right, the State, by its officers and servants, may enter any land
and take such measures as may be thought fit or as may be prescribed for the
conservation and supply of such water as aforesaid and its more equal
distribution and beneficial use and its protection from pollution, and for
preventing the unauthorized obstruction of public streams.
2. Public Rivers
State Lands Ordinance Section 76 – the bed of a public lake or public stream is
the property of the State
Fernando v Fernando – all have rights to fish in the waters of the sea and tidal
estuaries connected therewith. A fluctuating and uncertain body of people such
as the inhabitants of a district or section of the district cannot by prescription
acquire a right of fishing against any individual member of the community and
less still against the public itself. The right of a section of the public to fish in the
sea or tidal waters are not governed by prescription but may be regulated by
custom. A custom to be recognized by the court must be a reasonable custom – a
custom which deprives a section of the community of its common law right in the
very matter the custom was supposed to regulate is not a reasonable custom.