Such cases occur regularly in the courts amid rural disputes where the line between mere tolerance of passage and a true legal right of way is often blurred.
The question before the court was whether a right of way applies to a person or to the land?
The case concerned an owner of a plot of land and her neighbor, a farmer, and his tenant farmer who cultivated the adjacent fields.
The landowner accused her neighbors of crossing her land, without any legal entitlement, in order to reach their fields, and she sought a court order prohibiting this passage.
In response, the farmer and his tenant claimed that a right of way (servitude of passage) existed — either by agreement or, failing that, as a legal right of way arising from enclosure, on the grounds that their property allegedly had no sufficient access to a public road. In the case of enclosure, the specific consent of the landowner must be obtained.
The appeal court, ruling after a previous referral, accepted their argument, holding that the farmer benefited from a legal right of way due to being landlocked, since he could not use a nearby track owned by a landowners’ association of which he was not a member, albeit the tenant farmer used the track.
The landowner appealed to the Cour of Cassation, which overturned the decision.
In giving their judgement the court referred to Articles 637 and 682 of the French Civil Code:
“A servitude is a charge imposed upon one property for the use and benefit of another property belonging to a different owner.”
By granting a right of way personally to the farmer without expressly linking it to a specific parcel of land, the appellate judges misapplied the law.
In other words, it is not the farmer as an individual who may benefit from the right of way, but the plot of land s/he owns
The Supreme Court therefore remanded the case to the Court of Appeal, emphasising that a servitude can only exist for the use and benefit of a specific tract of land, not for the convenience of its owner.
The mere fact that a farmer or tenant has long crossed another’s property does not establish a right of way. Only the enclosure of the land — not the needs of the individual — can justify a legally recognised right of way.
The Court reaffirmed that a tenant under a rural lease cannot independently claim a legal right of way. Because the tenant does not own the property, he lacks standing to demand the establishment of a right of way.
Accordingly, in this case, the claim for a legal right of way due to enclosure was not granted to the tenant farmer.
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