Acquisition of an Easement by Extraordinary Prescription Against a Property Registered in the Cantonal Land Register

Facts

Peter Locher, Pius Käser, and Albert Käser are the owners of three contiguous parcels in the municipality of Bösingen (Canton of Fribourg). A spring located on Albert Käser's parcel 916 supplies a pipeline that crosses Pius Käser's parcel 907 up to the boundary of Peter Locher's parcel 889 aaa, where there is a manhole with pipes leading to the houses of Pius Käser and Peter Locher.

In the cantonal land register, Pius Käser's parcel 907 is encumbered with a "pipeline" in favor of Peter Locher's parcel 889 aaa. Conversely, Albert Käser's parcel 916 is encumbered with a right of spring and passage in favor of Pius Käser's parcel 907. Finally, a "right of excavation for the pipeline" is registered in favor of Peter Locher's parcel 889 aaa and burdening Paul Poffet's parcel 16.

Peter Locher filed an action with the District Court of Singine against Albert and Pius Käser, requesting that the existence of a right of spring, fountain manhole, and pipeline be established in favor of his parcel 889 aaa, burdening Albert Käser's parcel 916, as well as a right of pipeline and manhole in favor of his parcel, burdening Pius Käser's parcel 907, and that these rights be registered in the land register.

Considerations

The District Court dismissed the claim, considering that the plaintiff had not proven the acquisition by extraordinary prescription of the easements before the entry into force of the Swiss CC on January 1, 1912, and that the acquisition by extraordinary prescription of an easement burdening a property registered in the land register was excluded according to Arts. 662 and 731 CC.

On appeal by the plaintiff, the Cantonal Court ruled that the plaintiff had acquired the easements by extraordinary prescription after…