Rejection of the dominant landowner's request to participate in the construction costs of an access necessary for the exercise of the easement

Facts

In April 1998, D., the owner of plot x, sold plot y to A., who established in the same notarial deed a right of pedestrian and vehicular passage in favor of plot x. During the construction of his plot in the spring of 1999, A. had an access road burdened with this easement constructed.

In March 2002, A. sued D. in court and asked him to contribute 30'143 francs to the construction of this access road. The Preteur granted this request, but the Court of Appeal of the Canton of Ticino subsequently rejected the application.

A. then appealed to the Federal Tribunal, which ultimately rejected his appeal.

Considerations

The Federal Tribunal considered that Art. 741 para. 2 CC, which governs the allocation of maintenance costs for structures necessary for the exercise of an easement, does not apply by analogy to the construction costs of such structures. According to doctrine and case law, the owner of the dominant estate may construct at his own expense the structures he needs to exercise the easement, without being able to demand a contribution from the owner of the servient estate.

In the present case, the…