Facts
Richard Erens, owner since the end of 1984 of plot no. 21, brought an action against Elsbeth Thalmann, owner since mid-1985 of the neighbouring plot no. 20, with the aim of judicially establishing the existence of a right of superstructure (Art. 674 CC) or, subsidiarily, an easement of exclusive use of the north-western part of the basement of plot no. 20. The cantonal instances rejected his claim. Erens appealed to the Federal Tribunal.Considerations
The Federal Tribunal dismisses the appeal. It considers that since the entry into force of the Swiss CC on 1 January 1912, the acquisition of an easement by extraordinary prescription is no longer possible on a property registered in the provisional land register of the canton of Thurgau. Indeed, since that date, this register has had the same effects as the federal land register, namely that easements can only be validly constituted by their registration. Although the provisional register has not yet been fully cleared of real rights prior to 1912, this cannot call this rule into question, as the law provides that the cantons may recognize certain effects of their provisional land registers pending the introduction of the federal land register.
The Federal Tribunal thus overrules its previous case law (ATF 105 II 329 et seq.) and aligns itself with the position adopted in ATF…