Facts
The owners of parcels no. 11, 44, 66, 2455 and 2477 established a right of way by contract dated July 17, 1952. This right of way was modified in the 1970s during the reconstruction of parcels no. 11 and 44, with the passage now being arranged through a 2.75 m high tunnel on parcel no. 44. Applicant X. acquired parcel no. 2477 burdened with this right of way in 2008. He then requested the restoration of the initial right of way, which the cantonal courts rejected. The FC upholds this rejection.Considerations
According to case law, the content and scope of a right of way can be determined by a visible physical installation, such as a tunnel here. Even if the land register only generally mentions a "right of way", the third-party acquirer cannot rely on this registration if he was able to observe the actual characteristics of the passage on site.
In the present case, the applicant was able to observe the existence of the tunnel and its dimensions during the visit of the property before its acquisition. He cannot therefore invoke his good faith in…