Facts
Parties and authorities: the civil appeal was filed by ten condominium co-owners (the plaintiffs at cantonal level, here 'the appellants') against the judgment of 10 September 2019 of the First Civil Chamber of the Court of Appeal of the Canton of Ticino (11.2014.78/79). The respondents are the heirs of [U.] (who joined the proceedings) and the Municipality of [X.] .
Factual background: on 4 April 1963 the owner of plot no. 1519 RFD of [Y.] (dominant land) and the company [M. SA] , owner of the adjoining plot no. 296 (servient land), established by public deed two easements: a right of surface for the construction and maintenance of a garage, and a right of way (pedestrian and vehicular) to access it. The attached site plan distinguishes the perimeter of the garage from the access area. The easements were entered in the land register as 'surface - garage' and 'way with motor vehicles and pedestrian'.
The garage was built in 1964 across the two plots, along the access road (plot no. 1479), on two levels because of the steep difference in elevation: the garage on the upper level, accessible via a ramp, and on the ground floor a portico and other rooms (kitchen/bar, storage room with technical installations).
On 30 May 1994 the owners of the two land parcels entered into a contract clarifying and implementing the easement, recorded in the land register, under which the object of the right of surface 'is to be understood as also including the entire area beneath the garage', the owner being able to arrange it at its own discretion. The site plan attached to that contract is irrelevant for the right of surface.
Dispute: disagreements arose concerning the possibility of parking on the ramp and of fencing the surface. By petition of 23 April 2004 the ten co-owners brought an action for a declaratory judgment of easement and a negative action against the owners of the dominant land. By decision of 22 July 2014 the District Judge of Lugano partially upheld the petition, declaring that the ramp is subject only to a right of way and prohibiting interference with the plaintiffs' possession (threat of penalty under art. 292 SCC).
Cantonal decision: on appeal by the defendants, the Court of Appeal joined the cases, declared the appeal of [O.] inadmissible and upheld that of [U.] , dismissing the petition. According to the cantonal court, the right of surface extends also to the subsoil and to the ramp, because the ramp and the structure beneath it form a structural unit; a different regime for the ramp would be contrary to art. 675 para. 2 CC and to the case law of DTF 111 II 134.
Appeal to the Federal Supreme Court: the appellants primarily requested the dismissal of the appeal and confirmation of the district judge's decision, and subsidiarily remittal. They complained of arbitrary establishment of the facts (structural unity), violation of art. 8 CC (burden of proof), and violation of arts. 675, 738 para. 2 and 779 CC (unlawful extension of the right of surface to the ramp, with a request for partial nullity). The appeal was granted suspensive effect; no submissions on the merits were requested.
Questions of standing: the cantonal court had left open the questions of active and passive standing, questions which the Federal Supreme Court did not consider necessary to resolve.
Considerations
Admissibility and scope of review: the civil appeal is admissible (arts. 72, 74 para. 1 let. b, 75, 76, 90, 100 FSCA), as it concerns a pecuniary matter with an amount in dispute of CHF 100,000 against a final decision of the last cantonal instance. The Federal Supreme Court applies the law of its own motion, but examines only sufficiently substantiated complaints (art. 42 para. 1-2 FSCA); for violations of fundamental rights and of cantonal law, stricter requirements of substantiation apply (art. 106 para. 2 FSCA). The facts established by the lower authority bind the Federal Supreme Court save for arbitrariness (art. 105 para. 1-2 FSCA).
Principles on the interpretation of easements: according to art. 738 CC, the content of an easement is to be determined primarily from its land register entry; if this is unclear, incomplete or summary, reference is made to the founding act and the site plan; subsidiarily, the prolonged, peaceful and good-faith manner of exercise is considered. The founding act must be interpreted according to the real and common intention of the parties (art. 18 para. 1 CO) or, if this cannot be ascertained, according to the principle of reliance. However, against third parties in good faith who relied on the land register, an unrecognisable subjective intention cannot be invoked (art. 973 para. 1 CC).
Establishment of the facts and arbitrariness: the complaint of arbitrariness concerning the structural unity between the ramp and the structure beneath it is inadmissible, because the appellants merely refer to the record of the site inspection without engaging with the photographs attached, which the cantonal court relied upon for its finding, nor with the assertion that the structural unity would exist even without the unauthorised storage room. Moreover, no functional…