Order No. 9195 of 2024: Partial Use of Easement and its Legal Significance

The recent Order No. 9195 of April 6, 2024, from the Court of Cassation, presided over by M. Mocci and with R. Guida as rapporteur, offers important clarifications on the matter of praedial easements. In particular, the Court addressed the issue of partial use of an easement and its legal implications, establishing that such use does not lead to the extinction of the easement right, even if prolonged over time. This principle is of great relevance to parties involved in disputes concerning easements and rights of way.

Context of the Ruling

In the case at hand, the Court upheld a ruling by the Court of Appeal of Bologna which had excluded the partial extinction of a right of way easement, despite the narrowing of the road by the owner of the servient tenement. This narrowing had been carried out by installing plants and building a small wall. The Court affirmed that, although the use of the easement was limited, the right itself could not be considered extinguished.

The Ruling's Principle

The partial use of an easement, even if prolonged over time, does not reduce its scope to the extent of lesser utility compared to that permitted by the title, as only the right itself can cease due to non-use, while the greater portion that has not been used by the easement holder is not a right, but a component thereof, and thus is not subject to extinction. (In this case, the Supreme Court confirmed the lower court's ruling which had excluded the extinction, even partial, of the right of way easement due to a narrowing of the road used to exercise it, carried out by the owner of the servient tenement through the placement of plants and the construction of a small wall).

Legal and Regulatory Implications

This pronouncement is based on provisions of the Italian Civil Code, particularly Articles 1073, 1074, and 1075, which govern easements. The Court clarified that partial use of an easement does not lead to its extinction, but rather to a limitation in the exercise of the right, which nevertheless remains valid and active. Therefore, easement holders must be aware that any physical limitations cannot reduce their original right, except in cases of extinction due to prolonged non-use.

• The right of way easement remains valid even in cases of partial use.
• Physical limitations do not extinguish the easement right.
• Non-use does not cause the extinction of the right, but only a temporary limitation thereof.