Jurisdiction of Courts in Public Water Disputes: Commentary on Order No. 21495 of 2024

Order No. 21495 of July 31, 2024, issued by the Court of Cassation, addresses a crucial issue concerning jurisdictional competence in disputes relating to the boundaries of the riverbed and banks of public watercourses. Specifically, the Court ruled that jurisdiction lies with the regional public water courts when a technical investigation is necessary to determine the public nature of the land in question.

The Specific Case and the Court's Decision

In this case, the appeal concerned a dispute regarding the usucaption of land coinciding with the riverbed of a stream. The Court held that, in order to resolve the issue, a technical investigation was essential to verify whether the land fell under the water domain or had lost this status due to the withdrawal of water or tacit de-domanialisation. Therefore, it rejected the appeal, confirming the jurisdiction of the regional public water court.

Determination of the boundaries of the riverbed and banks of a watercourse - Related disputes - Jurisdiction of regional public water courts - Discriminatory criterion for subject-matter jurisdiction - Specific case. For the purpose of allocating jurisdiction between the ordinary judge and the regional public water court, in cases of disputes concerning the boundaries of the riverbed and/or banks of public watercourses, the discriminatory criterion lies in the necessity, or lack thereof, of technical investigations to establish whether the area of land whose public nature is being discussed falls within the riverine or lacustrine water domain, as only where such an investigation is not necessary does the ordinary judge have jurisdiction, regardless of whether the issue is prejudicial, merely incidental, or raised by way of exception, as only where such an investigation is not necessary does the ordinary judge have jurisdiction. (In the specific case relating to a usucaption judgment concerning land coinciding with the riverbed of a stream and its related bank areas, the Supreme Court rejected the appeal on the grounds that the regional public water court had jurisdiction due to the necessity of a technical investigation aimed at establishing whether the area still fell within the water domain or had lost this quality due to the withdrawal of the aforementioned stream's waters or tacit de-domanialisation).

Implications of the Decision

This order highlights a fundamental aspect of Italian jurisprudence concerning the management of water resources and the protection of public domain assets. The discriminatory criterion between the ordinary judge and the regional public water court is of particular relevance to legal professionals, as it clarifies the circumstances in which technical intervention is required to resolve disputes. It is important to note that jurisdiction is not limited solely to the merits of the case but also encompasses the need for technical assessments, making the distinction between the two jurisdictions clear.

Conclusions

In conclusion, Order No. 21495 of 2024 represents an important reference for understanding the legal dynamics related to public watercourses and court jurisdiction. It underscores the importance of a thorough analysis of technical issues that can influence jurisdiction, highlighting how the correct attribution of competence can ensure more effective management of disputes related to water resources. Legal professionals and sector operators must pay attention to these guidelines to better navigate disputes involving the water domain.