Easement of public use on a private road: the burden of test is up to the Municipality

The ruling of the Tar Marche: Principles reiterated

The Marche judges, with the sent. March 7, 2025, n. 150 of the Tar Marche, section II, they said that it is now peaceful jurisprudential principle (2) that according to which:
a) based on the general principle referred to in art. 2697 cc, the burden of proof regarding the limitation of dominical law for public uses looms for those who affirm their subsistence;
b) the existence of a right of public use of the asset cannot arise for mere conclusive facts, but presupposes a suitable title for this purpose;
c) in particular, where the property of the road sedime does not belong to a public entity, but to a private individual, the proof of the existence of public use it cannot descend from simple presumptions or from mere public use in fact of the road, but necessarily presupposes a public or private actas an administrative measure, an agreement between owner and administration or a testament;
d) it follows that, so that a private road can be considered of public use, it is not enough that it can serve as a connection with a public path and is used for the transit of people other than the owner.

The ruling of the Tar Marche, sec. II: specific case

Public use must exclude in the event that the municipal administration itself, with an internal note signed by the head of the urban area, states that, despite being the street listed between the municipal roads, The ownership of the soil is still in the end of the private individuals of the lots.

Indeed, “The Supreme Court clarifies that a private road can legitimately consider itself enslaved for public use, for the purposes of exemption from compliance with the distances established by articles 873 and 878 cc, if the aforementioned use finds title in one agreement between the owners of the road ground and public bodythat is, he lasted throughout the time needed to usucapion. To this end, the public nature of the road (or of the use that, of it, makes the community) must be identified under strictly legal profiles, so that, in the absence of specific conventions between private individuals and PAs, its destination to the public transit must be at all unequivocal, since there is no mere use by subjects, albeit different from the owners, according to the use of only singuli behavior, and not also in the case of a passage. aimed at accessing housing units, offices or shops located on private soils (Cass. Section 2, sentence no. 9077 of 16/04/2007; Section 2, sentence no. 8619 of 29/08/1998). ‘ (Cass. Civ. 36146/2022)“(Civil Court of Cuneo, 13 March 2023, n. 198).

Not even they detect, as a constitutive fact, the City Council resolutions with which the registration of the road had been ordered in the list of public or burdened public use, given that this act has merely declarative nature(3), with the consequence that the existence of public use must be deduced and proven through further acts and behaviors.

The ruling of the Piedmont TAR: value to be attributed to the registration of a road in the list of vicinity

The Piedmontese judges, with the sent. March 12, 2025, n. 488 of the Piedmont Tar, section II, after recalling that the exercise of the publicist power of self -protection requires the rigorous demonstration by the administration of the existence of the easement of public use on the private road(4), however, they highlighted that, pursuant to art. 20 All. F, l. March 20, 1865 n. 2248, the registration of a road in the list of neighborhood streetsin the absence of proof contrary, constitutes a presumptive element of the right of public transit on the road. This registration therefore has a only reconnaissance and declarative value, but not constitutiveof the pretense public servitude and constitutes the relative presumption of the existence of servitude, so that The private individual always has the opportunity to offer the opposite proof of the inexistence of the same (5).

Likewise, they have no opposite valuein itself considered, nor the cadastral maps(6), nor the forecasts of the urban planning instrument (See Cons. State, Section V, 06/09/2022, n. 7761), since it is only presumptive indices to be subjected to a unitary and global evaluation together with any other symptomatic elements of the existence of a easement of public use (including, for example, the use of the way by an indefinite number of people, its possible location within the inhabited places, the maintenance activity carried out over time. by the entity, the behaviors held by the same administration, the subjugation of citizens to the practices determined by these behaviors (7)).

The ruling of the Piedmont TAR: competing elements for the recognition of the public use of a road

The recognition of the public use of a road In fact, for consolidated jurisprudence (8) requires three competitors:
a) l‘exercise of the passage and transit Jure servitutis Publicae by an indistinct multitude of people, qualified by belonging to a territorial area;
b) the concrete suitability of the road to satisfyalso for the connection with the public street, The needs of a general and public nature;
c) a valid title to support the affirmation of the right of public use, which can consist of a administrative measurefrom one Convention between the owner and the administrationfrom a willfromPurchase for twenty -year usucapioneor from protraction of use since time immemorial by the community, marked by the belief of exercising the right of use of the road. In the absence of a suitable title, it must therefore be excluded that transit by people other than owners (especially if sporadic and occasional) is sufficient to demonstrate the existence of the easement of public use, even if the private road can serve as a connection with public roads (9).

The ruling of the Piedmont TAR: specific case

In the present case, the existence of the easement of public use on a local road, according to the Municipality, derived from the mere inclusion of the same in theList of municipal roads and also by the representation of the road track in cadastral maps and prg works municipal, as well as by the fact that the initial stretch of the road would be asphalted and equipped with undergroundas well as reached by the door -to -door service. The judges, on the other hand, were of the opposite notice.

Firstly, the cadastral maps merely identified the route of the road in question up to the bank of a stream, without, however, any additional indication from which the existence of its public use could be drawn; Secondly, the road was asphalted and equipped with underground services only in the initial section; Third, the final part of the road was almost imperceptible and long abandoned.
In other words, they had not emerged:

• The very existence of the final stretch of the Vicinal Road (only cartographically represented by the cadastral maps and by the PRG works);
• the effectiveness of the axled use of this final stretch by the community;
• The concreteness and topicality of public utility obtainable from the hypothetical achievement of the bank of a stream;
• the existence of a suitable constitutive title of the pretense public servitude (at least for use since time immemorial).

Notes

(1) TAR Lombardy, Milan, section IV, sent. 28 December 2024, n. 3379;
(2) Former MultisCouncil of State, section VI, sent. 10 October 2022, n. 8652; Section V, sent. 12 May 2020, n. 2992; sent. October 16, 2017, n. 4791 and sent. February 16, 2017, n. 713.
(3) Civil Cassation, section I, sent. 17 July 2024, n. 19784 and sent. July 15, 2020, n. 15033; Section United, sent. January 27, 2010, n. 1624.
(4) See Council of State, section VI, sent. May 19, 2016, n. 2708; Tar Veneto, section II, sent. 29 October 2018, n. 1011; Tar Lazio, Rome, section II, sent. 5 October 2015, n. 11478.
(5) Council of State, section II, sent. June 22, 2022, n. 5126.
(6) Council of State, section II, sent. 1 July 2024, n. 5811.
(7) Council of State, section V, sent. September 6, 2022, n. 7761.
(8) Council of State, section II, sent. November 3, 2023, n. 9521; sent. June 22, 2022, n. 5126; Section V, sent. October 16, 2017, n. 4791.
(9) Council of State, section II, sent. 1 July 2024, n. 5811.