The agrarian way formed by joining lands owned by neighbors

Agrarian roads are characterized by having been formed ex collatione agrorum privatorum, that is, through the contribution of the portions of land facing each other to a roadway, and by being intended for the common and exclusive use of a certain category of subjects, that is, by the owners of adjoining land.

Collatio agrorum privatorum causes the portions of land contributed by each owner and used for road formation to give rise to a new asset.

Wanting now to deal with the exercise of the right of first refusal in the presence of agricultural roads, a special case can be mentioned in which there is no provision for exercising the right of first refusal. An issue on which the Supreme Court has found itself deciding (Civil Cassation, sec. III, 8-1-1996, No. 58), which clarified that when land, which constitutes the site of a vicinal road not open to public transit, or a private agricultural road, results from the union of portions detached from neighboring funds, the portions do not remain in the individual ownership of each of the neighboring and contributing owners.

Specifically, the Supreme Court also established the principle that portions of adjoining funds are not subject to an easement of passage in favor of others, but give rise to the formation of a new property, which is the subject of community and enjoyed by all under a common property right.

A right acquired by the contributing owners in their original capacity by virtue of a mere legal fact and without the need for any manifestation of negotiated will: what is relevant is only the circumstance of the actual construction of the road itself.

It follows that land on either side of the vicinal road not open to public transit or the private agrarian road cannot be considered as contiguous to each other, but must be considered as non-contiguous land for the purposes of the institution of agrarian preemption, pursuant to Article 7, Paragraph 2 of Law No. 7 of August 14, 1971. 817 and former Article 8 of the Law of May 26, 1965 no. 590.

According to the Supreme Court’s rulings, the previously outlined case integrates a “via agraria, which is formed ex collatione privatorum agrorum.” In the interpretation of the Supreme Court judges, the aforementioned union of portions of land belonging to different parties would give rise to a communion between neighboring owners; a communion having the characteristics of communio incidens, so that transit through it would take place not iure servitutis, but iure proprietatis.

Moreover, another judgment of the Supreme Court ( ref. Cass. 16.02.1996, No. 1201 ) has also ruled that the presumption of communion referred to in Article 897 of the Civil Code, i.e., that of the ditch interposed between funds owned by the neighbors and used for the drainage of water, is operative even when the cadastral boundary runs along the centerline of the ditch. However, it should be pointed out that according to majority case law, this presumption is excluded when the ditch, runs for its entire length in the inner part of one of the two neighboring funds.

And in fact, the Supreme Court ( among others Cass. Civ. sec. III, 17-12-1991, no. 13558), in order to distinguish the case of the agrarian way created ex collatione privatorum agrorum from that of the funds separated by a drainage canal, considered it necessary to specify that they must be considered as bordering, for the purposes of Article 7, paragraph 2, no. 2, of August 14, 1971 no. 817, two estates even though separated by a channel for the drainage of their waters, when, in the absence of proof to the contrary, this channel is to be presumed to be common, within the meaning of Article 897 of the Civil Code, with the consequence that the estates will be materially contiguous insofar as they are considered to extend up to half of the channel interposed between them.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo