Property And Abnormal Neighborhood Disorders
LexInter | December 2, 2008 | 0 Comments

Property And Abnormal Neighborhood Disorders

FRENCH REPUBLIC 
IN THE NAME OF THE FRENCH PEOPLE

Gives note to the companies Biena, Denentzat and Eldu and to Mr X … that they withdrew their appeal as directed against the company Inter coop;

Whereas, according to the judgment under appeal (Pau, April 8, 2002), that, complaining of various nuisances resulting from the installation, in front of their dwelling house, of a shopping center, Mr. and Mrs. Y .. . have, after an expert appraisal ordered in summary proceedings, assigned Mr X …, owner of the land on which this center was built, and the companies Eldu, Denentzat and Biena in order to obtain the execution of specific works to remedy these troubles as well that the payment of damages;

that a tribunal de grande instance accepted some of their requests;

On the second plea, taken in its first part, the third plea and the fifth plea, taken in its first part, of the main appeal, together:

Whereas Mr X … and the companies Eldu, Denentzat and Biena object to the confirmatory judgment of having ordered them to pay Mr and Mrs Y … a certain sum as damages for “visual disturbance” caused by an EDF transformer and the uprooting of plantations, to plant new trees, under penalty, and to restore to their initial state, also under penalty, the accesses to one of the establishments of the shopping center then, according to the means:

1 / that the right to property is guaranteed by the Additional Protocol to the European Convention on Human Rights; it is constant, and the Court of Appeal raises it, that Mr X … ceded to EDF a right occupation definitive on the plot on which is placed the litigious transformer; whereas considering nevertheless that Mr X … had to be held responsible for the disturbance caused by the installation of the transformer, pretext taken from what he had ceded rights of occupation on the ground in question and that the choice of this ground to him belonged, the Court of Appeal violated Article 1 of the First Additional Protocol to the European Convention on Human Rights and Article 1382 of the Civil Code;

2 / that the right to property, guaranteed by the Additional Protocol to the European Convention on Human Rights, allows the owner to use his land as he sees fit; by reproaching Mr X … for having uprooted trees planted by him on his land, the Court of Appeal violated Article 1 of the First Additional Protocol to the European Convention on Human Rights and Article 1382 of Civil Code ;

3 / that the Court of Appeal notes that no building permit issued to Mr X … imposed plantations; that the court of appeal notes that the ground of Mr X … and that of the spouses Y … are in an area surrounded by an area UB, that is to say highly urbanized; that considering that Mr X … had committed a fault generating a neighborhood disturbance by tearing the trees from his land, thus depriving the spouses Y … of views on these trees, the court of appeal did not drawn the legal consequences of its findings with regard to Article 1 of the First Additional Protocol to the European Convention on Human Rights as well as with regard to Articles 544 and 1382 of the Civil Code;

4 / that the right to property, guaranteed by the European Convention on Human Rights, allows the owner to use his property as he sees fit; by accusing Mr X … of having enlarged the access ground for trucks by intervening in his private domain, the Court of Appeal violated Article 1 of the First Additional Protocol to the European Convention on Human Rights and article 544 of the Civil Code;

But given that the right to property, as defined by article 544 of the Civil Code and protected by article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, is limited by the principle that no one should cause any abnormal neighborhood disturbance to another;

that this restriction does not constitute a disproportionate interference with the right protected by the aforementioned Convention;

From which it follows that the plea is unfounded;

On the second plea, taken in its second and third parts, the fourth plea, and the fifth plea, taken in its second and third parts, of the main appeal, together, as reproduced in the annex:

Whereas, under cover of unfounded complaints of lack of response to conclusion and violation of Articles 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1382 of the Civil Code and L. 2224-13 of the Code of local authorities, the means only tend to call into question before the Court of Cassation the sovereign assessment by the Court of Appeal of the existence of abnormal neighborhood disturbances resulting from the installation of a transformer on the property of Mr X … and of garbage deposits in limit of this property and the repair of the damage resulting from these disturbances;

And given that it is without violating the principle of the separation of powers, the judicial judge having jurisdiction to know the occupation without right or title of the public road domain and its dependencies, that the court of appeal ruled on the request for rehabilitation of access to one of the establishments of the shopping center, that Mr. and Mrs. Y … had quality to present, repairing the damage resulting from nuisances they suffered;

From which it follows that the means can only be discarded;

And there is no need to rule on the first plea of ​​the main appeal and the single plea of ​​the cross-appeal which would not be such as to allow the appeal to be admitted;

FOR THESE REASONS :

DISMISSES the appeal;

Condemns Mr X … and the companies Biena, Denentzat and Eldu to the costs;

Considering article 700 of the new Code of civil procedure, rejects requests of Mr X … and companies Biena, Denentzat and Eldu, on the one hand, spouses Y …, on the other hand;

Thus done and judged by the Court of Cassation, Second Civil Chamber, and pronounced by the president in his public hearing on the twenty-third of October two thousand and three.

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