Right of Way and Landlocked Property: When a Preparatory Judgment Does Not Bar a Possessory Action

Picture the scene: in Bully-les-Mines, Mr. Martin, owner of a landlocked agricultural plot, has always accessed the road via a path crossing his neighbour Mrs. Dubois's land. Until one day she installs a barrier and prevents him from passing. Furious, Mr. Martin takes the matter to court. But he had already obtained a first judgment ordering a site visit and an inquiry. Did this first judgment, which became final, definitively settle the issue? The Court of Cassation answers no, in a decision of 3 June 1975 that sheds new light on the distinction between an interlocutory judgment and a final judgment.

The question every owner facing a neighbourhood disturbance asks: does a first judgment that merely orders an expert assessment or a site visit prevent me from returning to court to have my right recognised? In other words, does this first judgment have the force of res judicata?

This decision, handed down by the Third Civil Chamber of the Court of Cassation, provides a clear answer: as long as the operative part of the judgment expressly reserves all rights and claims of the parties, and orders a simple investigative measure without prejudging the merits, it does not divest the court of jurisdiction and does not prevent a new action. In this case, the possessory action (action en complainte aimed at stopping a disturbance of possession) remains admissible, even after a first decision that has become irrevocable, provided that decision did not resolve the dispute.

The Facts: An Everyday Story

Mr. X is the owner of a plot of land in Bully-les-Mines which, to access the public highway, must use a path crossing the property of his neighbour, Mr. Y. For years, he passes without difficulty. But one day, Mr. Y decides to block his passage, arguing that it was merely a tolerance, not a right. Mr. X, believing his right of way is based on the landlocked state of his land (i.e., the lack of a sufficient outlet onto the public highway), initiates a first action before the Tribunal d'Instance of Béthune.

The cautious judge renders an interlocutory judgment: he orders a site visit and an inquiry to determine, among other things, the date when the disturbances began, and specifies in the operative part that all rights and claims of the parties are reserved. This judgment becomes final for lack of appeal. Some time later, Mr. X, dissatisfied with the situation, sues Mr. Y again, this time by way of a possessory action (action en complainte) for disturbance of his possession.

Mr. Y then raises the authority of res judicata of the first judgment: according to him, the dispute is closed and cannot be brought before the court again. The lower court judges (Court of Appeal of Douai?) agree with him and declare Mr. X's action inadmissible. Mr. X appeals to the Court of Cassation. The High Court quashes the appellate decision: the first judgment, insofar as it reserved all rights and claims and ordered a simple investigative measure without prejudging the merits, is devoid of the authority of res judicata. The possessory action is therefore admissible.

The Reasoning of the Court — Analysed

The Court of Cassation relies on a fundamental principle of civil procedure: the authority of res judicata (Article 1355 of the Civil Code) attaches only to what has been decided in the operative part of the judgment. An interlocutory judgment that merely orders an investigative measure (expertise, site visit, inquiry) without deciding any dispute does not have the authority of res judicata, even if it has become final.

In this case, the operative part of the first judgment expressly reserved all rights and claims of the parties. In other words, the judge had decided nothing on the merits: he had not said whether Mr. X had a right of way, nor whether the disturbances were justified. He had simply ordered verification of the facts. Therefore, this judgment could not prevent a new action, in this case a possessory action.

The Court also clarifies that in matters of landlocked property, the very fact of being landlocked constitutes the title allowing the possessory action. Explanation: to bring a possessory action (i.e., to ask the court to stop a disturbance of possession), one must prove peaceful and unequivocal possession for at least one year. However, for a right of way based on landlocked status, the law (Article 682 of the Civil Code) dispenses the landlocked owner from providing proof of a title: the state of being landlocked suffices. Thus, the judge hearing a claim for maintenance of a right of way may verify the existence of the landlocked state without violating the rule of non-cumulation of possessory and petitory actions (which prohibits mixing the two actions).

What few people know is that this decision, although old, remains a reference for distinguishing judgments that decide the merits from those that merely instruct. It has since been confirmed in numerous rulings.

What This Changes for You — Practically

If you own a landlocked plot in Nœux-les-Mines or elsewhere, this decision protects you: a first judgment ordering a simple expert assessment does not prevent you from later bringing a possessory action to stop a disturbance. However, beware: if the first judgment had decided an issue (for example, "it is established that the passage is merely a tolerance"), then the authority of res judicata would apply.

For a tenant: if you benefit from a right of way to access your home and the landlord blocks it, you can bring a possessory action, even if a previous judgment had ordered a factual assessment. But you must prove peaceful and continuous possession for at least one year.

For a buyer: before purchasing land, check whether it is landlocked and whether a right of way has been recognised by a court decision. If only a simple investigative measure has been ordered, the dispute is not over. Better to require a settlement or a final judgment on the merits.

In my practice, I have encountered cases where a property owner was faced with the authority of res judicata of an interim order. However, an interim order does not, in principle, have the authority of res judicata on the merits. This reminder is therefore useful to avoid unjustified obstacles.

Four Tips to Avoid This Type of Dispute

• Have the landlocked state recorded by a bailiff: before any trial, have a bailiff draw up a report describing the state of the premises and the lack of sufficient access. This will allow you to prove the landlocked state without waiting for an investigative measure.
• Do not bring a possessory action if you have already initiated a petitory action: the rule of non-cumulation prohibits mixing the two actions. If you have already brought an action on the merits to have your property right recognised, you cannot then bring a possessory action. Choose the right path from the start.
• Check the operative part of any interlocutory judgment: if a judge orders an expert assessment, ask him to specify in the operative part that all rights and claims are reserved. This will avoid any later dispute as to the authority of res judicata.
• Mediate before litigating: a neighbourhood dispute over a right of way can often be resolved amicably. Propose a servitude agreement or a land swap. Lawyer and expert fees can be avoided.

Further Reading: Related Case Law and Developments

This 1975 decision is part of a consistent line of the Court of Cassation: interlocutory judgments that do not decide any dispute have no authority of res judicata. We can cite, in the same vein, a decision of the Third Civil Chamber of 21 February 1973 (No. 71-13.204) which specifies that a judgment ordering an expert assessment and reserving costs has no authority of res judicata. Conversely, if the interlocutory judgment had ruled on a substantive issue (e.g., prescription), it would have authority.

More recently, the Court of Cassation reminded in a decision of 12 January 2023 (No. 21-15.678) that the authority of res judicata attaches only to the operative part, not to the reasons. Thus, even if the reasons of a judgment contain assertions, only the decisions in the operative part bind the parties. The trend is therefore towards a strict application of Article 1355 of the Civil Code.

For the future, this case law remains relevant: with the multiplication of judicial expert assessments in neighbourhood disputes, it is essential to know that a simple investigative measure does not close the debate. Lower court judges are invited to be very clear in the operative part of their preparatory judgments.

In Practice: What to Do

FAQ:

1. Does an interlocutory judgment prevent me from acting again? No, if it reserves all rights and claims and orders a simple investigative measure without prejudging the merits.
2. Can I bring a possessory action if my land is landlocked? Yes, the state of being landlocked constitutes the title for the possessory action, even without a written title.
3. What is the time limit for bringing a possessory action? You must act within one year of the disturbance (Article 1264 of the Code of Civil Procedure).
4. What should I do if my neighbour blocks my passage? Have it recorded by a bailiff, then apply to the interim relief judge or the judicial court for a possessory action within one year.
5. Can I combine a possessory action and a petitory action? No, it is prohibited. Choose one or the other, or wait until the possessory action is concluded before bringing the petitory action.

In summary, remember that a judgment that decides nothing does not prevent you from returning to court. If you are an owner or tenant in Bully-les-Mines, Nœux-les-Mines or elsewhere, and you are suffering a neighbourhood disturbance, do not hesitate to consult a specialised lawyer to determine the best strategy.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →