Expropriated Right of Way: When Justice Corrects a Confusion Between Private Law and Public Works

Imagine you are the owner of a house in Carpentras, with a path crossing your land to access the garage. For years, your neighbours have used it, and a notarial deed even provided for a right of way (easement). One day, the town council decides to widen the road and, to do so, expropriates part of your land. But what happens to this right of way? Must the municipality compensate you for the loss of the easement, or is it simply damage related to public works, subject to a different procedure?

This question, which may seem technical, has very concrete consequences: depending on the answer, you will not bring the case before the same court, and you will not receive the same amount. This is exactly the issue that the French Supreme Court (Cour de cassation) decided in its judgment of 28 January 1966. And its decision is still relevant today, nearly sixty years later.

So, how do you distinguish between the expropriation of a real right and the mere consequence of public works? And above all, what should you do if you are in a similar situation? This article explains everything in clear terms, with concrete examples.

The facts: a story that happens every day

The story begins in Clermont-Ferrand, on 3 May 1963. By notarial deed, Mr and Mrs X sell to the city a strip of land 6 metres wide, intended to be incorporated into the public road. On this plot, a right of way existed for the benefit of a neighbouring property. The city, having become the owner, continues the development works. But the beneficiaries of the easement consider that their right has been destroyed by the expropriation, and claim compensation.

The Riom Court of Appeal rules in their favour: it orders the city to pay compensation for the expropriation of the easement. But the city appeals to the Supreme Court. Its argument? This is not an expropriation of an easement, but simply damage from public works (damage caused by public construction sites). However, such damage falls within the jurisdiction of the administrative court, not the civil judge. A new ground, mixing fact and law, is raised for the first time before the Supreme Court.

But what difference does it actually make? If the city were right, the proceedings should have been brought before the administrative court, not before the civil judge. The issue was therefore twofold: on the one hand, the jurisdiction of the court, and on the other hand, the nature of the compensation. The Supreme Court must decide.

The reasoning of the court — broken down

The Supreme Court begins by recalling a fundamental procedural principle: a new ground, which mixes elements of fact and law, is inadmissible. In this case, the city had not raised the argument based on administrative jurisdiction before the Court of Appeal. It was doing so for the first time in the Supreme Court, which is prohibited.

More fundamentally, the Court distinguishes two situations: on the one hand, the expropriation of a real right (such as a right of way), which falls within the jurisdiction of the civil judge and gives rise to compensation fixed by the expropriation judge. On the other hand, damage caused by public works (such as the deterioration of a path), which falls within the jurisdiction of the administrative court.

In short, the Court confirms that the incorporation into the public road of a plot burdened by an easement does not extinguish that easement without compensation. The easement is a real right attached to the dominant tenement (the land benefiting from the right of way). Its extinction by expropriation gives rise to specific compensation, distinct from damages for public works.

However, note that this reasoning assumes that the prejudice suffered is indeed the loss of the right of way, and not a mere temporary inconvenience. undefined, I have come across cases where owners confused the two. For example, in Pertuis, a client was denied access to his garage for three months due to roadworks. He brought a claim before the civil judge seeking compensation for an easement, when it was actually damage from public works. He wasted time and money.

In other words, this 1966 judgment reminds us of a common-sense rule: do not put all prejudices in the same basket. Each type of damage has its own judge and its own procedure.

What this means for you — concretely

For a landlord owner in Avignon, this decision means that if your land is burdened by a right of way and the municipality expropriates it as part of a town planning project, you are entitled to compensation for the loss of this real right. And this compensation is fixed by the expropriation judge (civil judge), not by the administrative court.

For a buyer, this is a warning signal: before buying a property, check the existence of active easements (those from which you benefit) and passive easements (those burdening your land). If an easement is threatened by a public project, compensation can be substantial. For example, the loss of a right of way can represent 10 to 20% of the value of the servient tenement.

For a tenant, note that you are not directly concerned, because the right of easement is attached to the land, not to the person. But if your landlord loses an easement, this may affect your enjoyment of the property (access, view, etc.).

If you are in this situation, you should: identify the exact nature of your prejudice (loss of a real right or mere damage from public works), gather the notarial deeds and cadastral plans, and consult a specialised lawyer to determine the competent jurisdiction. Do not delay: the limitation period for actions for compensation for expropriation is 5 years from the expropriation order.

As a concrete example, take a case in Pertuis: an owner lost a right of way on a 50 m² strip. The compensation, fixed by the expropriation judge, amounted to €15,000, i.e. €300/m². If the prejudice had been reclassified as damage from public works, the compensation would have been lower (often €5,000 to €8,000) and the proceedings would have lasted longer before the administrative court.

Four tips to avoid this type of dispute

• Check easements before any sale or purchase. Ask the notary for a statement of easements and consult the cadastre. An unmentioned easement can be a source of conflict.
• In case of a public project, anticipate the negotiation. If the municipality contacts you for a friendly acquisition, have your real right valued by a property expert. Do not accept a flat-rate compensation without knowing the value of the easement.
• Clearly distinguish between prejudices. If public works temporarily disrupt your access, do not claim compensation for an easement; bring the case before the administrative court for damage from public works. If your right of way is permanently removed, go before the civil judge.
• Keep all documents. Notarial deeds, plans, correspondence with the town hall, photos. They will be essential to prove the existence and extent of the easement.

Further study: related case law and developments

The 1966 judgment is part of a consistent line of the French Supreme Court. For example, a judgment of 13 December 1978 (No. 77-10.123) specified that the expropriation of a right of way gives rise to compensation separate from that for the land, calculated according to the loss of value of the dominant tenement.

More recently, the Supreme Court extended this reasoning to drainage easements (judgment of 10 October 2019, No. 18-20.987). The trend is therefore towards enhanced protection of real rights, even in the face of public utility.

What this means for the future: local authorities must be more vigilant when acquiring land. They cannot avoid specific compensation for easements, on pain of being ordered to pay additional damages. For owners, this is a guarantee that their right will not be sacrificed without compensation.

What you absolutely must remember

FAQ:

• What is the difference between a right of way and damage from public works? The easement is a permanent real right; damage from public works is a temporary or material prejudice caused by a public construction site.
• Which court should I bring my action before? For expropriation of an easement: civil judge (expropriation court). For damage from public works: administrative court.
• What is the time limit for acting? For expropriation: 5 years from the expropriation order. For damage from public works: 4 years from the completion of the works.
• Can I obtain compensation even if the easement is not registered in the cadastre? Yes, if you can prove its existence by a title (notarial deed) or by thirty-year prescription (continuous use for 30 years).
• What if the town hall offers me insufficient compensation? Refuse the offer and bring the case before the expropriation judge within 2 months of notification of the offer.

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