Dopuszczalność zasiedzenia służebności gruntowej w perspektywie porównawczej

The aim of the article is to present rules on acquisitive prescription of land easements in a comparative perspective. The article discusses the law of civil and common law jurisdictions (Germany, Switzerland, Austria, France, Italy, Spain, England, Australia, Canada, the United States, and Rome of the classical period). It includes a brief review of the law of adverse possession of land in order to offer some substantive depth. An observation underlying the analysis is that there is a relatively close correlation between the strength of the land registration system adopted in a jurisdiction and the admissibility of land and easement prescription in that jurisdiction. Jurisdictions with strong registration systems (Germany, Torrens jurisdictions) are less likely than jurisdictions with weak registration systems (France, Italy, the United States) to admit prescription, although this is not an absolute rule (see: England). Although some legal systems admit acquisitive prescription of easements and others do not, there is a common core of understanding among most of them regarding what prescription is and how it should operate, if it is to be allowed. This common core can be traced to the Roman rule that land use resulting in prescription must be "nec vi, nec clam, nec precario". Translated into modern language, the use needs to be open and visible, and should lead to the acquisition of the easement only where the landowner has an appropriate opportunity to identify and interrupt the use. Certain Latin European jurisdictions have developed additional conditions for the prescription of easements, namely requirements of continuity (met when no human action is needed for the exercise of the easement) and disclosure of the easement by specific installations. It is arguable that this leads to arbitrary results and excessive curtailment of prescription. The Polish land registration system is a compromise between strong and weak registration systems. It is suggested that the prescription of easements be retained in Poland, as it serves useful social purposes. A general requirement of "nec vi, nec clam, nec precario" should be a guiding principle in Polish law regarding easement prescription, and more detailed requirements, particularly those concerning installations disclosing the use, should be employed cautiously, as they may unduly restrict prescription and produce arbitrary results.