Cour de cassation

The Court:

So far as the application for review is based on violation of articles 544 ff., 552 ff. Code civil, the rules on ownership and in particular the right to fence one's property, violation by misapplication of art. 1382 ff. Code civil, and violation of art. 7 of the Law of 20 April 1810:

Given that it emerges from the judgment under attack that Coquerel erected on his land where it abutted that of Clément-Bayard a line of wooden structures 16 metres high surmounted by metal spikes, an installation which was of no use for the management of Coquerel's land and was undertaken simply in order to harm Clément-Bayard; and that it could not, in view of its height, be said to be an enclosure in the sense of art. 647 such as an owner is entitled to construct for the protection of his legitimate interests;

Given that on these facts the court was entitled to find that Coquerel was guilty of an abuse of right and to hold him liable to compensate Clément-Bayard for the damage to one of his dirigibles and require him to remove the spikes, and given that it was not inconsistent for the judgment to refuse to order the removal of the rest of the structures, as demanded by Clément-Bayard, since it was not shown that it had yet caused any damage to him or was bound to do so in the future;

Given that these findings provide a statutory basis for the decision, and that in the light of the reasons given it did not violate or misapply the rules of law or the texts mentioned;

For these reasons, DISMISSES the application for review.

Doctrine upheld
Judgement of 3 August 1915: the abuse of the right of ownership gives rise to a right to damages (articles 544 and 1382 of the Civil Code). However, the damage must be certain and cannot be merely possible: no damages can be allocated on the strength of future loss ensuing from the destruction of these pillars on the basis of a court decision. This doctrine must be compared with the principle set by the following judgement, presented by Advocate-General Lindon as a change of doctrine (Civ.1, 4 February 1971, JCP G no. 16781). According to the latter, these two judgements constitute a change of doctrine to the extent that the owner of a building may be held liable "notwithstanding the absence of fault", this being so "by the mere fact that the works or the finished edifice disturb the neighbour beyond the usually acceptable level when living in close proximity". It is true that a judgement (Civ.1, 23 March 1982, Bull. no. 120) has found such strict liability against a builder whose building had caused the partial collapse of an adjacent building. However, from the viewpoint that interests us here (abuse of the right of ownership giving rise to the right to damages based on tortious or quasi-tortious responsibility) the latter two judgements seem in no way to contradict the judgement of 3 August 1915 but rather, on the contrary, to reinforce it by specifying that "the owner’s right to enjoy his property to the utmost, except in the case of usage forbidden by law or regulations, is limited by his obligation not to cause any damage to a third party’s property exceeding the normal disturbances occurring when people live in close proximity” (first case), and that if “the owner neighbouring the one who is legitimately carrying out construction works on his land is (…) bound to accept the normal inconveniences of living at proximity, on the other hand, he has the right to demand compensation when these inconveniences exceed this limit" (second instance). This doctrine (be it the 1915 judgement or the two judgements of 1971) is in any case upheld: see more particularly Civ.2, 19 February 1992, no. 60: "A judgement is not legally justified if, in order to nonsuit a party suing for compensation on the grounds that the works undertaken by his neighbour on the latter's own land have caused him damage, it holds that the plaintiff did not establish that the workers carrying out the works were under his neighbour's orders or that the latter had personally managed them, without investigating whether the presence on the site of the construction companies had [perhaps] been the cause of the inconvenience exceeding the level acceptable in a neighbourhood".

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