The service seat run does not even start the construction of the transmission system. This is at the heart of the latest ultimate Court ruling, crucial for thousands of land owners with transmission installations (planted 30 years ago or formerly), threatened by the ruling to sit service to the transmission company and consequently free use.
This issue arose in the case of an energy company's request to establish a seat for it under the power line with a pole on a private plot.
The device must be visible
The Płock territory Court refused the applicant. It considered that the acquisition by sitting down ground service with transmission service content (complicated name follows that the old installations created erstwhile the transmission service was not formally provided) in the form of a ‘use of a durable and visible device’ in the case of an overhead power line, were only fulfilled erstwhile the power transmission via that device began.
The Court of First Instance besides pointed out that the company had not provided any papers confirming at least the procedural receipt of the method pillar, which confirmed that the installation had not gained the value of ‘visibility’ by July 1988.
In accordance with Article 292 of the civilian Code, ground service, and so transport, may be acquired by sitting (after 30 years) only if it involves the usage of a durable and visible device.
Building is not sitting
Dissatisfied with the refusal of the S O company did not quit and appealed to the ultimate Court, but this 1 did not divide her charges. He pointed out that, pursuant to Article 292 KC, transmission services involving the usage of a permanent and visible device may arise as a consequence of sitting, but the legislature did not explain what it meant by ‘persistence’ and ‘visibility’. In this way he avoided unnecessary causistic approach erstwhile assessing whether a peculiar plan could already be considered a device.
However, there is no uncertainty – he pointed out to the SN – that the entry of the transmission undertaking into the ground and the start of work on the construction of the power pole do not yet give emergence to the recognition of these activities with respect to the usage of the burdened land in specified a way as would be the case of a service provider. By 1988, the company had only obtained access to the property of its owners, and there was no indication that it would enjoy full service.
Therefore, the same entry into the ground, as well as the erection of the power pole, did not mean a clear or apparent usage of the ground, which would prejudge the uncovering of a seat of service (as requested by the company).
– The constructions started, yet unfinished, elements and instruments not constituting a certain whole, requiring inactive more detailed work effort in the course of their construction, cannot be attributed to the quality of the equipment not visible and usable," the justice Marta Romańska pointed out in the conclusions of the message of reasons.
As Prof. Bartosz Rakoczy of Nicolaus Copernicus University, legal advisor, Article 305 (1) of the civilian Code states that the property can be charged with the service of the transfer to an entrepreneur who intends to build or own transmission equipment.
– In my opinion, therefore, it is not only at the time of the commencement of the operation but at the beginning of the construction. It is clear that it is not possible to start operation of the installation on the date of construction. Construction on the ground should already be treated as a servitude covering the time leading to its sitting," comments the expert.
File number: I CSK 3617/23
