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1986 (O) 181

1990.11.20
1986 (O) 181
Minshu Vol. 44, No. 8
Judgment concerning the case regarding specific succession of land subject to the right of passage over surrounding lands referred to in Article 213 of the Civil Code and consequence of the right of passage
Case of third party objection, confirmation of the right of passage, vacation of land, etc.
Judgment of the Third Petty Bench, dismissed
Tokyo High Court, Judgment of October 31, 1985
The right of passage over surrounding lands provided in Article 213 of the Civil Code is not extinguished even where specific succession occurs on a land subject to passage.
Articles 210 and 213 of the Civil Code

Civil Code
Article 210 (1) An owner of land that is surrounded by other land and has no access to public roads may pass through the other land that surrounds his/her land to reach the public roads.
(2) The preceding paragraph shall likewise apply in cases where an owner cannot access the public roads unless he/she passes through ponds, lakes, rivers, waterways or seas, or in cases where there is a considerable difference in height between the land and the public road on account of a cliff.

Article 213 (1) If the partition of land creates a parcel of land that has no access to public roads, the owner of such parcel of land may pass to the public roads only through the lands owned by others who participated in the partition. In such cases, it shall not be necessary to pay compensation.
(2) The provisions of the preceding paragraph shall apply mutatis mutandis to cases where the owner of land assigns part of his/her land to others.
The final appeal is dismissed.
The costs of the final appeal shall be borne by the appellant of final appeal.
Reason I for a final appeal stated by the counsels for final appeal, SASAHARA Keisuke, OBATA Masao, and SASAHARA Shinsuke

The findings and determination of the court of prior instance regarding the counsels' arguments are legitimate and can be accepted in light of the evidence indicated in the judgment in prior instance, except for the rights for the lands at c, d, and e, b-chome, a, Ota-ku, Tokyo (all of these lands are indicated by former lot numbers; hereinafter the aforementioned lands are referred to as the "Former Lot Number Lands") as of April 1941, and the process thereof contains no illegality as argued by the counsels. In addition, according to the aforementioned findings and determination, the Former Lot Number Lands were obviously owned by Non-Party D as of September 1960, when they were united into a parcel of land (d at the same place). Therefore, whether or not D had owned the Former Lot Number Lands since April 1941 does not affect the conclusion of the judgment in prior instance. The arguments are only alleging the illegality of the judgment in prior instance by focusing on the parts which do not affect the conclusion of the judgment in prior instance or criticizing the selection of evidence and findings of facts made by the court of prior instance under its exclusive power, and thus are not acceptable.

Reason II for a final appeal stated by the same counsels for final appeal

Where partition of property in co-ownership or partial transfer of land creates a parcel of land that has no access to public roads (hereinafter such land is referred to as a "surrounded land"), the owner of the surrounded land holds, under Article 213 of the Civil Code, the right of passage only over the lands owned by others who participated in the partition or the transferor or transferee of the relevant part of the land (hereinafter these surrounding lands are referred to as the "remaining lands") out of the lands surrounding the surrounded land. The right of passage over surrounding lands provided in the same Article is not extinguished even where specific succession occurs on the remaining lands, and it is reasonable to consider that the owner of a surrounded land may not pass through surrounding lands other than the remaining lands under Article 210 of the Civil Code. With certainty, the provisions on the neighboring relationship in Article 209 and thereafter of the Civil Code are for the purpose of adjusting the use of land and do not stipulate the interpersonal relationships, and the right of passage over surrounding lands provided in Article 213 of the same Act is also a real right-like right attached to a surrounded land and should be considered as real right-like burden imposed on the remaining lands themselves. The understanding that the right of passage over surrounding lands is extinguished through transfer of the remaining lands by the owners thereof to third parties brings about an unreasonable result, that is, the owner of the surrounded land is deprived of his/her legal protection due to an accidental circumstance regarding which he/she has no concern. On the other hand, the understanding that the owner of a surrounded land may pass through surrounding lands other than the remaining lands causes unexpected disadvantage to the owners of such surrounding lands. Therefore, these understandings are unreasonable.

When this determination is applied to this case, according to facts lawfully determined by the court of prior instance, [i] in September 1960, D united the Former Lot Number Lands, which D possessed in the name of Non-Party E, into a parcel of land, and partitioned that land into the land at d and the land at f, and on September 29, 1960, D sold the land at d to the appellant (hereinafter the same land is referred to as the "Appellant's Land") and went through the registration of transfer of ownership to that effect, [ii] on April 17, 1961, D sold the land at g to Non-Party F and went through the registration of transfer of ownership to that effect, and [iii] the Appellant's Land is a surrounded land, and this is because of transfer after the unification and partition of the Former Lot Number Lands by D as mentioned above. Based on the aforementioned facts, the following determinations of the court of prior instance are legitimate and can be accepted: [1] the appellant obtained the right of passage over surrounding lands with respect to the land at g that was still owned by D as of the time when the appellant bought the Appellant's Land; [2] the obligation to accept the right of passage over surrounding lands for a surrounded land should be considered as the attribute of the remaining lands themselves, and it is succeeded by the transferees through transfer of the remaining lands, and the owner of the surrounded land may not allege the right of passage over surrounding lands under the provisions of Article 210, paragraph (1) of the Civil Code with respect to surrounding lands other than the remaining lands; and [3] even after F bought the land at g, the appellant holds the right of passage over the same land and may not exercise the right of passage over surrounding lands with respect to the pathway in question as stated in Item List I-2 attached to the judgment in prior instance, which surrounds the Appellant's Land and is owned by the appellees. The judgment in prior instance contains no illegality as argued by the counsels. The arguments are only denouncing the judgment in prior instance based on the counsels' own opinions, and thus are not acceptable.

Reasons III to V for a final appeal stated by the same counsels for final appeal

The findings and determination of the court of prior instance regarding the counsels' arguments are legitimate and can be accepted in light of the evidence indicated in the judgment in prior instance, and the process thereof contains no illegality as argued by the counsels. The arguments are only criticizing the selection of evidence and findings of facts made by the court of prior instance under its exclusive power or denouncing the judgment in prior instance based on the counsels' own opinions, and thus are not acceptable.

Accordingly, in accordance with Articles 401, 95, and 89 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text, except for the dissenting opinion stated by Justice SONOBE Itsuo.

The dissenting opinion stated by Justice SONOBE Itsuo is as follows.

I cannot agree with the majority opinion regarding Reason II for a final appeal, and

I think that the judgment in prior instance should inevitably be quashed for the following reasons.

The right of passage over surrounding lands provided in Article 210 and thereafter of the Civil Code is for the purpose of adjusting the use of land, but it is not provided only in consideration of the physical attribute of a land, which is that the land is surrounded by other lands and does not lead to public roads. For example, it should be considered that, where the owner of a surrounded land obtains the right of passage over surrounding lands and subsequently comes to own some other part of those surrounding lands, said right of passage over the relevant surrounding lands is extinguished. It should be said that the right of passage over surrounding lands is provided also in consideration of an interpersonal element, which is the identity of the owners of the surrounded and surrounding lands.

Article 213 of the Civil Code provides that, where partition of property in co-ownership or partial transfer of land creates a surrounded land that has no access to public roads, the owner of the surrounded land holds the right of passage over surrounding lands only with respect to the remaining lands. However, Article 213 only provides that the owner of a surrounded land may gratuitously pass through the remaining lands as long as the remaining lands are owned by the persons who were the owners as of the partition of property in co-ownership or partial transfer of land, when taking into account that the same Article is an exception to Article 210, paragraph (1) of the Civil Code and that the right of passage over surrounding lands is provided also in consideration of an interpersonal element, as well as the physical attributes of a plot of land. It is reasonable to consider that, where specific succession of the remaining lands occurs due to transfer thereof from the owner of the time to a third party, the right of passage over surrounding lands provided in the same Article is extinguished and the right of passage over surrounding lands provided in Article 210, paragraph (1) of the Civil Code arises.

The majority opinion states that the understandings as above are inappropriate because one of them brings about an unreasonable result, that is, the owner of a surrounded land is deprived of his/her legal protection due to an accidental circumstance regarding which he/she has no concern, and another causes unexpected disadvantage to the owners of surrounding lands other than the remaining lands. However, even if the right of passage over surrounding lands provided in Article 213 of the Civil Code is extinguished through specific succession of the remaining lands, if there are circumstances, such as where the owner of the surrounded land has already passed through the remaining lands before the specific succession, the prior remaining lands should be selected as the place and method of passage that are necessary for the owner of the surrounded land and cause the least damage to surrounding lands. Therefore, the criticism in the majority opinion is not correct. It is rather unreasonable if, where there are circumstances such as where partition of property in co-ownership or partial transfer of land created a surrounded land that has no access to public roads but the owner of the surrounded land has neither actually passed through the remaining lands, nor negotiated with the owners of the remaining lands for passage, nor alleged the right of passage over surrounding lands, a third party who subsequently obtains the ownership of any of the remaining lands must naturally accept the right of passage over surrounding lands. On the other hand, it is also not reasonable in light of the purpose of the Civil Code, which provides the right of passage over surrounding lands with the aim of promoting the utility of surrounded lands, if such third party may refuse the owner of the surrounded land from passing through the remaining land as an abuse of right.

The following determination of the court of prior instance based on opinions different from those described above contains illegality of the erroneous interpretation and application of Article 210, paragraph (1) and Article 213, paragraph (2) of the Civil Code: The appellant holds the right of passage only over the land at g even after F bought the same land and may not allege the right of passage over surrounding lands under the provisions of Article 210, paragraph (1) of the Civil Code with respect to the pathway in question owned by the appellees because the appellant obtained the right of passage over surrounding lands provided in Article 213, paragraph (2) of the Civil Code only with respect to the land at g that was included in the remaining lands of a parcel of land before the partial transfer thereof and that was still owned by D as of the time when the appellant bought the Appellant's Land. The aforementioned illegality obviously affects the conclusion of the judgment in prior instance. The counsels' arguments are well-grounded, and the judgment in prior instance should inevitably be quashed. According to the above, it is reasonable to remand this case to the court of prior instance because it is necessary to further examine whether or not the pathway in question represents the place and method of the appellant's passage from the Appellant's Land to a public road that are necessary for the appellant and cause the least damage to the appellees, who are the owners of surrounding lands.
Justice SAKAUE Toshio

Justice SONOBE Itsuo

Justice SATO Shoichiro

Justice KABE Tsuneo
(This translation is provisional and subject to revision.)