The acquisition of easements by prescription in Maltese law (2)

Abstract

We shall now turn to a provision which has given rise to much discussion and speculation among legal writers. Article 159 of our law lays down: "With respect to affirmative servitudes, possession in order to prescribe commences from the day on which the owner of the dlominant tenement commenced to exercise the servitude. With respect to negative Bervitudes, possession commences from the day on which the owner of the dominant tenement shall, by an official letter, a protest or another judicial act, have forbidden the owner of the servient t enement to make free use of it." We find the same provision in article 631 of the Italian law, but it is not to be found in the French law. From the notes of Sir ,Adrian Dingli we learn that he borrowed this provision from the Parma Code and the Code of Ticino. I n fact, turning to article 541 of' the Parma Code, we find almost the same words used by our legislator, with the only difference that the means by which use of the dominant tenement must be forbidlden as specified by OUr law are here omitted. The Code of Ticino in article 281, repeats almost the same wording. Now, how are we to reconcile this provision to that of article 165? According to the latter, continuous non-apparent easements a.nd discontinuous ease- ments cannot be acquired by prescription, whereas from the second paragraph of article 159 we desume that negative ease- ments may be acquired by prescription. AU negative easements, however, are generally continuous but not apparent, as is also stated! in a judgement of the First Hall of His Majesty's Civil Court in re Milanesi vs Debono, 19th February, 1872; hence we find it hard to render the two provisions of law compatible.