The Municipality of Novi Velia wins the case against the Bishop and the Rector of the Sanctuary

The Court of Vallo della Lucania, with ruling no. 211/2019 of 28/05/2019, issued by the sole judge Dr. Francesco Guerra, rejected the application to reclaim ownership of the "Via Crucis" road, filed by the Diocesan Authority of Vallo della Lucania and the Sanctuary of Maria SS. del Sacro Monte di Novi. against the Municipality of Novi Velia , represented and defended by the lawyer Valerio Rizzo .

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CONDUCT OF THE JUDGMENT

By writ of summons dated 29 April 2003, the Diocesan Body of Vallo della Lucania , represented by the Bishop, and the Sanctuary of Maria SS del Sacro Monte di Novi , represented by the Rector, brought legal proceedings against the Municipality of Novi Velia, represented by the Mayor – as well as, for the sake of integrity of the adversarial proceedings, also the Municipalities of Cannalonga and Vallo della Lucania – to claim against these bodies the exclusive ownership of the road which, on the summit of Mount Gelbison, leads to the area of the Sanctuary of Maria SS del Sacro Monte, consisting of the so-called "Via Crucis".

In support of its claims, the plaintiff argued that the Sanctuary of Monte Sacro and its appurtenances had never become part of the public property of the defendant bodies, as the Diocese of Vallo della Lucania – formerly of Capaccio – had exercised its land rights fully and continuously for time immemorial.

With a statement filed on 6.10.2003, the Municipality of Novi Velia appeared , contesting the adverse deductions and requesting the rejection of the plaintiff's claims as unfounded.

Although ritually summoned to trial, the Municipality of Vallo della Lucania and the Municipality of Cannalonga remained in default.

According to the plaintiff's claim, the ecclesiastical administration , already upon the entry into force of the current civil code of 1942, had originally acquired ownership of the area in dispute , through peaceful, public possession and animo domini for over thirty years: this was by virtue of the institution of acquisitive prescription, governed by articles 2105 et seq. of the Civil Code of the Kingdom of Italy of 1865, an institution later transformed into that of adverse possession with the Civil Code of 1942.

In particular, according to the plaintiff's thesis, with a public deed dated 23.9.1323, the then feudal lord of the place, Count Marzano, donated the area of the Sanctuary " cum omnibus iuribus et pertinentiis suis " (therefore also with the area where the so-called "Via Crucis" currently stands) to the Celestine monks, in whose possession it remained until the abolition of the monastic order (which occurred in the Kingdom of Naples with the law of 13 February 1807) and the consequent acquisition of the Sanctuary by the Crown Property.

According to the plaintiff, a contextual Decree of the then King of Naples, Giuseppe Bonaparte (Royal Decree of 12.5.1807), would have constituted the title by virtue of which the Sanctuary and its appurtenances were entrusted by the King to the Bishop of Capaccio-Vallo , with the consequent broad and absolute dominion of the latter over the res .

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A CENTURIES-OLD DISPUTE

The Court of Vallo della Lucania, however, did not consider these arguments to be acceptable.

In fact, for the purposes of the decision, the procedural matter dating back to the 1870s and 1880s assumed significant relevance . This matter concerned the interpretation of the aforementioned Royal Decree of 12.5.1807 and saw the Bishop of the Diocese of Capaccio-Vallo and the Municipality of Novi Velia in opposition, in which the Municipality of Vallo Lucano also took part.

This dispute is documented by two separate rulings issued by the then competent Court of Appeal of Naples , one dated 16.6.1876 and one dated 1.3.1880.

From the body of the first sentence it can be deduced that the dispute was brought in the first instance before the Civil Court of Vallo Lucano on 8 June 1872 by the then Bishop of Capaccio-Vallo , who had judicially requested to be recognised as the legitimate and exclusive administrator of the Sanctuary and to condemn the Municipality of Novi to the immediate release of possession of the Sanctuary itself, precisely by virtue of the Decree of 12.5.1807 of the then King of Naples and Sicily, Joseph Bonaparte.

Given the above, in the opinion of the Court , "from the sole content of the legal request submitted by the then Bishop of Capaccio-Vallo, it can be clearly deduced that, in the year 1872 (the date of the beginning of the aforementioned dispute), the Municipality of Novi was in possession of the aforementioned Sanctuary : if this were not the case, a request for release submitted by the aforementioned Bishop would have made no sense".

Then, with the sentence of 16.6.1876, the Court of Appeal of Naples rejected the requests advanced by the Bishop of Capaccio-Vallo , completely reforming the first instance sentence issued by the Tribunal of Vallo Lucano on 7.6.1875, which had accepted the judicial request proposed by the Bishop.

Subsequently, the matter was re-examined by a different section of the Court of Appeal of Naples – referred to it following an annulment by the then Court of Cassation of Naples – which, with the ruling of 1.3.1880 and reinterpreting the aforementioned Royal Decree of 1807, partially accepted the Bishop's request, establishing that he was exclusively responsible for the care and management of the Sanctuary, as well as "the administration of the offerings collected in the said Sanctuary", with the exception of the annual "surplus" of such offerings (intended to be administered by the Municipality of Novi Velia for "the use of weddings").

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THE DECISION

According to the Court, however, the sentence of 1.3.1880 did not recognize any form of ownership of the Bishop over the Sanctuary and its appurtenances , but rather attributed to him a form of qualified detention.

In fact, the sentence states:

“It ultimately follows, in the opinion of this judge, that the described legal proceedings of the 1870s/1880s not only highlighted that in the year 1872 (the date of the beginning of the aforementioned dispute before the Court of Vallo Lucano) the Municipality of Novi was in possession of the aforementioned Sanctuary (by virtue of the aforementioned legislation at the time of the Unification of Italy), but above all that the Decree of 12.5.1807 of the then King of Naples and Sicily did not attribute to the Bishop of Capaccio-Vallo any form of ownership or possession of the Sanctuary and its appurtenances, but recognised – as mentioned – only a form of qualified detention on the same, strictly pertaining to the religious sphere".

Furthermore, the Court considered that the proof of ownership rights was lacking even with reference to more recently verified facts .

According to the judge, in fact, "in the light of the present proceedings which began in 2003, it is documented that, with order no. 10 of 30.6.1998, the Mayor of the Municipality of Novi Velia ordered […] the removal of the iron gate placed by the ecclesiastical administration to close the road in dispute here: well, at the end of a long legal proceeding, the aforementioned measure of self-protection of possession put in place by the Municipality of Novi Velia was declared fully legitimate , given the recognised public nature of the road in question and the legitimate public power exercised for the self-protection of free access to the road by the general population of the city and non-city (see ruling no. 4916/2014 of the Council of State , produced in the documents, and concluding the aforementioned dispute).

It is also worth highlighting – as has already been done by the administrative judge (see ruling no. 1597/2002 of the Campania Regional Administrative Court, Salerno section , first instance decision in the aforementioned dispute against mayoral ordinance no. 10/1998) – that the alleged exclusive and continuous possession of the road by the ecclesiastical administration is denied by numerous acts carried out by the local administration of the Municipality of Novi Velia during the second half of the 20th century.”

For all these reasons, the Court did not find the arguments put forward by the plaintiff to support its thesis regarding possession eligible for adverse possession that arose in the second half of the 20th century to be convincing , thus rejecting the claim for ownership of the "Via Crucis" road brought by the Diocese of Vallo della Lucania and the Sanctuary of Maria SS. del Sacro Monte di Novi against the Municipality of Novi Velia.

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