1 Servitudes
1.1 General Remarks
In the books of court judgments from the period of the Free City of Cracow, one can find numerous traces of proceedings concerning two land servitudes: party walls and view rights.1 These were servitudes of an âurbanâ nature, and the drafters of the nc devoted the whole of Title iv: âOf Servitudes or Manorial Servicesâ (Articles 637â710), within Book ii (âOf Property, and the Different Modifications of Propertyâ) to the issue. Under the Code, servitudes were, of course, in addition to the right of ownership, the main right in rem; at the same time, they were the most important limited right in rem, alongside usufruct. They were of Roman origin and, as perceived by ancient jurists, belonged to so-called ârights in foreign affairsâ (iura in re aliena).2 Personal servitudes disappeared from the nc, while land servitudes, called, depending on their location, rural or urban, remained. The latter include the right: a) to drain rainwater onto a neighbourâs land; b) to build a beam from oneâs own building into the wall of a neighbourâs building; c) to lean a building against the wall of a neighbourâs building; and d) to open a window over a neighbourâs land. Land servitudes can consist of abandonment (non facere), as in the case of urban servitudes, or of abolition (pati) (rural servitudes). This was expressed by the principle: servitus in faciendo consistere nequit. The servient land also had be useful to its each owner at any time.3
1.2 An Analysis of Cases Concerning Servitudes
The discussion of some of the most interesting cases in this area will allow the identification of the most important juridical problems faced by Cracowâs judges and advocates, as well as the ways in which they were resolved under the nc.
Seal of the Tribunal of the Free City of Cracow and its District, (seal matrix, brass, 1st half of the 19th century)
source: national archives in cracow, ank, 29/661/213; photo & permission by national archives in cracow
In the case of Stefan and Salomea Borkowscy versus Isaac Wermuth, concerning a tenement house in Kazimierz in Żydowska Street, its purchaser (Wermuth) wished to obtain a view of the neighbouring property belonging to the Borkowscy. This could only be done by removing bricks from two
The justice of the peace examining the possessory claim ordered Wermuth to immediately brick up the recently made windows, due to the content of the aforementioned Article 675 of the nc. This did not cause any objection of the Court of Appeal hearing the appeal, which also strongly objected to the examination by the Court of the Peace of petitory issues.9 However, Wermuth did not give up and, through his advocate, pointed out further circumstances in favour of his right of view in relation to the neighbouring property. He thus argued that the right of view was a land servitude and therefore vested in each successive owner of the property. He argued that it had been exercised throughout the years 1787â1819, and that, since the Borkowscy had tolerated servitude on the property for so long, they could not now deny it to him (prohibiting âthe opening of new windows, in an equal or superior line with the former onesâ). Wermuthâs representative also argued that the servitude of the party wall should be considered âcontinuous and visibleâ (Articles 688â689 of the nc),10 and therefore such which, pursuant to Article 690 of the nc, may be acquired by usucaption.11 He also questioned the evidentiary force of the
Wermuthâs arguments were rebutted by the Borkowscy in a reply read out to the Court of Appeal. They pointed to the presumption of Article 653 of the nc that any neighbourhood wall is in principle âcommonâ (this is supported e.g. by the public interest), and it is precisely on the party claiming otherwise, i.e. Wermuth, to prove to the contrary (ei incumbit probatio qui dicit, non qui negat). Wermuth could have done so by citing any legal title, e.g. a contract, or âsigns to the contraryâ proving that the wall was non-middle, however he failed to do so. The Borkowscy also defended the credibility of the documents they presented: the protocol of the judicial inspection (1783) was officially approved, and thus functioned as a fully-fledged official document and thus as fully-fledged evidence, the credibility of which could only be challenged with a suspicion of forgery, which, however, Wermuth did not do; acting âagainst the wordingâ of the document, on the other hand, was inadmissible. The allegation that the Magistrateâs judgment (1784) had been overturned by the Governorâs judgment (1793) was at least partly inaccurate, as it actually concerned two separate issues: peaceful possession and the reimbursement of the costs of reparation of the building. With regard to the allegation of failure to notify the co-ownership of the wall, they replied that only possible mortgage creditors had been summoned at the auction of the house; there was no need to do so in relation to the co-owners of the wall, as no threat to the durability of its structure had been identified.13
Similar legal doubts arose in the case of Ignacy and Klara Raab, owners of a tenement house at No. 46 Stolarska Street, versus Franciszek Wysocki, owner of a house at No. 30 Grodzka Street. The possessory protection for the exercise of the view servitude was granted by a justice of the peace on the basis of witness testimony and expert opinions. In their rulings, the courts confirmed that the right of view was a continuous and visible servitude, and could therefore be acquired by way of usucaption (per prescriptione longissimi temporis; Articles 688â689 of the nc). The parties proved the usucaption by means of official documents and witness testimony. In doing so, the Court was assisted by expert opinions (âexpert reportsâ). The consequences of declaring a wall to be either co-owned or ânot middleâ were examined, as well as the partyâs observance of the appropriate distance of a window made in the wall from the neighbouring property (Articles 676â680 of the nc), etc.21
The reporting of servitudes also appeared in the case, in connection with the regulation of mortgages then underway in the Free City of Cracow (see above).22 On the latter issue, the Raabs argued, citing a decision of the
The issue of the reconstruction of a party wall (Articles 658â660 of the nc) was reflected in the case of Wermuth versus Józef and Katarzyna GajdziÅscy, residents of a Cracovian tenement house at No. 99. A wall was erected between the two buildings, which, according to Article 653 of the nc, up to the top of the lower building (in this case, the Wermuthsâ house) was to be used in the form of joint ownership.25 Above this level, it was the property of the GajdziÅscys, who agreed to make it available to the Wermuths, âwhen necessaryâ and for a fee of half its value. The conflict arose over renovation and construction work carried out by the GajdziÅscys on the basis of an agreement with Wermuth, concluded in the form of a notarial deed. It is worth adding that, taking advantage of the ncâs flagship principle of freedom of contract (Article 1134: âAgreements legally formed have the force of law over those who are the makers of themâ),26 the parties significantly modified the codeâs provisions, in terms of liability for damage caused.27
In the discussed case, the courts applied further provisions of the nc devoted to servitudes, namely: Article 658, allowing for the rebuilding of a party wall by one of the owners, at his own expense and with the concomitant obligation to maintain the elevated part and compensate the neighbour for
In another of the cases (Andrzej Wielopolski v. Anastazy SiemoÅski), the Faculty of Professors of Jagiellonian University drew attention to the misinterpretation by the courts of the rather obvious provision of Article 654 of the nc. It pointed to one of the prerequisites (presumptions) allowing a wall to be considered the property of only one of the neighbours. Namely, this was the case if only on the side of his property the wall âshowed a slopeâ, had
The issue of the definitions of ânon-middlenessâ, which allowed the presumption that, inter alia, due to the expenses made by only one of the neighbours, the wall is his exclusive property, was also examined by the courts in their other judgments. Antoni Matakiewicz, Professor of Law at Jagiellonian University and attorney for one of the parties, and also in the Tribunal of First Instance, assumed that such a definition could be considered to be, inter alia: âthe foundation walls of the house, to which the staircase and the vault used to be attachedâ; the cellar near the wall, which was used only by one of the neighbours; the beams recessed into the wall, âthrough the entire thicknessâ, above the level of the window, âup to the neighbourâs roomsâ; the fact that one of the neighbours, who did not own the wall, lowered a gutter located on the wall, on the side of the building belonging to the owner of the wall; and the beams âgoing through the entire thicknessâ on the side of the house owned by the owner of the wall.37 The case in question (successors of Józef Zwierzyna versus Samuel Rozenfeld) was also used as a basis for considering the question of whether, for the purposes of the acquisition of a servitude by usucaption (Articles 688â690 of the nc), it is permissible to sum up the
The permissibility of summing up â this time the periods of the usucaption of a servitude, and on the basis of different legal regimes â was addressed in the case of Berl Luxemberg versus the heirs of Kazimierz Maydrowicz. The case concerned the exercise of servitudes of view, passage and carriage of goods, and as a result of its examination by the courts, it turned out that the party claiming the usucaption of the servitude had not, in fact, fulfilled the necessary conditions for it to take place.39 This applied to the requirements of both Article 608 Part iii of the West Galician Code (lapse of three years and six weeks) and Article 2281 of the nc.40 The court also analysed the validity of the argumentation of Luxembergâs attorney (Advocate Józef KozÅowski), who referred to Article 266 Part ii of the West Galician Code, concerning the termination of a servitude as soon as the reason for its creation ceased to exist.41
Judgment of the Court of Appeal of 11 May 1819 in case of A. Maydrowiczowa, (manuscript, paper, 1819)
source: national archives in cracow, ank, 29/200/1714, 861; photo & permission by national archives in cracow
A party wall in its various aspects was also involved in the case of Feliks SÅotwiÅski versus Julianna Schwartz. Her attorney, advocate Józef Jankowski, tried to convince the courts that a servitude consisting in the person encumbered with it refraining from building a wall above a certain height, was a continuous invisible servitude (Articles 688â689 of the nc) and could therefore only be established by contract (Article 691 of the nc). As SÅotwiÅski did not present any contract, he lost the case, in view of the denial of the other party. Jankowski also referred to Article 657 of the nc, that a co-owner of a party wall has the right to place beams up to half of its thickness. In addition, he referred to Article 662 of the nc, which stipulates that any attachment to the middle wall is permissible with the co-ownerâs consent, and in the absence of such consent, an expert opinion should be decisive; an expert opinion was obtained by Schwartz, as evidenced by the minutes of an expert committee and the permission of the Building Office. Jankowski also formulated reservations about the insufficient distance between an annexe built by SÅotwiÅski and the Schwartzâs tenement house. This allegedly amounted to seven ells, while Articles 678â679 of the nc stated a minimum distance of 6 decimetres (2 feet) from the structure, which the owner looked at âfrom the side or diagonallyâ.45 Based on the opinion of the Judge-Rapporteur, the Court of Appeal held that, in view of the wording of Articles 657â660 of the nc, each co-owner could not
Compliance with the technical requirements of Articles 676â680 of the nc was also addressed in the judgments of the courts in the case of the congregation of Mansionary Priests at the Church of the Blessed Virgin Mary in Cracow against Maurycy Samelson.47 In the context of the party wall, Wincenty Szpor, as an advocate for the Mansionary Priests, wishing to make it easier for the courts to resolve the dispute, posed some basic questions. Is a window open to anotherâs property a servitude: yes, but should it be considered a statutory or contractual servitude? Szpor argued that a servitude of view could not be considered to arise by operation of law, and therefore the Court in its judgments erroneously referred to Articles 675â677 of the nc, whereas the restrictions in Articles 678â680 of the nc were applicable. Szpor also emphasised the differences between statutory and contractual servitudes, because it was only within the framework of the latter that the owner, burdened with the servitude, had to refrain from actions that could impede the use of the servitude (Article 701 of the nc). But as there was no agreement between the parties establishing a servitude, there was also no servitude by usucaption (Article 690 of the nc). Hence, it was crucial to determine whether the window had a straight view (âwithout any distanceâ) of the property of the Mansionary Priests and, if so, whether the provisions of Articles 678 and 680 of the nc had been complied with.48
In the case of Franciszek Chachulski versus Wincenty GoliÅski, the Court of Appeal, analysing the Tribunalâs judgment, saw a violation of the provisions of the nc, including Articles 688â689. The Code introduced a division into servitudes existing continually, i.e. without the need for human action (water-pipes, house-eaves, windows), and interrupted servitudes, where human action was required (rights of way, of drawing water, of pasture). Article 689 of the nc further distinguished between apparent servitudes, âmanifested by external worksâ (a gate, a window, or aqueduct) and non-apparent servitudes, âhaving no external signâ (a prohibition to build upon a field, or against a building beyond a determinate height). The Tribunal concluded that a servitude over a window is a continual and apparent servitude, capable of being acquired by 30 yearsâ possession (usucaption), or alternatively âby titleâ (Article 690 of the nc).51 However, during the trial, witnesses testified that the hole in the wall had been made seven years before; GoliÅski also failed to produce documents granting the title. Moreover, Article 675 of the nc forbade a neighbour, without the consent of the other, to make a window or other opening in the party wall, âin any way or mannerâ. And under Article 678 of the nc, it was forbidden to make âdirect viewsâ of âthe estate of his neighbourâ if the distance
To conclude the discussion of servitudes, it may be added that the courts also sometimes examined the validity of contracts for the establishment of servitudes.53 In one of the cases (Jakub Adler versus Józef GajdziÅski), the Court of Appeal analysed the admissibility of evidence from oaths (of witnesses or experts) against the wording of a notarial deed. In doing so, the court found a violation of Article 1341 of the nc,54 because GajdziÅski did not produce a written deed proving a modification or limitation of the content of the servitude established by Adler by means of a written agreement and âthe beginning of the proof was by a writâ.55 In an earlier judgment, the Tribunal had allowed an âeyewitness inspection of the subject matter of the disputeâ by expert jurors, in the presence of a judge. Their role was to determine the actual content of the servitude, in terms of circumstances âbeyond the wording of the contractâ.56
1.3 Conclusions
The analysis of the archival material allows us to draw several conclusions of a very general nature.57 Above all, it is noteworthy that there is an absence in the court books examined of certain servitudes that seem obvious in the conditions of a large city. These are, namely, the servitudes of: a) the obligation to receive water flowing from higher land (Articles 640â645 of the nc); b) a common ditch (Articles 666â669 of the nc) and a common hedge (Articles 670â673 of the nc); and c) a common house (Articles 664â665 of the nc).58 The
Records of trials concerning the determining of the boundaries of immovable properties (Articles 646â648 of the nc) were also not found in the files of the Court of Appeal and higher instances.60 The same is true of the regulations setting out the rules for rebuilding burnt houses, which could have been successfully applied on the occasion of the great fire of 1850 in Cracow.61 Nor were any documents found to show the establishment of statutory servitudes for âpublic benefitâ.62 A servitude of the right of way (Articles 681â685 of the nc) appeared in only one case (Maydrowiczâs successors). Of the 14 cases examined, as many as nine concern the use of view rights, and eight concern the middleness of a wall. In nine cases, the judges used a variety of evidence (expert opinions, witness statements, official documents); in five cases, the case was brought before a Court of the Peace, although this was not always correct (possessory issues). The Faculty of Professors and Doctors of Law of Jagiellonian University issued opinions in four cases, one of which proved unnecessary, for formal reasons. When it comes to the assessment of how the nc was interpreted by lawyers of the Free City of Cracow, it seems reasonable to say that a literal interpretation prevailed, with only a few elements of a functional or systemic nature. Some advocates were also quite well versed in the code provisions: A. Krzyżanowski, F. SÅotwiÅski, W. Szpor, S. BoguÅski and J. Jankowski certainly deserve a mention. To sum up, it seems that the provisions of the nc fulfilled their role quite well, allowing for at least partial alleviation of disputes and conflicts between neighbours in Cracow at that time.
2
2.1 General Remarks
A discussion of the content of the Cracovian Expropriation Act and its application must be preceded by some introductory remarks.63 The institution of expropriation, after all, has a centuries-old tradition. By means of it, the State acquires rights belonging to other entities, if they are necessary for the achievement of important public objectives. It may be added that history knows more radical forms of State interference in the sphere of property relations, in the form of, for example nationalisation (e.g. of basic branches of the economy), land reform or taking away individual rights without compensation (confiscation).64
The institution of expropriation dates back to antiquity, but its expansion can only be seen with the development of the commodity-money economy in Europe (13thâ14th centuries), including the expansion of the urban network. Expropriations were particularly popular in France, where the basic condition for their use was that they were for the benefit of the general population or the State, while the size was limited by the limits necessary to achieve the objective (e.g. building roads, churches, fortresses). In the German States, expropriations were used on a smaller scale, as was the case in Poland, where rulings on the subject were issued first by the King and then by the Sejm. In the modern era, European rulers ceded their powers to various entities, such as commissaries (France). In the era of the police state, where the will of the ruler was the law and the highest good was the interest of the State, expropriation became the domain of the administration.65 The theories of the leading thinkers of the Enlightenment had a decisive influence on the formation of the modern notion of expropriation: of Ch. Wolff, S. Puffendorf, J. Locke and J.J. Rousseau, and especially Hugo Grotius and also Montesquieu. The war on the arbitrary intrusion of absolute monarchs into the domain of private property was declared during the French Revolution. It was crowned with success, as can be seen, for example, in Article xvii of the Declaration of the Rights of Man and of the Citizen (1789) or in the French Constitution of 1791.66
2.2 The Expropriation Act of the Free City of Cracow of 1821
Moving on to a discussion of Cracovian expropriation law, it can be said in general terms that the initiative for its enactment came from the Ruling Senate, which not only exercised governmental authority in Cracow, but also enjoyed the exclusive right of legislative initiative. In 1820, the draft was submitted to the Fifth Ordinary Sejm, which sat from 1 December 1820 to 9 January 1821, and although most of the Governmentâs proposals eventually found their way into the Act, a lively debate heated up around several provisions. It concerned key issues not only from the point of view of protecting property rights, but
However, important arguments were also put forward by supporters of expropriation. The crowning argument was the provisions of the nc, which, in Article 545, guaranteed that âNo one can be compelled to give up his property, except for the public good, and for a just and previous indemnityâ. And it was this exception that Leon Chwalibogowski referred to, further pointing out that the regulation under discussion should secure not only the rights of the expropriated landowners, but also of the Public Treasury. There was also a view that the aforementioned Article 23 of the Constitution prohibited the âseizure of propertyâ only in general, and the draft also referred to âspecific forms of conduct in the seizure of propertyâ. Still another of the participants in the debate pointed out that it was in fact not a matter of âtaking propertyâ, but of conversion, in connection with the principle that substitute land was to be given to the expropriated person in exchange for the land taken by the Public Treasury. Another important point was made by another deputy, namely the vagueness of the provisions of the nc on the issue of expropriations, which could be clarified by means of an act. There was also the most radical argument: expropriations are a matter of civil law, so in this case the provisions of the Constitution do not apply at all (justice of the peace Jakub MÄ kolski). It is worth adding that a kind of âlobbyingâ took place in the Sejm: one of the deputies, representing a rural commune, demanded special guarantees for perpetual leaseholders when land was seized; while a delegate of the Cracow Chapter demanded that the interests of âspiritual institutesâ be protected by using land exchange in their case, instead of compensation in cash.72
From the point of view of the rule of law, an important guarantee was the possibility for a party to lodge an appeal against a ruling (judgment) of the Tribunal of First Instance, both on the appointment of experts or their exclusion, and on the determination of the amount of compensation, within eight days of its delivery. An analogous right was available against a judgment awarding ownership of the expropriated property. Thereafter, an appeal was available, which had to be filed within 14 days of delivery of the judgment (Article 7). On general principles, it was also possible to apply to the Faculty of Professors and Doctors of Law for a declaration of violation of substantive or
2.3 Construction of the Cracow-Silesia Railway Line77
The usefulness of the statutory solutions can be analysed on the basis of the surviving Senate records concerning road, bridge and railway investments carried out in the Republic of Cracow in the late 1840s and early 1850s. These primarily concerned the construction of a railway line connecting Cracow with Silesia and the WarsawâVienna Railway.78 In order to delineate it, the Iron Railway Society was established in 1844; this was a joint-stock company whose main shareholders were Prussian entrepreneurs, with a smaller number of Cracovians (one-third of the shares). In its contract with the Society, the Government of the Free City of Cracow undertook to provide land in the treasury estates, as well as to act as an intermediary in negotiations with private entities regarding the acquisition of land for the railway route, stations, stops and viaducts, and if necessary to compulsorily expropriate it.79
In connection with the work on the Cracow-Krzeszowice section, which initiated the entire investment, the first expropriations of Church-owned
Because of the need to mark the legal status of the immovable properties, the âsituational plansâ, âmeasurement tablesâ, etc. were subject to the approval of the Government authorities. They ordered their attorney to apply to the Mortgage Authority to record in the mortgage books the fact that the land had changed ownership. They also called on the Societyâs management to pay the amounts set by the Court into the General Fund. Compensation was then paid to the peasants, in proportion to the area of the property and its value.82 The provisions devoted to the distribution of sums of money for occupied land raised numerous doubts, hence the Government authorities had to interpret them.83
Numerous differences can be seen in the proceedings. For example, on the occasion of the acquisition of land in Niegoszowice and Pisary, the Society declared its intention to do so directly, excluding the intermediation of the Senate.88 A major problem was the protection of the mortgage claims of various institutes, mostly ecclesiastical, in the context of the need to isolate new mortgage items (corpus tabulare).89 It should be explained that Article 19 of the Mortgage Act of 1822 expressly provided that properties having a separate card in the mortgage list were to be considered as a separate corpus tabulare
2.4 The Delineation of the Route to the Podgórze Bridge91
The second primary source for research into expropriations in the Free City of Cracow is the documentation from 1843â53, dedicated to the widening of the street leading from Wolnica Square and Wielicka Street towards the so-called Emperor Francis Joseph I Bridge (Podgórze bridge) linking Cracowsâs districts of Kazimierz and Podgórze. This investment, which was important not only for the inhabitants but also for the Imperial-Royal Army, was carried out between 1844 and 1850.92
The starting point for the work was the Senateâs finding that the road building plan was in line with the conditions for the development of this part of Kazimierz that had been in force from 1843 (âthe beautification planâ).93 In the first stage of the investment, the authorities were interested in the properties belonging to Ignacy OkoÅski, Leibel Judkiewicz, Dawid Birnbaum, Mrs Kempter and the monastery of the Brothers Hospitallers of Saint John of God.94 Their exact location can be determined from the surviving situational plan.95 In principle, the steps taken in this matter did not differ from the procedure followed in the construction of the railway line. Thus, landowners were summoned before the senator in charge of institute affairs to draw up an appropriate agreement, as long as the land was deemed necessary for the construction of a âpublic road leading towards the Podgórze bridgeâ. The Government offered them remuneration, stipulating that if they refused, expropriation would take place through the courts. If the conditions offered proved unsatisfactory, the
From 1848 onwards, on the basis of a decision by the Imperial-Royal Military Headquarters, work was concentrated on the so-called âpre-bridge squareâ, which enabled access to the crossing to be closed immediately in the event of military difficulties.98 The first orders to this effect were received by the Imperial- Royal Circular Office; land measurements and redrawing of the modified route were to be done in consultation with engineer Kutschera, who supervised the bridge work.99 The Imperial-Royal Military Headquarters left the final decision on the approval of the âgeneral situational planâ to the Imperial-Royal Governorate Commission. The City Council was to ensure that no buildings were erected in the vicinity of the bridge.100 In view of the above, the seizure was to include, in addition to the land of OkoÅski, Judkiewicz and the garden of the Brothers Hospitallers of Saint John of God, the real estate of StanisÅaw Szembek at No. 178, a house at No. 177, government land at No. 179 (on the site of the former turnpike) and a part of Józef Riedmüllerâs garden.101
Plan of real estate subject to expropriation for the construction of a road to the Podgórze bridge from 1841 (manuscript with drawing, paper, 1841)
source: national archives in cracow, ank, 29/200/280, 1585; photo & permission by national archives in cracow
Since the results of the negotiations were unexpectedly unsuccessful (the majority of the participants rejected the offer), the Government carried out a kind of simulation of the scenarios that were conceivable before the Court, as part of the judicial estimate.105 As the activities of the subsequent estimating commission, appointed in consultation with the City Council, also failed to produce the expected results, OkoÅski, disappointed in their calculations, took the matter to the Tribunal, requesting that the property value be estimated by judicial experts.106 The Court appointed them by order (âjudgmentâ), in the persons of masters (foremen) of construction (Kajetan SzydÅowski, StanisÅaw GoÅembiowski) and a surveyor (Karol BeÅcikowski). The Tribunal, having no grounds to question the expertise of the experts, approved their findings by a further order.107 In doing so, the Court did not give credence to the claims
2.5 Other Cases and Conclusions
Evidence of the Courtâs favourability towards expropriated persons is also provided by the case of properties in Cracowâs Commune viii on which buildings partially destroyed during the great fire of Cracow in 1850 were situated.111 Particularly important in the proceedings in question was the amount of compensation for the residents, most of whom poor butchers were, along with their families. A commission of its own was appointed by the City Council, on which the residents of Cracow sat. The case ended with Division ii confirming the judgment âestablishing the feeâ issued in Division i, by way of an adjudication of ownership for the benefit of the City of Cracow.112
It is worth reviewing the typical argumentation found in the pleadings of this case. During appeal proceedings, the Government assessor representing the interests of the Public Treasury argued that the fees were excessive. He described the land as low-lying, âdamp and not favourable to plant vegetationâ;
The argumentation of the Treasury Office was rejected in its entirety by the advocates on behalf of their clients, expressing their conviction that the court âadhered strictly to the principles of law and aimed only at justiceâ. They also alleged that the commission of the City Council had âgenerally taken the estimated price by mere approximationâ; moreover, the city authorities had not appointed such a commission at the stage of the proceedings at first instance, and yet the court could only properly rule on the basis of official documents, including the reports of experts who, before acting, take an oath that they will âcomplete the work according to their conscience and knowledge of artâ. Further in the letter, the attorneys drew attention to the tragic situation of butchers deprived of places to earn a living, who had to âseek accommodation in areas far from the slaughterhousesâ. Not only did the clients âlose property in the fireâ, but also, unlike other victims, they did not participate âin the benefits of the contributions and loans to the fire victimsâ. The Treasury Officeâs comments on the alleged unfavourable location of the land were also incorrect: after all, there was a âplant nurseryâ nearby, run by a Government gardener. The measurements of the Cadastral Office, however, were taken into account by experts whose level of expertise could hardly be questioned; the prices they established were âin accordance with cost estimatesâ, and the estimate was not excessive; the attorneys also strongly protested against the appointment of new experts: Article 322 of the Code of Judicial Procedure provided for such a possibility only âif no sufficient explanation is foundâ.114
A few words should also be devoted to indicating the sources of financing of the investments in question, an important element of which was the purchase
Finally, it should be added that the seizure of land was not always carried out on the basis of the Expropriation Act. In the case of road and bridge works, the authorities of the Free City of Cracow followed the provisions of a regulation of 1817. It stipulated that when âstraightening roadsâ in order to obtain the required width, the necessary part of the land should be compensated by a âpart of the abandoned roadâ; monetary compensation was explicitly excluded.119
As can be seen from the above, the Act of 1821 introduced the French expropriation model in the Free City of Cracow, in which the necessity of expropriation was decided by the Government, which also issued an appropriate ruling. It was up to the courts â practically always, in view of the almost universal challenging of the Senateâs decisions â to determine the amount of compensation and, as a mere formality, to issue judgments awarding ownership. This was a significant difference from the solutions in force in the Duchy of Warsaw; one of the reasons for this was undoubtedly the weaker structure of the State power apparatus.123 In the Kingdom of Poland, the hearing of disputes in this regard belonged initially (formally from 1817) to the administration, i.e. the Voivodship Commissions, but in 1820 this competence was transferred to the ordinary (civil) courts.124 The issue of expropriation attracted considerable
It seems that the solutions introduced in the Republic of Cracow can be regarded as beneficial for citizens. The examination of cases by judges made it possible to count on a more accurate interpretation of the provisions of the nc and the Code of Judicial Procedure, relatively speaking, compared to those made by officials of the Senate. It should be noted, however, that the number of code provisions referred to in judgments was negligible; apparently, judges concentrated more on the analysis of the facts, about which they were provided with information by court experts, who displayed a good level of expertise. A positive role, from the point of view of the protection of citizensâ rights, may also have been played by the absence, at least formally, of personal relations between Senate officials and judges of the Tribunal and Court of Appeal, which allowed the parties to count on an impartial consideration of an appeal.126 It seems that the preparation of deputies for their role as legislators can also be judged to be good. They were familiar with the solutions found in neighbouring countries and were aware of the possible consequences of the introduction of particular provisions of expropriation law.
3 Possessory Protection
3.1 General Remarks
A significant number of cases in Cracowâs court records are taken by those of possessory protection. It concerned possession, one of the oldest legal institutions of Roman origin. From ancient times, it consisted of someone having actual control over a thing and exercising actual power over it, as opposed to the owner, who has the right to the thing, i.e. an entitlement recognised by the legal order. âPossessionâ is therefore a factual circumstantial state of affairs protected by the legal system. Itâs essential elements are the corpus, i.e. the physical relationship of a person to a thing, in other words the ability to use
Although the nc did not deal closely with the issue of possession, its protection was not forgotten, shaping it by means of lawsuits, described in the Code of Judicial Procedure. Interestingly, and which is often forgotten, these were taken over into the Code from Ordinance on Civil Procedure dating from 1667. This included the so-called actio spolii (action reintegrande), or action for the restoration of unlawfully lost possession of a thing, and a second post-possession complaint, called action complainte, or action for interference with possession. The former, in turn, was taken over in France from canon law, back in the 17th century.130 The Roman-Canonical models underlying European systems of legal protection were primarily aimed at the elimination
It should also be noted that in the Free City of Cracow the legal basis for granting possessory protection was changing. Until 1825, Articles 23â27 of the Code of Civil Procedure (Title iv: âOn Judgments Rendered on Actions Brought in possesorioâ) were decisive; later, with the introduction of the Act on Courts of the Peace, the provisions of this very regulation were decisive. It should be added that the two acts hardly differed from each other in this matter. A possessory complaint had to be filed within no more than one year from the moment of infringement of peaceful possession; this could be done by a person who had been in peaceful and âindependent from another personâs graceâ possession for at least one year (Article 23 of the Code of Civil Procedure; Article 31 of the Act). The examination of a violation of possession, inter alia by means of a questioning of witnesses, could in no way concern the question of property rights. It was forbidden to bring a possessory complaint and a petitory complaint concerning the protection of property at the same time; it was only possible to apply for the latter after the possessory case had been concluded. At the same time, a person at whose request the court was examining his ownership right to the subject matter of the dispute (petitory issues) could not resort to the measures provided for possessory protection (Articles 24â27 of the Code of Civil Procedure; Articles 32â35 of the Act).132
The issue of the protection of possession, probably also because of its great practical importance, was of interest to Cracovian legal scholars. Lawyer Wiktor Kopff devoted a detailed study to it, drawing on the works of leading
3.2 Examples of Cases Concerning Possessory Protection
Using the court books, it can be seen that the issue of protection of possession can be understood in a variety of contexts. The most common possessory protection granted by the courts concerned the possession of real estate, both urban and rural.135 A good example is the case of BartÅomiej BaÅwaÅski versus Zofia WroÅska. The focus of the dispute was whether a purchase and sale agreement had been concluded for land in Kazimierz, which was subsequently turned into treasury land, in connection with the construction of a road towards a bridge over the Vistula. The Court of Appeal saw in the judgment of the Court of the Peace âan improper examination and judgmentâ of the ownership issues. And although the essence of the case was about who was the current owner of the property (WroÅska had sold it to BaÅwaÅski, who had exchanged it for government land), the Court of Appeal accepted a request to question witnesses about the following circumstances: whether WroÅska had remained in peaceful possession of the land and the square at No. 184 for the previous year (i.e. until 20 July 1820) and âa little chamber not yet demolishedâ, and whether she had only been âharassed in the possessionâ by BaÅwaÅski since July? The court instructed the Court of the Peace magistrate to examine the witnesses.136 Interestingly, BaÅwaÅskiâs attorney not only pointed out that only the Tribunal of First Instance could deal with the examination of ownership issues, but also challenged the claim that his clientâs neighbourâs possession of the land was âindependent of anyoneâs graceâ (as there was a dependence on
The case of the brothers Piotr, Józef and Kazimierz FeluÅ from Przeginia (a village in the district of the Free City of Cracow) is helpful for understanding another provision of the Code of Civil Procedure, concerning the protection of possession (Article 26).138 They demanded that the Court of Appeal overturn a judgement of the Court of the Peace, whereby their neighbour, Jan Grzywa, was maintained in âpeaceful possessionâ of benefits from agricultural land, which they had legally acquired through inheritance proceedings from their deceased father, StanisÅaw FeluÅ. The court correctly noted that the dispute had already been resolved by a judgment rendered following the partition of the estate, on the basis of which Grzywa was to withdraw from the property in question and hand over the accounts of its administration. The aforementioned Article 26 of the Code of Civil Procedure prohibited the initiation of a separate possessory lawsuit in such a situation. The court also ordered Grzywa to return to the owners the benefits taken from the property (Article 548 of the nc).139 The prohibition on the combination of possessory and petitory actions (Article 25 of the Code of Civil Procedure) was addressed in the case of Ludwik Klemensiewicz from Zwierzyniec versus Erazm Antoni Fachinetty.140
Family disputes were also involved, for example in the case of two residents of DÄ
bie near Cracow: Katarzyna Twardowska, née Wójcik, and her mother-in-law Marianna Twardowska. In its judgement, the Court of Appeal declared the appeal against the judgment of the Court of the Peace to be unfounded and ordered that Katarzyna Twardowska be maintained in peaceful possession of a house with land. The facts of the case were as follows. In 1822, on the occasion of her marriage, Katarzyna Twardowska received, together with her husband MikoÅaj, by donation between the living, land with buildings, previously granted to her in-laws by the Peasant Commission. In 1824, MikoÅaj died, leaving a young widow with a young child. A contract (âvoluntary settlementâ) between the groomâs parents and the newlyweds provided life estate right for Marianna Twardowska. She was now demanding that
A misapplication of Article 23 of the Code of Civil Procedure by the Court of the Peace concerned the case of Tomasz Grochowski from Zwierzyniec versus BronisÅawa Brożek, for maintaining peaceful possession of the house after Jacenty Grochowski, Tomaszâs father. The Court of Appeal ruled that the above provision could not be applied to Brożkowa, who only administered the Grochowskisâ house after Jacentyâs death and in connection with Tomaszâs departure outside the borders of the Free City of Cracow. Thus, the condition that the possession was âindependent from the grace of anotherâ was not fulfilled.143
Maintaining peaceful possession by a nephew in the house after his uncle, even against the deceasedâs stepchildren asserting their rights, was the situation in the case of Mateusz WoÅek from Czernichów versus Wincenty Michna from Pasieka Czernichowska and Wojciech Sroka from KÄpa Czernichowska. They began to disturb WoÅek in the possession of land, âfalsely proclaiming that they have the sacred right of inheritanceâ from Walenty Kowalski, as his closer relatives. On the ownership issues, a justice of the peace correctly referred the parties to the Tribunal. WoÅekâs attorney, Advocate StanisÅaw BoguÅski, drew attention to yet another circumstance, that the courts were appointed to settle
Possessorial protection was also attempted in the case of an alleged infringement of the ownerâs rights to collect revenue from âthingsâ (Article 548 of the nc) and to use them (Article 578 of the nc), in the context of making vodka from planted potatoes. This led to a conflict between Father Józef BÅoÅski, parish priest in PorÄba, and Count Józef Szembek, who enjoyed the exclusive right to make and sell alcohol on his landed estates.146 Nor were the courts much in doubt as to the admissibility of the Courts of the Peace in considering only possessory issues, including in cases concerning servitudes. This is demonstrated by the outcomes of the cases of MichaÅ OkoÅski versus the successors of StanisÅaw Senderkowski,147 and Peretz Pufeles versus Leibel Hartner.148
The overturning of an appeal and the upholding of the judgment of the Court of the Peace also occurred very often for formal reasons, most often due to the non-appearance of the appellant. This is evidenced by the case of Abraham Szauer versus Aszer Wappenstein before the Court of Appeal. Szauer claimed maintenance of peaceful possession of the property and the right to use the walkway across the common porch, as well as the disposal of rubbish in a box on the porch.149 Similar was the fate of the appeal filed by Wawrzyniec and StanisÅaw Fic and other peasants from Nowa WieÅ against
The discussion presented in this subchapter is an abridged and modified version of the authorâs article: Mataniak 2021, 11â65.
The definition proposed by Hube 1877, 333, states that a servitude is a right encumbering another personâs land, which consists in increasing the utility or multiplying the benefits of the owner of the land to whom the servitude is granted.
Litewski 1999, 222â223. Of contemporary studies on servitudes in general, see Picard 1952, 866â879.
French authors point out that the institutions of the servitude of the right of view and drainage were taken from the Coutume de Paris and not from Roman law. See Ourliac and Malafosse 1971, 404; Halperin 2004b, 48â49. On the legal sources of the nc, see Basdevant-Gaudemet and Gaudemet 2000, 375â377.
Also in the practice of the Paris courts, the question of the party wall raised many doubts. Hence, on the basis of, inter alia, the Coutume de Paris, there was a presumption that a wall was a party wall unless the circumstances clearly indicated otherwise. In addition, an enumeration of signs of non-middleness followed: Ourliac, Malafosse 1971, 404â405.
Notta Oppozycyjna ze strony Starozakonnego Izaaka Wermuth przeciwko Stefanowi i Salomei Borkowskim maÅżonkom, ank, 29/200/1723 (wm 250), 445â446. In this case, peaceful possession of the immovable property consisted of Wermuth having to refrain from interfering with his own property (making a window), as the owner of the servient land.
Ibidem, 446â447.
This non-exercise of the servitude consisted of ânot using the right of openingâ. Obrona ze strony Borkowskiej pko Wermuthowi, ank, 29/200/1660 (wm 187), 179â181. The window servitude can be viewed in two ways: as an opportunity to look onto the neighbourâs property, which the neighbour must endure; or, alternatively, as prohibiting the neighbour from erecting structures above a certain height that would prevent that view.
Notta Oppozycyjna ze strony Starozakonnego Izaaka Wermuth przeciwko Stefanowi i Salomei Borkowskim maÅżonkom, ank, 29/200/1723 (wm 250), 448â450.
Article 688 (1): âServitudes are either continual or interrupted. Continual servitudes are those whose use is or may be continual without having a necessity for the positive act of man: such are water-pipes, house-eaves, windows, and other things of that descriptionâ. Article 689 (1): âApparent servitudes are those which are manifested by external works, such as a gate, a window, or aqueductâ.
Article 690: âContinual and apparent servitudes are acquired by deed, or by possession for 30 yearsâ. Article 707: âThe 30 years begin to run according to the different species of servitudes, either from the day on which they have ceased to be enjoyed, when the case regards interrupted servitudes, or from the day on which an act has been made contrary to the servitude, in the case of continual servitudesâ.
Notta Oppozycyjna ze strony Starozakonnego Izaaka Wermuth przeciwko Stefanowi i Salomei Borkowskim maÅżonkom, ank, 29/200/1723 (wm 250), 449â455. He also submitted evidence to the court in the form of a receipt issued by one of the monasteries, proving that the Borkowscyâs predecessors had âacquired only an empty square, but not the co-ownership of the wallâ.
The prosecutorâs receipt could not be counter-evidence to the inspection protocol and the Magistrateâs verdict, as evidence which was too trivial: Odpowiedź ze strony Borkowskich pko Wermuthom, ank, 29/200/1723 (wm 250), 457â458; Obrona ze strony Borkowskiej pko Wermuthowi, ank, 29/200/1660 (wm 187), 179â181. There were also doubts as to whether the findings of the âcommittee in political lineâ could be evidence of the co-ownership of the wall, as the law provided for âforms under nullityâ in this case, in the form of expert testimony and âeyewitness opinionâ.
Article 706: âServitude is extinguished by non-usage during 30 yearsâ. In this context, the court also pointed to Article 2229 of the nc (âIn order to be able to prescribe, there is required possession continual and uninterrupted, peaceable, public, unequivocal, and under the title of proprietorâ) and Article 2262 of the nc (âAll actions, as well real as personal, are prescribed by 30 years, without compelling the party who alleges it to produce a document thereon, or without permitting an objection to be opposed to him derived from bad faithâ).
Notta Oppozycyjna ze strony Starozakonnego Izaaka Wermuth przeciwko Stefanowi i Salomei Borkowskim maÅżonkom, ank, 29/200/1723 (wm 250), 449â450, containing a description of the judgment of the Tribunal of the First Instance of 26 January 1821. Due to the âindecency of the actâ, the court sentenced Wermuth to court costs.
Court of Appeal judgments: of 7 October 1823; of 10 October 1822 (in default), ank, 29/200/1723 (wm 250), 441â442.
See above, A. Dziadzio. Chapter 1, Section 2.
The opinion of the Faculty of Law of Jagiellonian University of 19 November 1823, Dziadzio and Mataniak eds. 2022, 131â132. In general, the Faculty agreed with Wermuthâs argumentation; the exception was the recognition that the prosecutorâs receipt only proves the acquisition of an empty square. The opinion was issued by: MikoÅaj Hoszowski, Augustyn BoduszyÅski, Feliks SÅotwiÅski, Father Mateusz Dubiecki and Antoni Matakiewicz.
Judgment of the Court of Third Instance of 4 March 1824, ank, 29/200/1660 (wm 187), 69â70; Judgment of the Court of Third Instance of 22 April 1824, ibidem, 171â172. In general, the Court of Third Instance accepted the Borkowscyâs arguments.
Nota Oppozycyjna ze strony Starozak. Jakuba Wermuth pko Salomei Borkowskiej wdowie, ank, 29/200/1660 (wm 187), 175â176; Obrona ze strony Borkowskiej pko Wermuthowi, ibidem, 179â181.
An account by the reporting judge of 12 April 1839, ank, 29/200/1683 (wm 210), 991â992; Odpowiedź Wysockiego na UciÄ Å¼liwoÅci Raabów, ank, 29/200/1670 (wm 197), 1383â1386; judgement of the Tribunal of First instance of 24 February 1832, ank, 29/200/2007 (Tryb 204), no pagination; Odpowiedź Raabów na Punkt Incydentalny Wysockiego, ank, 29/200/2007 (Tryb 204), no pagination; Pozew rekurrujÄ cych Raabów of 12 June 1833, ank, 29/200/1670 (wm 197), 1022â1028.
From 1822 onwards, owners of immovable property, persons claiming to have a superior or equal right as to the property, as well as persons entitled to rights in rem and claiming debts and encumbrances on mortgages, were summoned by the Mortgage Commission to submit evidence on which their right was based. See Malec 2004, 88â89. The question of whether it was necessary for a servitude to be entered in the mortgage books in order to establish a servitude on an immovable property, was discussed during the extraordinary sessions of the Assembly of Representatives. A unanimous resolution was passed at the time that it was necessary, Gazeta Krakowska No. 10 of 4 February 1818, 113.
Wywód UciÄ Å¼liwoÅci ze strony Raabów of 23 March 1833, ank, 29/200/1749 (wm 276), 545â547; Raabsâ petition delivered by the usher, ank, 29/200/2007 (Tryb 204), no pagination; decision of the Mortgage Commission of 19 May 1828, No. 343, stating that the owner of No. 30 âdid not raise objections within the limitation period and six monthsâ.
That is to say, the Raabs, as invoking the right to demand that their neighbour brick up their windows: Odpowiedź Wysockiego na UciÄ Å¼liwoÅci Raabów, ank, 29/200/1670 (wm 197), 1385â1386. SÅotwiÅski also argued that if the right to make a window in oneâs own wall were to be treated as a servitude, the fact of not declaring it could not result in the loss of the servitude anyway.
Article 653: âIn towns and fields every wall which serves as a boundary between buildings, even to its base, or between courts and gardens, or even between enclosures in the fields, is presumed party, if there be no title or mark to the contraryâ.
The importance of Article 1134 as an article-symbol, affirming and even sanctifying the freedom of contract, was pointed out by Carbonnier 2004, 34â35. On its doctrinal basis, see Arnaud 1969, 197â214. See also Basdevant-Gaudemet and Gaudemet 2000, 391â393; Jean and Royer 2003â04, 131; Catala 2005, 20.
Notarial deed drawn up by Notary Wojciech Olearski dated 11 December 1835; Sójka-ZieliÅska 2008, 114â118.
Article 659: âIf the party-wall is not in condition to support the additional building, he who desires to elevate it must cause it to be entirely rebuilt at his own expense, and the excess in thickness must be taken from his own sideâ.
Article 660: âThe neighbour who has not contributed to the elevation may acquire right of partition by paying half of the expense it has cost, and the value of one moiety of the soil furnished for the excess of thickness, if there be anyâ.
Article 681: âEvery proprietor must so form his roofs, that the rain-water shall drop upon his own land or the public way; he must not suffer it to flow upon his neighborâs landâ.
Odpowiedź Józefa i Katarzyny GajdziÅskich, ank, 29/200/1758 (wm 285), 2279â2281. The parties explicitly stated that âany eaves on the Wermuthsâ partâ was prohibited.
Article 1135: âAgreements bind not only as to what is expressed therein, but further as regards all the consequences which equity, usage, or law attribute to an obligation by its natureâ. Article 1156: âIn agreements it is necessary to search into the mutual intention of the contracting parties, rather than to stop at the literal sense of termsâ.
Judgment of the Court of Appeal of 28 August 1838; Judgment of the Court of First Instance of 18 May 1838, ank, 29/200/1761 (wm 288), 911â913. As experts, the court appointed architects (Karol Kremer, Tomasz Majewski, Jan BogumiÅ Trenner), from whom the oath was taken by the deputy judge Eustachy Ekielski.
The opinion of the Faculty of Law of Jagiellonian University of 5 May 1829, Dziadzio and Mataniak eds. 2022, 387â388. The opinion was issued by Antoni Matakiewicz, Józef Jankowski, Ferdynand Kojsiewicz, MikoÅaj Hoszowski and Józef SÅoniÅski.
Judgment of the Court of Third Instance of 15 October 1829, ank, 29/200/1666 (wm 193), 335â338. The court delegated judge Józef PareÅski and expert architects, Franciszek Sapalski and Jakub CzerniÅski, who were to âlay out the drawing of the wallâ and determine whether the framing and ledges had the physical properties in question.
Delsol 1873, 480. For the author, moreover, the right of drainage was not a servitude, but merely a âsimple sanctification of any propertyâ.
UciÄ Å¼liwoÅci Sukcesorów Józefa Zwierzyny przeciwko Starozakonnemu Samuelowi Rozenfeld, ank, 29/200/1742 (wm 269), 789â792; Judgment of the Court of Appeal of 22 September 1835, ank, 29/200/1742 (wm 269), 785â788; judgments of the Court of First Instance: of 7 July 1832; of 28 June 1833, ibidem.
Delsol 1873, 489â490. However, what is more important in the case of an usupcation is the nuisance which the owner of the encumbered property does not oppose, which he permits, allowing to look over his property.
Judgment of the Tribunal of 30 December 1818, ank, 29/200/1967 (Tryb 164), 2235â2238, 2241â2243.
Article 2281: âPrescriptions commenced at the period of the publication of the present title shall be regulated conformably to the ancient laws. Nevertheless, prescriptions at that time commenced, and for which there was still requisite, according to the ancient laws, more than 30 years computing from the same date, shall be accomplished by such lapse of 30 yearsâ.
Wywód i Konkluzja ze strony Starozakonnego Berla Luxemberga, ank, 29/200/1967 (Tryb 164), 2245â2247; Obrona ze strony Sukcessorów Åp. Kazimierza Majdrowicza pozostaÅych, pozwanych, przeciwko Starozakonnemu Berl Luxembergowi powodowi, ibidem, 2249â2251.
Wywód UciÄ Å¼liwoÅci ze strony Luxemberga, ank, 29/200/1656 (wm 183), 103â105. Luxemberg said that he had used the servitude, which he could prove by an âinquisition from witnessesâ. Among the allegations, he also indicated: he had not been summoned; the mortgage entry had not been deleted; and the easement was not time-barred. He asked whether it was permissible to extend the effects of an action between two parties to a third party. He argued that the judgment of the Court of Appeal was supported by âneither law nor equityâ.
Judgment of the Court of Third Instance of February 1820, ank, 29/200/1656 (wm 183), 99â100. The court also decided to waive costs.
The court also found that the Maydrowiczes had properly acquired ownership of the tenement house under the terms of the deed of auction. Judgment of the Court of Appeal of 11 May 1819, ank, 29/200/1714 (wm 241), 861â864.
Letter from J. Schwartz to the Court of Appeal, ank, 29/200/1717 (wm 244), 85â87. In the case of âstraight viewsâ the distance was 19 decimetres, or 6 feet. The letter also mentions seven committees and âas many super-reviewsâ in which the appellee had to participate.
Judgment of the Court of Appeal of 27 July 1820, ank, 29/200/1717 (wm 244), 221â224. The height of the wall of the annexe erected by Schwartz was not to exceed 6 fathoms of Viennese measurement, counting âfrom the surface of the ground up to the top of the roofâ. The height of the second wall erected in Schwartzâs yard, âat the point where it meets the wall co-owned with SÅotwiÅskiâ, could not exceed 4.5 Viennese fathoms and 2 feet.
Judgment of the Court of Third Instance of 13 October 1836, ank, 29/200/1677 (wm 204), 491â493; Judgment of the Tribunal of First Instance of 4 April 1834, ibidem; Judgment of the Court of Appeal of 28 November 1834, ibidem. The courts read the code requirements on these parameters literally.
Odpowiedź xx. Mansyonarzy koÅcioÅa P. Maryi pko Samelsohnowi, ank, 29/200/1677 (wm 204), 501â504. A separate question concerned the proper organisation of the drainage, in accordance with Article 681 of the nc.
UciÄ Å¼liwoÅci Franciszka Hatzfeld przeciwko Jadwidze WilczyÅskiej, ank, 29/200/1742 (wm 269), 885â890. On this servitude see, however, Ourliac and Malafosse, 1971, 382.
Judgment of the Court of Appeal of 29 September 1835, ank, 29/200/1742 (wm 269), 881â883; Judgment of the Tribunal of First Instance of 18 June 1834, ibidem.
It ruled identically in the case of Adler versus GajdziÅski, Judgment of the Court of Appeal of 9 March 1837, ank, 29/200/1758 (wm 285), 873â874. By title, legal scholarship meant âany legal act capable of transferring property or one of its detached partsâ, e.g. an agreement of donation, exchange or, as in GajdziÅskiâs case, sale. Delsol 1873, 488â489.
Judgment of the Court of Appeal of 31 March 1828, ank, 29/200/1730 (wm 257), 993â996; Wywód UciÄ Å¼liwoÅci ze strony Franciszka Chachulskiego pko Wincentemu GoliÅskiemu, ibidem, 997â1004; Judgment of the Tribunal of the First Instance of 4 October 1827; rescript of the Police Department of 26 July 1820, No. 2787.
Article 1341: âAn act must be made before notaries or under private signature, respecting all things exceeding the sum or value of 150 francs, even in the case of voluntary deposits; and no proof can be received by witnesses against or beyond what is contained in such acts, nor touching what shall be alleged to have been said before, at the time of or subsequently to such acts, although there may be question of a sum or value less than 150 francs. The whole without prejudice to what is prescribed in the laws relative to commerceâ.
Judgment of the Court of Appeal of 9 March 1837, ank, 29/200/1758 (wm 285), 874â875. See Dziadzio 2020c, 269â277.
Judgment of the Court of Appeal of 9 March 1837, ank, 29/200/1758 (wm 285), 873â874; Judgment of the Tribunal of First Instance of 14 January 1837, ibidem.
For a detailed discussion of the cases, see Mataniak 2021, 16â60.
On the subject of a common home, see Weill, Terré, Simler 1985, 525â526.
Article 664: âWhen the different stories of a house belong to different proprietors, if the titles to the property do not regulate the mode of reparations and reconstructions, they must be made in the manner following: the main walls and the roof are at the charge of all the proprietors, each in proportion to the value of the story belonging to him. The proprietor of each story makes the floor belonging thereto. The proprietor of the first storey erects the staircase which conducts to it; the proprietor of the second storey carries the stairs from where the former ends to his apartments; and so of the restâ.
An exception to this is the case of the courtyards of Dominican houses, which lasted for more than ten years. See, for example, the Judgment of the Court of Appeal of 19 November 1839, ank, 29/200/1763 (wm 290), 1837â1840.
The consent of all co-owners was then required. If one of them objected, a judicial partition had to be carried out or the land had to be sold by auction and the amount obtained divided in proportion to the shares of ownership; co-ownership of the house could be established âindivisibly or divided by floorsâ. Delsol 1873, 470.
In the case of the Free City of Cracow, those would only concern the benefit of the Public Treasury.
The discussion presented in this section is an abridged and modified version of the article: Mataniak 2020a, 71â98.
Zimmermann 1933, 132â138, 142â147, 152â157; Sójka-ZieliÅska 1998, 207.
Zimmermann 1933, 163â169; Sójka-ZieliÅska 1998, 207â209; Sójka-ZieliÅska 2008, 31â42. Montesquieu created the construction of expropriation as a civil contract of forced sale.
For more, see Sójka-ZieliÅska 2009, 115â119, 209â211, 323â325; Dziadzio 2020c, 343â344. See also Weill, Terré, Simler 1985, 77â83; Martin 1993, 233â244; Van Erp 2019, 1042â1043.
Zimmermann 1933, 197â201, 206â208, 211â213, 219â221; Sójka-ZieliÅska 1998, 211. In the German states, Hungary and Switzerland, yet another solution was adopted: for expropriation a statutory authorisation was necessary.
Sójka-ZieliÅska 1998, 211; SobociÅski 1964, 219.
Text of the Constitution of 1818: Kallas and Krzymkowski 2006, 186â187.
Minutes of the fourth meeting of the Assembly of Representatives of 7 December 1820, âDyaryusz CzynnoÅci Seymu Rzeczypospolitey Krakowskiey R. 1820â, ank, 29/200/38 (wmk ii-18), 44â45; Gazeta Krakowska No. 101 of 17 December 1820, 1208.
Minutes of the 14th meeting of the Assembly of Representatives of 20 December 1820, ank, 29/200/38 (wmk ii-18), 208â212; Gazeta Krakowska No. 5 of 17 January 1821, 49â50.
Minutes of the meeting of the Sejm Legislative Commission of 13 December 1820, ank, âKsiÄga I. Postanowienia Seymu Rzeczypospolitey Krakowskiey R. 1820â, ank, 29/200/39 (wmk ii-19), 109â112. The omission of the right of devolution was a violation of Article xv of the 1818 Constitution. The Commission also demanded the introduction of control of the Faculty of Professors and Doctors of Law of Jagiellonian University, in the form of opinions stating the admissibility of cassation appeals to the Court of Third Instance.
Minutes of the sittings of the Assembly of Representatives: the fifth of 7 December 1821, ANK, âDyaryusz CzynnoÅci Seymu Rzeczypospolitey Krakowskiey R. 1821â, ank, 29/200/43 (wmk ii-23), 48â49, 69â70; the 13th of 19 December 1821, ibidem, 275â288; Gazeta Krakowska No. 100 of 16 December 1821, 1214â1216; No. 7 of 23 January 1822, 75â78; No. 8 of 27 January 1822, 85. See also above, Chapter 3.
The Act of 19 December 1821, O zajÄciu wÅasnoÅci prywatnych na użytek publiczny, promulgated by the letter of the Ruling Senate dated 24 December 1821 No. 4801 dgs, DRRz.WMK of 1822.
For a detailed discussion of the content of the Act, see Mataniak 2020a, 73â77.
For a thorough discussion of the case, see Mataniak 2020a, 79â84.
Among recent works, see Meus 2016, 34â35; Bieniarzówna and MaÅecki 1979, 180â184.
Statut Kolei Å»elaznej Krakowsko-Górno-SzlÄ skiej, promulgated by the letter of the Ruling Senate of 1 March 1844, No. 922 dgs, DPr.WMK of 1844 (art. 6, point b).
Proclamation of the Ruling Senate of 18 April 1845, No. 1825 dgs, DRz.WMK of 1845, Nos. 56â57 of 23 April 1845, 224â225; Nos. 60â61 of 30 April 1845, 241â242.
Letter of the Ruling Senate to the Department of Internal Affairs, the Societyâs Directorate and the Government Commissioner to the Society of 18 April 1845, No. 1826, ank, 29/200/301 (wmk v-101 A), 950, 955.
Letter from the Administrative Council to the Department of Internal Affairs, the Department of Public Revenue and the Accounts Office, 29 March 1847, No. 1636, ank, 29/200/301 (wmk v-101 B), 2229.
As regards land in Krowodrza, see the letter from the Administrative Council to the Department of Internal Affairs, the Department of Public Revenues, the General Directorate of Hospitals and the Krowodrza community of 7 October 1847, ank, 29/200/301 (wmk v-101 B), 1987â1988.
Act of 9 July 1844, Przepisy regulujÄ ce stosunki dzierżaw wieczystych w Dobrach RzÄ dowych, tudzież wieczysty czynsz z gruntów wÅoÅciaÅskich w Dobrach RzÄ dowych i do DuchowieÅstwa naleÅ¼Ä cych, promulgated by the letter of the Ruling Senate dated 1 October 1844, No. 3219 dgs, DPr.WMK of 1844 (Article 14). The Act listed the land subject to seizure for public use and for the mining of minerals.
Letter from the Court Commissioner to the Government Commissioner of Academic Institutes, 25 March 1848, No. 1024, auj, âMajÄ tki uniwersyteckie, 1841â1849â, ref. S I 204, no pagination.
Letter from the Treasury Office to the Government Commissioner for Academic Institutes of 25 October 1848, No. 926, auj, S I 204, no pagination. Notarial deed of 18 May 1848, drawn up by M. Strzelbicki in the chancellery at 101 Grodzka Street, ibidem. âThe former heirsâ had a right of first refusal should âthe railway ever cease to existâ; the Society undertook to retain the right of propination in the acquired estates; it was to maintain the road crossings. The sale took place âtogether with the crossings, water drains, ditches and their banksâ; under Article 19 of the Mortgage Act, the Jagiellonian University transferred to the Society a claim to separate the acquired land from the village of Åobzów and join it to the âmortgage wholeâ (Corpus Tabulare), which was to be created âfor all the property of the Societyâ. It was to be free of debts and burdens of mortgage; the Jagiellonian University allowed the deed to be entered in the mortgage books.
Letter from the head of the village of Krowodrza to the Administrative Council of 27 December 1852, ank, 29/200/301 (wmk v-101 A), 77; Letter from the Administrative Council to the head of 10 December 1852 No. 18 618, ibidem; Letter from the Council to the General Directorate of Hospitals of 28 January 1853 No. 19 438, ibidem, 77â78, 83.
Letter of the Societyâs Directorate to the Ruling Senate, 26 April 1845, ank, 29/200/301 (wmk v-101 A), 923â924.
Letter from the Office of Treasury Affairs to the Administrative Council of 23 July 1851 No. 1042, ank, 29/200/301 (wmk v-101 A), 217â218.
Act of 17 June 1822, O ustaleniu wÅasnoÅci dóbr nieruchomych, o przywilejach i hipotekach (Prawo o hipotekach), promulgated by the letter of the Ruling Senate of 6 September 1822, No. 2795 dgs, DRRz.WMK of 1822. On the Act, see Malec 2004, 79â95.
For a detailed discussion, see Mataniak 2020a, 85â90.
The work was carried out on the basis of a design by engineer Tomasz Kutschera, Imperial-Royal adjunct of the Galician Construction Directorate. The cost of construction was 200,000 Polish zlotys. For more, see Purchla 1981, 28â30.
On this subject, see Krasnowolski 2016, 59.
Letter from the Governorate Commission to the Administrative Council of 30 May 1850 No. 6774, ank, 29/200/280 (wmk v-80), 1241â1242.
Plan kierunku drogi do mostu staÅego na WiÅle wybudowaÄ siÄ majÄ cego, ank, 29/200/280 (wmk v-80), 1269. The plan was approved by the Ruling Senate by resolution of 27 March 1843 No. 1554 dgs.
Letter from OkoÅski to the Ruling Senate of 4 February 1846, ank, 29/200/280 (wmk v-80), 1463â1466; Letter from the Department of Internal Affairs to OkoÅski of 20 January 1846, No. 356, ibidem; Plan Sytuacyi wykazujÄ cy plac Ignacego OkoÅskiego liniami czerwonymi oznaczony a-b-c-d, to jest z przybraniem placu publicznego w figurze a-b-e-f, i odstÄ pieniem od takowego na użytek publiczny figury f-g-h-i-e-d, a to z zastosowaniem siÄ do form upiÄknienia, dated 12 February 1846, ibidem, 1459. The plan was prepared by Karol Kremer, the director of the Building Department.
Letter from the Department of Internal Affairs to the Administrative Council of 7 August 1846 No. 564, ank, 29/200/280 (wmk v-80), 1463â1464.
Letter from the Director of Building to the Administrative Council of 2 July 1849 No. 22, ank, 29/200/280 (wmk v-80), 1407â1408.
Letters from the Governorate Commission to the Administrative Council: of 14 May 1849, No. 5130, ank, 29/200/280 (wmk v-80), 1423; of 22 June 1849, No. 8886, ibidem, 1417; Letter from the Governorate Commission to the Circular Office of 27 August 1848, No. 2555, ibidem.
Letter from the Administrative Council to the Governorate Commission of 2 July 1849, No. 8462, ank, 29/200/280 (wmk v-80), 1413â1414; minutes of the military commission meeting of 22 July 1848.
Letter from the Director of Building to the Treasury Office of 17 February 1849, No. 121, ank, 29/200/280 (wmk v-80), 1429â1430; Letter from the Administrative Council to the Governorate Commission of 1 March 1850, No. 1818, ibidem, 1259â1260.
Letter from the Governorate Commission to the City Council of 15 March 1851 No. 1659â3679, ank, 29/200/280 (wmk v-80), 1193â1195.
Oszacowanie gruntu P. OkoÅskiego przy MoÅcie podgórskim na Kazimierzu poÅożonego of 28 June 1849, ank, 29/200/280 (wmk v-80), 1273; Oszacowanie Parkanu i Gruntu przy MoÅcie podgórskim staÅym na Kazimierzu poÅożonego, do Lewka Judkiewicza naleÅ¼Ä cego of 3 December 1849, ibidem, 1283â1284; Oszacowanie Parkanu od strony poÅudniowej i studni przy moÅcie podgórskim staÅym na Kazimierzu poÅożonego, do Lewka Judkiewicza naleÅ¼Ä cego of 3 December 1849, ibidem, 1287; Oszacowanie Parkanu i Ogrodu xx. Bonifratrom zajÄ Ä siÄ majÄ cego of 30 June 1849, ibidem, 1277â1279; Oszacowanie Parkanu przy moÅcie podgórskim staÅym na Kazimierzu poÅożonego, do oo. Bonifratrów naleÅ¼Ä cego of 3 December 1849, ibidem, 1291; Oszacowanie RealnoÅci pod L. 175 w Gm. vi przy moÅcie podgórskim pÅywajÄ cym poÅożonej, do P. StanisÅawa Szembeka naleÅ¼Ä cej of 20 June 1849, ibidem, 1295â1304.
Letter from the Director of Building to the Administrative Council of 2 July 1849 No. 22, ank, 29/200/280 (wmk v-80), 1409â1412.
Letter from the Administrative Council to the Governorate Commission of 1 March 1850 No. 1818, ank, 29/200/280 (wmk v-80), 1257â1261.
Letter from the Governorate Commission to the City Council of 15 March 1851 No. 1659â3679, ank, 29/200/280 (wmk v-80), 1191â1192; Proclamation of the Administrative Council of 4 April 1851 No. 3751, DRz.WMK No. 55 of 11 April 1851, 218.
Judgment of the Tribunal of the Grand Duchy of Cracow of 12 August 1852, ank, 29/200/2088 (Tryb 285), no pagination; Konkluzja ze strony Ignacego OkoÅskiego przeciwko c.k. Biurowi Spraw Skarbu, ibidem; Extract from the delegation files of the Tribunal of the Grand Duchy of Cracow of 29 April 1852, ibidem. The court was composed of: Józef PareÅski, Adam Karwacki and Tomasz Czech. The court also found justified the demand for an award of interest (5 per cent) from the date of seizure (pursuant to Article 1652 of the Civil Code) and reimbursement of costs of 15 Polish zlotys (Article 11 of the Expropriation Act).
Action by the Treasury Office against OkoÅski of 9 September 1852, ank, 29/200/280 (wmk v-80), 1043â1047.
Letter from the Administrative Council to the Treasury Office of 21 March 1853 No. 4135, ank, 29/200/280 (wmk v-80), 1087. The government defender was Herkulan Komar.
Letter from the Administrative Council to the Governorate Commission of 24 June 1853 No. 9498, ank, 29/200/280 (wmk v-80), 1021â1022. Funds were allocated from the road fund.
For more, see Demel 1951, 66â74; Demel 1952. These were immovable properties: No. 281, 283 and 284.
Judgment of the Court of the Grand Duchy of Cracow of 27 October 1852, ank, 29/200/2209 (Tryb 407), no pagination; Judgment of the Court of the gdc of 23 July 1852, ibidem.
Wywód uciÄ Å¼liwoÅci ze strony C. k. Biura Spraw Skarbu i Instytutów Publicznych, ank, 29/200/2209 (Tryb 407), no pagination.
Odpowiedź ze strony wÅaÅcicieli realnoÅci nr 281/5, 283 i 284 na Wywód uciÄ Å¼liwoÅci Biura Spraw Skarbu i Instytutów Publicznych, ank, 29/200/2209 (Tryb 407), no pagination. The last claim was thus âcontrary to the law, seeking to delay and damage the appelleesâ. The advocates in the case were Jan K. KleszczyÅski and Adam GoÅemberski.
Rederowa 1957, 276; Bieniarzówna and MaÅecki 1979, 203â204. This was a result of the city being granted the status of a fortress. Between 1850 and 1854, individual forts were built around KoÅciuszko and Krakus Mounds, in PrÄ dnik and Krzemionki, and at St Benedictâs Church; work also covered the Wawel Hill.
Sprawozdanie z czynnoÅci Rady Administracyjnej za rok 1850, of 15 January 1851, No. 273, ank, 29/645/171, 72. See the proclamation of the Administrative Council of 14 February 1851, No. 1949, DRz.WMK Nos. 29â30 of 1 March 1851, 113â115. The Council appointed officials of the Imperial-Royal National Building to sit in military-civil commissions.
Letters from the Governorate Commission to the Administrative Council: of 30 May 1850, No. 6774, ank, 29/200/280 (wmk v-80), 1241â1242; of 15 March 1851, Nos. 1659â3679, ibidem, 1192â1193.
Letter from the Administrative Council to the Governorate Commission of 14 June 1851, No. 5494, ank, 29/200/280 (wmk v-80), 1171; Letter from the Town Council to the Administrative Council of 14 April 1851, No. 4120, ibidem, 1173. According to the data of the Department of Administration and Treasury, the amount imposed on the municipality (84,440 zlotys 15 grosz) constituted almost half of the municipal revenue, and it was necessary to build a tollhouse in Podgórze and to pave the delineated roads.
Regulation of the Ruling Senate of 7 June 1817 No. 1525 dgs, O funduszach rogatkowym i mostowym, DRRz.WMK of 1817, Title ii âOn the Types of Roads and the Manner of their Maintenanceâ (Article 13). The width of the Lublin, WrocÅaw and Warsaw roads was to be 15 cubits, major roads 12, country roads 9 (Articles 2, 18).
Letter from the Inspector of Roads and Bridges to the Department of Internal Affairs, 23 May 1840, No. 213, ank, 29/200/859 (wmk vi-61), 467â468. Today this is the end of DÅuga Street.
Letter from the Ruling Senate to the Department of Internal Affairs of 6 July 1827, No. 3175, ank, 29/200/858 (wmk vi-60), 515. Land of 3 square fathoms belonged to the Åopatkiewicz family, valued at 12 Polish zlotys.
Letters from the Department of Internal Affairs: to the delegated commissioner of 12 April 1826, No. 1433, ank, 29/200/858 (wmk vi-60), 745â746; to the senator overseeing the affairs of public institutes of 15 April 1826 No. 1743, ibidem, 731; Letter from the Ruling Senate to the Department of Internal Affairs of 18 October 1826, No. 4401, ibidem, 725.
In the Duchy of Warsaw, âapplications and disputes concerning compensation for the expropriation of private property for public needsâ were dealt with by prefectural councils under the direction of the prefect, as âcollegiate magistrates hearing and deciding administrative disputesâ, administrative bodies involved in the exercise of âadministrative justiceâ, Witkowski 1984, 55â56, 165â168, 182â183; Sójka-ZieliÅska 1998, 211.
Izdebski 1974, 134â135. This was confirmed by the Administrative Council on 18 June 1852 and then by the General Assembly of Warsaw Departments of the Ruling Senate on 24 December 1859, âDziennik Praw Królestwa Polskiegoâ, Vol. xlv, 303â367. Sójka-ZieliÅska 1998, 212â219.
For more, see Filipiak 2020, 307â329.
No modification of the system was made in Cracow, unlike in France, where, in 1833, the issue of compensation was entrusted to commissions (landowners and a Tribunalâs delegate). The reason for this was the lengthiness of court proceedings and overcompensation. The institution lasted for only two years. Zimmermann 1933, 199â200; Sójka-ZieliÅska 1998, 215.
Osuchowski 1988, 251â258; Litewski 1999, 200â204. See also: Wróblewski 1899; Ourliac, Malafosse 1971, 215â224.
âPossession is the retention or enjoyment of a thing or a right which we hold or which we exercise by ourselves, or by another who holds it or who exercises it in our nameâ.
âIn order to be able to prescribe, there is required possession continual and uninterrupted, peaceable, public, unequivocal, and under the title of proprietorâ.
Uruszczak 2017, 468â469.
Uruszczak 1974, 227â228. In connection with the blurring of the boundary between a special trial for the restoration of possession lost by violence and a petitory trial of a right, during the period of the Noble Republic, the drafters of the âCorrection of the Lawsâ (1532) proposed new solutions to the traditional complaint âpro violenta expulsioneâ, concerning the deprivation of possession of property (Articles 801â805). See, more extensively: Uruszczak 1990, 195â196.
Act of the Extraordinary Legislative Assembly of 1 June 1825, Prawo oznaczajÄ ce postÄpowanie przed SÄ dami Pokoju w kraju Rzeczypospolitej Krakowskiey, promulgated by the letter of the Ruling Senate No. 3647 dgs, DPr.WMK of 1825. For more on possessory protection, see Jourdain 1995, 261â273.
Kopff supported his considerations on the work of authors such as Robert Pothier, Raymond Troplong, Alexandre Duranton, Bénigne Poncet, Hyacinthe Blondeau, Charles Toullier and Christian F. Mühlenbruch. See also BurzyÅski 1871, 346â353. Piotr BurzyÅski (1819â79) was a deputy professor in the Department of French civil and commercial law (1851â54), and later professor of French civil law and Polish law and its history.
See Themis of 1834, vol. 2, 3â15. The author of the âSolutions to legal questions in civil lawâ, which included a discussion of possessory protection, was Feliks SÅotwiÅski, a Cracow advocate and professor at Jagiellonian University.
It should be added that this concerned not only private property, but also Government, Church and university property.
Judgment of the Court of Appeal of 25 October 1820, ank, 29/200/1717 (wm 244), 627â630; Nota Oppozycyjna z strony Zofii WroÅskiej, ibidem, 631â634.
Odpowiedź pko Oppozycji z strony BartÅomieja BaÅwaÅskiego, ank, 29/200/1717 (wm 244), 635â637.
Article 26: âA plaintiff in petitorio will not be allowed to bring an action in possesorioâ.
Judgment of the Court of Appeal of 6 September 1820, ank, 29/200/1717 (wm 244), 443â445; Wywód uciÄ Å¼liwoÅci z strony sukcesorów Åp. StanisÅawa Felusia przeciwko wyrokowi sÄ du pokoju w dniu 3 sierpnia br. zapadÅemu, ibidem, 447â450.
Judgment of the Court of Appeal of 12 October 1838: ank, 29/200/1761 (wm 288), 1599â1601. Art. 25: âPossesorium shall never be brought together with petitoriumâ.
Judgment of the Court of Appeal of 24 May 1825, ank, 29/200/1726 (wm 253), 369â370; WyciÄ g pierwszy wyroku sÄ du pokoju okrÄgu iii w Mogile of 1 September 1824, ibidem, 377â380.
Judgment of the Higher Court of 4 July 1850: ank, 29/200/1849 (wm 336), 701â704; Wywód rekursu z strony Agnieszki Kuleczkowej przeciwko Wojciechowi i Katarzynie Kulawikom wÅaÅciwie Celarkom, ibidem, 705â706. This might demonstrate to some extent the emergence of a line of rulings on this issue.
Judgment of the Court of Appeal of 5 January 1826, ank, 29/200/1728 (wm 255), 41â43; Wywód uciÄ Å¼liwoÅci Tomasza Grochowskiego przeciwko BronisÅawie Brożkowej, ibidem, 45â46. What is more, Brożek was also to pay 200 Polish zlotys for using the farm and benefiting from it.
Judgment of the Court of Appeal of 4 October 1831, ank, 29/200/1743 (wm 270), 235â238; Wywód uciÄ Å¼liwoÅci z strony Mateusza WoÅka przeciwko Wincentemu Michno i Wojciechowi Sroce, ibidem, 239â241. The Peasant Commission carried out an agrarian reform in the treasury and institute estates of the Free City of Cracow (as well as some private estates), involving the conversion of corvée into rent. The reform was combined with the transfer of used land into perpetual lease; buildings, livestock and crops became the property of the peasants: Rutkowski 1922, 62â63. For a detailed discussion of this issue, see Krzeczkowski 1916.
Judgment of the Court of Appeal of 19 January 1836, ank, 29/200/1756 (wm 283), 285â287.
Judgment of the Tribunal of 19 December 1816, ank, 29/200/1960 (Tryb 157), 1285â1288.
Judgment of the Court of Appeal of 13 August 1837, ank, 29/200/1758 (wm 285), 121â124; Appellacja incydentalna OkoÅskiego, ibidem, 125â126; Judgment of the Court of the Peace of District ii of 23 March 1836, ibidem.
Judgment of the Court of Appeal of 30 November 1830, ank, 29/200/1739 (wm 266), 819â821; Judgment of the Court of the Peace of 1 September 1824, ibidem. For other examples of possessory protection in the context of land servitudes, see the chapter above on servitudes.
Judgment of the Court of Appeal of 18 June 1828, ank, 29/200/1731 (wm 258), 315â317.
Judgments of the Court of Appeal: of 15 January 1836, ank, 29/200/1756 (wm 283), 245â247; of 10 March 1836, ank, 29/200/1757 (wm 284), 951â953.
Judgment of the Court of Appeal of 18 April 1837, ank, 29/200/1768 (wm 295), 1425â1427. Similarly, the case of Jan Broczkowski versus Kazimierz Kratzer, Judgment of the Court of Appeal of 27 November 1834, ank, 29/200/1753 (wm 280), 1545â1551.
Judgment of the Court of Appeal of 27 September 1831, ank, 29/200/1743 (wm 270), 175â176; UciÄ Å¼liwoÅci Antoniego Kocika przeciw jw. Arturowi hr. Potockiemu, ibidem, 179â180.