Facts
This judgment dealt with a dispute between the municipality of Falera and the municipalities of Sagogn (Bürgergemeinde and Politische Gemeinde) over the classification of two springs in the Fuorcla area as public or private waters.
The municipality of Falera had determined by order of December 17, 2015 that the Fuorcla springs were public springs in which no private ownership could be established. The municipalities of Sagogn appealed against this, and the Administrative Court of the Canton of Graubünden upheld the appeal. The Administrative Court concluded that the Bürgergemeinde of Sagogn had been able to prove that it had become the lawful owner of springs A and B in the Fuorcla alpine area, including the usage rights, before 1862 and that these rights continued to exist under the cantonal Civil Code of 1862.
Considerations
The Federal Supreme Court confirmed the decision of the Administrative Court. It stated that disputes over whether a body of water is public or private can be decided both through civil and public law proceedings. Since the present proceedings were brought through public law, the issue of ownership of the two springs could also be examined in the administrative law proceedings.
The Federal Supreme Court then examined the assessment of the evidence by the Administrative Court and concluded that it had neither violated the rules of evidence under Art. 8 of the Swiss Civil Code nor made an arbitrary assessment of the evidence. The Administrative Court had convincingly…