Claim of a landowner against the holder of a fishing right due to impairment by a boat access

Facts

Ms. Schächtelin is the owner of properties bordering Lake Lucerne. She received approval from the Cantonal Government to build a boathouse and a boat access, on the condition that the fishing rights holder Hofer gives his consent. Since Hofer refused, Ms. Schächtelin filed a claim with the District Court of Küssnacht, requesting that the boat access does not impair Hofer's fishing rights or that any potential impairment be declared reasonable. The District Court partially upheld the claim, but the Cantonal Court dismissed it, as Ms. Schächtelin lacked legal standing.

Ms. Schächtelin appealed this judgment to the Federal Supreme Court.

Considerations

The Federal Supreme Court states that the amount in dispute exceeds CHF 15,000, as the boathouse was constructed at great expense and its use would be significantly restricted without a boat access. Therefore, the appeal is admissible.

According to the Federal Supreme Court, while the owner of the burdened property can demand the deletion or partial release of an easement under Art. 736 of the Swiss Civil Code if the interest in it is disproportionately low, this right belongs only to the owner of the burdened property, not to third parties like Ms. Schächtelin.

However,…