Facts
In this case, it was about the plaintiff's claim for the granting of a right of way pursuant to Art. 694 of the Swiss Civil Code (ZGB). Although the plaintiff's property bordered a public road, a direct motorized access was not possible for reasons of traffic safety. The lower court had rejected the claim for a right of way.
The Federal Supreme Court confirmed the rejection of the right of way. It stated that public law provisions on traffic safety, which prevent direct access, cannot be circumvented by a private law right of way. Rather, it is the task of spatial planning and public law development regulations to ensure adequate development of the property.
The Federal Supreme Court clarified that while public law norms are relevant for the question of the intended use of the property, for the assessment of the drivability of a road, the public interests in traffic safety and flow are primarily decisive. Since in the present case the lack of a road was based solely on such public interests, it cannot be remedied by a private law right of way.
Considerations
The Federal Supreme Court set aside…