Facts
The plaintiffs own Plot No. 1590 in Dornach. This plot is separated from the public Brosi path by four plots, which the defendant acquired in 1951. According to the land register entry dated December 31, 1923, a right of way on foot exists in favor of Plot No. 1590 over the two middle plots No. 1591 and 1592. The two outer plots No. 2403 and 1593, however, are not encumbered in the land register.
The right of way in favor of Plot No. 1590 had originally been created by "prescription", according to a registration from 1914. During the settlement of the land easements in the years after World War I, this registration was indeed adjusted accordingly, but only the encumbrance of Plots No. 1591 and 1592 was recorded, not that of Plots No. 2403 and 1593.
In 1952, the defendant relocated the fence and the southern gate in such a way that the plaintiffs were denied access to this gate from their plot and thus the use of the path. The plaintiffs then filed a lawsuit to establish the right of way over all four of the defendant's plots.
Considerations
The Federal Supreme Court decided that the defendant had acquired the plots in good faith. Although the old-law-created right of way was actually also encumbering Plots No. 2403 and 1593, this was not recorded in the land register. According to the rules of transitional law, this right could not be asserted…