Facts
Thurflug AG and the Motorfluggruppe of the Thurgau section of the Aero-Club of Switzerland operate a private airfield on their properties near Lommis/TG. Lauchetal AG, whose Board of Directors is associated with the "Action Committee for Aircraft Noise Abatement Lommis and Surrounding Area", acquired two properties in the immediate vicinity of the airfield, including an undeveloped plot No. 124. In August 1974, Lauchetal AG submitted a building permit application for a garage on this plot, which was to be located in the extension of the runway. Thereupon, Thurflug AG and the Motorfluggruppe obtained a provisional building ban and filed building ban lawsuits.
The District Court of Münchwilen upheld the lawsuits, as the construction project was an abuse of rights. However, the High Court of the Canton of Thurgau overturned the judgment and dismissed the lawsuits. The plaintiffs appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the civil court only has to examine whether the construction project violates the private rights of the plaintiffs, but not the public law regulations of construction and planning law. Aviation law is only relevant insofar as it can be derived from it a restriction of property rights within the meaning of Art. 641 para. 1 and Art. 667 para. 1 of the Swiss Civil Code (ZGB).
The Federal Supreme Court clarifies that restrictions on property rights in the vicinity of airfields are only permissible in the cases expressly provided for by aviation law and against compensation. These restrictions do not apply to private airfields like the one in question. Whether the overflying of a property is lawful is assessed according to private law aspects.
The Federal Supreme Court concludes that the overflying of…