Facts
Property No. 45 has a "foot and carriage way right encumbering No. 289" registered in the land register in favor of its plot. According to the easement contract dated October 28, 1974, the owner of plot No. 289 grants the owner of plot No. 45 "the unrestricted foot and carriage way right on the driveway shown in the land register plan from T.-str. Plot 41 to Plot 45 and vice versa". Since the contract does not contain any further provisions on the content and scope of the way right, it is an unmeasured way right, the content and scope of which are determined by the needs of the entitled property No. 45.
The owners of the entitled and encumbered properties are not the parties who established the easement, and their actual intention could not be determined. Therefore, the contract must be interpreted according to the principle of trust, whereby individual personal circumstances and motives of the original contracting parties cannot be taken into account against third parties.
Considerations
The Federal Supreme Court decided that the needs of the entitled property No. 45 essentially consist in having a direct connection to the northern S.-bergstrasse and for this purpose to cross property No. 289 on foot and by vehicle. To further specify these needs, public law regulations and recommendations, such as the VSS standards, can also be consulted.
Accordingly, a driveway of 2.7 m…