Facts
The Saurenhorn Water Supply Association sued seven water buyers to have the water supply rights registered as an easement on Land Registry Sheet No. 2469 in Schüpfen deleted. It also requested a court declaration that it was no longer obligated to supply the defendants with certain quantities of water free of charge.
The plaintiff's legal predecessors had concluded contracts with numerous water buyers between 1912 and 1926, granting them the right to draw a certain quantity of water from the main pipeline of the Saurenhorn water supply system. These water supply rights were registered in the land register as easements.
The plaintiff, who had later acquired the water supply system through expropriation, argued that the contracts with the water buyers did not constitute easements, but merely an obligatory obligation to supply water. Since this obligation had not been validly established as a real burden, it had been transferred to the plaintiff in good faith and could now be terminated.
Considerations
The Federal Supreme Court upheld the claim. It stated that the plaintiff's obligation to supply water could not be the subject of an easement, as it was a primary obligation and not merely an ancillary obligation. The water supply rights registered in the land register were therefore unjustified and had to be deleted in accordance with Art. 975 para. 1 of the Swiss Civil Code (ZGB).
Although the plaintiff's obligation to supply water…