Facts
The plaintiff, a vegetable farming cooperative, operates a business in the municipalities of Otelfingen and Dänikon in the Canton of Zurich. Its property borders the Furtbach and the Bennengraben, a stream from a catchment area of approximately 1.8 km2. On June 13, 1946, and during the night of June 25 to 26, 1953, the Bennengraben overflowed its banks during high water and flooded the plaintiff's property, causing a total damage of CHF 90,000.
The plaintiff claimed that the Canton of Zurich, as the owner of the Bennengraben, was liable for the damage, as the Bennengraben had been inadequately maintained. The Canton of Zurich denied its liability, as it was not the owner of the Bennengraben and there were no grounds for liability under Art. 679 of the Swiss Civil Code (ZGB) or Art. 58 of the Swiss Code of Obligations (OR).
Considerations
The Federal Supreme Court decided that the Bennengraben was a public watercourse within the meaning of federal and cantonal law, even though it was not owned by the Canton. The Canton had a quasi-proprietary control over the watercourse, which justified liability under Art. 679 ZGB.
However, the Canton was not liable…