Extension of an existing right of way to an emergency access road for the construction of a single-family house

Facts

Burkhalter is the owner of a plot of land in the rural zone in Brüschholz, municipality of Aarburg, which does not border a public road. In favor of his parcel and to the detriment of the neighboring developed parcels of Bohnenblust-Born and Born located to the west, there is a right of way registered in the land register as an easement over an approximately 3-meter-wide field path, which runs approximately 130 m along the southern boundary of the burdened parcels and leads into the Brüschholzstrasse. However, the right of way was only intended for agricultural purposes, as it had been established for the cultivation of undeveloped, agriculturally used land.

In 1962, Burkhalter applied for a permit to build a single-family house on his parcel. Born and Bohnenblust-Born filed an objection, primarily on the grounds that the access road was only for agricultural purposes. However, the building permit was granted on April 20, 1964.

On June 21, 1965, Burkhalter filed a lawsuit against Born and Bohnenblust-Born and demanded, among other things, that the 3-meter-wide right of way registered in the land register be extended to an unlimited right of way, also valid for the use of motor vehicles.

Considerations

Pursuant to Art. 694 para. 1 of the Swiss Civil Code (ZGB), a landowner who does not have sufficient access from his property to a public road can demand that the neighbors grant him an emergency access road in return for full compensation. In the present case, the respondent has two footpaths available to reach the public road from his parcel. However, for the use of a residential building, even a single-family house, footpaths are not sufficient access within the meaning of the aforementioned provision. Only a road that may be used by vehicles, especially motor vehicles, can be considered sufficient.

The objection of the appellants that the respondent can be expected to either park his car at suitable locations on Brüschholzstrasse and reach his house on foot or to refrain from using a car altogether, misses the core of the matter. The reference to steep slopes where houses often have to be reached via long staircases…