Facts
Werner Bleiker and Paul Seligmann are owners of adjacent properties in Zurich-Wollishofen. Bleiker plans to build a terraced apartment building on his property and temporarily claims a part of Seligmann's property for this purpose. Seligmann subsequently filed a request with the single judge in the summary proceedings of the District of Zurich to prohibit Bleiker from carrying out further construction, piling, or excavation work on his property and to restore the previous condition.
The single judge did not enter into the request. Seligmann appealed this decision to the High Court of the Canton of Zurich, which granted the appeal and instructed Bleiker to stop the work on Seligmann's property and remove the installations that had been created.
Bleiker then filed a nullity complaint with the Court of Cassation of the Canton of Zurich and an appeal to the Federal Supreme Court, with the aim of dismissing Seligmann's request.
Considerations
The Federal Supreme Court states that the right to temporary use of the neighbor's property enshrined in § 115 of the Zurich Building Act is only guaranteed to the extent that it is within the framework of Art. 695 of the Swiss Civil Code (ZGB). This article empowers the cantons to issue regulations on the right of the property owner to enter the neighboring property, the so-called "right of way".
The Federal Supreme Court finds that the extent of the use of the…