Acquisition of Ownership of Abandoned and Public Waters by Adverse Possession

Facts

The Durnan Alpine Cooperative is the owner of alpine areas on the territory of the municipality of Andeer. In the alpine area are the mountain lakes Lai Lung and Lai da Vons, the ownership of which is disputed.

The municipality of Andeer filed a lawsuit to establish that the ownership of the two lakes belongs to it. The Durnan Alpine Cooperative requested the dismissal of the lawsuit with costs.

The District Court of Hinterrhein dismissed the lawsuit, as it considered the evidence of the municipality of Andeer sufficient to rebut the presumption in favor of the ownership of the territorial municipality under Art. 149 of the Introductory Act to the Swiss Civil Code (EG ZGB) and to prove the private ownership of the Durnan Alpine Cooperative in the lakes.

The municipality of Andeer appealed against this judgment, which was upheld by the Graubünden Cantonal Court. The Cantonal Court found that the ownership of the two lakes belongs to the municipality of Andeer.

The Durnan Alpine Cooperative appealed against this judgment to the Federal Supreme Court.

Considerations

The Federal Supreme Court states that the question of whether the presumption against private ownership under Art. 664 para. 2 of the Swiss Civil Code (ZGB) also speaks against acquisition and adverse possession by private individuals is a matter of federal private law, which must be answered independently of cantonal regulations.

…