Facts
T. and P. have established a footpath and driveway easement over Parcel No. 610 of the municipality of M. to connect Parcels No. 611 and 145 to the cantonal road. T. is the owner of Parcel No. 611 with his residential building, while P. is the owner of Parcel No. 610 with his residential building. P. later acquired the adjacent Parcel No. 146 and erected a metal grate fence barrier with a 4.10 m wide gate across the easement.
T. has sued P. and demanded the removal of the barrier and the gate. The District Court and the Cantonal Court dismissed the claim, whereupon T. filed an appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court upheld T.'s appeal and ordered P. to remove the barrier and the gate. The Court stated that the principle of "servitus civiliter exercenda" according to Art. 737 para. 2 of the Swiss Civil Code (ZGB) cannot lead to a restriction of the scope of the agreed easement. The owner of the dominant property has the right to full use of the easement, as long as he does not abuse it.
The Court found that the barrier and the gate impede the exercise of the footpath and driveway easement, as the user must stop,…