Restoration of the original condition along the common property boundary

Facts

The facts concern a dispute between neighbors H. and D. over excavations and constructions that have damaged H.'s property. In the years 1972/1973, D. constructed terraced apartments on his property. This resulted in landslides that also affected H.'s property.

In 1977, H. filed a lawsuit against D. with the Cantonal Court of Zug, requesting that D. be ordered to restore the original level along the boundary of his property. The Cantonal Court and the High Court of the Canton of Zug dismissed the claim.

With his appeal to the Federal Supreme Court, H. requested the annulment of the High Court's judgment and the acceptance of his claim.

Considerations

The Federal Supreme Court states that D. has exceeded his property rights with his excavation work and has thus violated Art. 685 para. 1 of the Swiss Civil Code (ZGB). The injured H. can therefore, according to Art. 679 ZGB, sue for the removal of the damage or protection against further impending damage, as well as for damages.

However, the injured property owner can only demand the removal of the damaging condition on the original property with the removal claim under Art. 679 ZGB, but not the restoration of the…