Facts
Armand Perret is the owner of the property Art. 1069 in the municipality of Überstorf. The lower-lying neighboring property Art. 438 belongs to the general partnership L. Oppliger Söhne. During construction work for an access road to the property Art. 438, soil was removed from the property Art. 1069, resulting in an artificial embankment.
Perret subsequently filed a lawsuit against the general partnership L. Oppliger Söhne and Hermann Brülhart, requesting the restoration of the original condition on Parcel 1069. The Cantonal Court ordered the general partnership to shore up the embankment on its property with railway sleepers in order to restore the original condition.
The general partnership appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that based on the binding findings of the lower court, it must be assumed that soil was removed from the plaintiff's property during the construction of the access road. This resulted in a disturbance that must be qualified as contrary to the property rights.
The Federal Supreme Court clearly distinguishes between a direct intervention in the substance of a property and a…