Prohibition to fly over land in the nature of a path at low altitude

Facts

The dispute opposes Josef Schnarwiler, owner of several plots of land located west of the Wina canal, to FLUBAG, a company operating an airfield on these lands. The plots in question, numbers 690 and 693, are lands in the nature of a path and are undivided property of several people, including Josef Schnarwiler. FLUBAG took over the operation of the airfield on January 1, 1966, and began using the plots in question for aircraft takeoff and landing operations.

Josef Schnarwiler brought an action against FLUBAG, requesting that the company be prohibited from rolling aircraft on the plots and flying over them at low altitude, on the grounds that this constitutes an infringement of his property rights. The cantonal court dismissed the request, but the cantonal court of appeal partially admitted the appellant's appeal, prohibiting FLUBAG from rolling aircraft on the plots.

FLUBAG filed an appeal with the Federal Court, requesting the annulment of the decision of the cantonal court of appeal. Josef Schnarwiler also filed an appeal, requesting that FLUBAG be prohibited from flying over the plots at low altitude.

Considerations

The Federal Court examined the arguments of the parties and considered that FLUBAG could not claim a right to fly over the plots in question, as this constituted an infringement of Josef Schnarwiler's property rights. The Court also considered that the cantonal court of appeal had wrongly refused to prohibit FLUBAG from flying over the plots at low altitude, as this constituted a threat to the safety of people and property.

The Federal Court also examined the provisions of the Swiss Civil Code relating to property and easements, and considered that FLUBAG could not claim a right to fly over…