Facts
The case concerns a dispute between parties [M.] and [S.] regarding the existence and scope of a land easement (right of way for pedestrians and vehicles) in favor of a former property No. 2081, which has since been merged with another property No. 5846 to form property No. 8104, which is owned by S.
[M.] is the owner of the adjacent properties No. 5977 and No. 8605, which are burdened with the disputed right of way. [M.] filed a claim requesting the deletion of the easement without replacement. Alternatively, he demanded that he be able to request the complete redemption of the easement against compensation in accordance with Art. 736 para. 2 of the Swiss Civil Code (ZGB).
[S.] filed a counterclaim requesting the determination that the land easement exists in favor of the entire property No. 8104 and that it be registered accordingly in the land register.
Considerations
The Federal Supreme Court concluded that the easement should be deleted, as there is no longer any interest in exercising the easement for the originally entitled property No. 2081. The principle of identity states that an easement may not be maintained for a purpose other than the one for which it was established.
Through the merger of the entitled property No. 2081 with property No. 5846 to form property No. 8104, the easement cannot be revived, as there is also no longer any interest in the easement for the originally…