Facts
The Schüler-Ferienversorgung Herzogenbuchsee Foundation (the Foundation) owns the property No. 3091 in Grindelwald. To the east of this, there was previously property No. 2952, which partially bordered No. 3091. Further east was property No. 3094 with a holiday home owned by Schoch. A driveway ran across the southern part of No. 3091, which Schoch used as access to his holiday home, which the Foundation long tolerated.
On August 16, 1960, Schoch unified his properties No. 3094 and 2952 and had the new property registered under No. 2952. In the process, the right of way registered in favor of No. 2952 and to the detriment of No. 3091 was not deleted. Schoch then sold parts of the enlarged property No. 2952, but retained a small part of it with his holiday home.
The Foundation then sued Schoch with the aim of deleting the right of way and prohibiting Schoch from driving across property No. 3091.
Considerations
The Federal Court dismissed Schoch's appeal against the judgment of the Court of Appeal of the Canton of Bern. It stated that under Art. 739 of the Swiss Civil Code (ZGB), an easement may only be exercised in favor of another property united with the entitled property if this does not result in a significant additional burden for the encumbered party.
In the present case, the extension of the right of way, which was originally established in favor of property No. 2952, to the part united with No. 3094 resulted in a significant additional burden for the Foundation. This is because the driveway does not lead to the former property No. 2952, but only reaches the part of the former property No. 3094 that remained in Schoch's possession. There is only a holiday home there that is not used year-round, so the use of…