Facts
For the expansion of the Fischermätteli-Weissenbühl railway line in Bern, the BLS Lötschbergbahn AG had to expropriate a narrow strip of land of 3 m2 from the landowners. Additionally, it erected a 2.15 m high retaining wall and a 2.20 m high noise barrier at the property boundary, which would not have been permitted under cantonal building law. The landowners demanded compensation for the reduced value of their property due to this right of proximity. The Federal Appraisal Commission awarded them a total compensation of CHF 5,539.-.Considerations
The Federal Supreme Court ruled that the railway company is obliged to pay compensation for the right of proximity it has claimed through the construction of the retaining wall and noise barrier. It is irrelevant whether the negative impacts such as shading are excessive or not. The compensation is calculated according to the rules on partial expropriation, i.e. the loss in value of the remaining property must be compensated.
However, the increased noise and dust emissions from the railway operation are not a consequence of the expropriation and therefore only to be compensated if they are excessive and not to be tolerated according to Art. 684 CC. Since the expropriated parties did not claim this, their claim was dismissed on this point.
In determining the…