Jurisdiction of the Civil Judge for Damage Claims against the Community

Facts

The appellant [A.] is the owner of a property in [U.] , which borders on the [C.] street, a public street owned by the Political Municipality of [U.] . In the summer of 2012, renovation work was carried out on the [C.] street, during which rollers and other compaction devices were used that caused vibrations. The appellant claims that these devices set the subsoil in motion, resulting in damage to his property.

The appellant brought an action against the Political Municipality of [U.] and claimed damages in the amount of CHF 67,597.65 plus interest. The Political Municipality of [U.] dismissed the action and referred the appellant to the expropriation procedure. The District Court declared itself incompetent and referred the appellant to the expropriation procedure.

The appellant appealed against this judgment, which was dismissed by the High Court of the Canton of Zurich. The appellant then filed a complaint with the Federal Court.

Considerations

The Federal Court partially upheld the complaint and overturned the judgment of the High Court. It found that the jurisdiction of the civil judge for damage claims against the community is not given in every case, but only if the immissions appear to be avoidable.

The Federal Court also found that the burden of proof for the unavoidable nature of the immissions lies with the Political Municipality of [U.] and that it is up to the community to demonstrate the unavoidable nature of the immissions if it contests the jurisdiction of the…