Facts
The appellant [X.] is the owner of the property [E.] -land register sheet no. 1 in [D.] . The respondents, [A. AG] , [B. AG] , and [C. AG] , are the owners of the adjacent property [E.] -land register sheet no. 2. The appellant had the excavation of the construction pit for a building permit-approved two-family house carried out on his property. The contracted construction company carried out the excavation contrary to the agreement in one go and erected a shotcrete wall with seven to thirteen meter long iron anchors, which partially protruded into the soil of the neighboring property.
The respondents requested the court president of the court district [F.] to prohibit the appellant, under threat of penalty, from attaching further anchors of the slope securing system to the soil of the property [E.] -Gbbl. no. 2, and to instruct him to remove the anchors already attached. The High Court of the Canton of Bern, Court of Appeal, 2nd Civil Chamber, confirmed the first-instance decision and set a deadline of two months from the date of the appeal judgment for the removal of the anchors.
Considerations
The Federal Court examined the appeal in civil matters and the subsidiary constitutional complaint of the appellant. It found that the appeal in civil matters is admissible, as it concerns a civil matter within the meaning of Art. 72 para. 1 FSCA of a pecuniary nature.
The Federal Court reviewed the application of Art. 695 CC and Art. 79o EGZGB/BE by the High Court and came to the conclusion that the installation of earth anchors in the neighboring property cannot be subsumed under Art. 695 CC. It also found that the lower court examined the requirements of Art. 79o EGZGB/BE and that the appellant's complaint that the lower court regarded Art. 82 EGZGB/BE as an implementing provision of Art. 695 CC is unfounded.
The Federal Court also…