Facts

The dispute opposes Johann Rusch, owner of the land « Enzlers Seplis » in Steig (Appenzell I. Rh.), to Emil Manser, owner of the land « Rosengarten », located higher up. Rusch contests the existence of a right of passage with pack animals (Saumrecht) on his land, while Manser and other neighbors claim it. The procedure began with a request for an act of May 9, 1952, which Rusch filed against Manser, asking the latter to recognize that he has no right of passage with pack animals on the land « Enzlers Seplis ». The cantonal courts rejected Rusch's request, considering that such a right existed before January 1, 1912, the date of entry into force of the Swiss CC.

The key facts are as follows

  • A public act of 1690 establishes a right of passage on foot, on horseback and « geführter Hand » on Rusch's land, but does not explicitly mention the right of passage with pack animals.
  • The cantonal courts considered that the right of passage with pack animals may have been established before 1912, either by contract or by prescription.
  • The cantonal court applied article 106, paragraph 4, of the cantonal law introducing the CC, which provides that, in case of doubt, the right of passage is considered to exist.

Considerations

The Federal Court examined the decision of the cantonal court and considered that article 106, paragraph 4, of the cantonal law introducing the CC was applicable, as it was a cantonal law that had been established before the entry into force of the Swiss CC.

The Federal Court also considered…