Facts
The parties are each co-owners to 1/7 of the property [O.] Gbbl. No. sss at [P.] in [Q.] , which is built over with seven double garages. Above the garage units lie single-family or double houses on steep terrain. A retaining wall extends across the roof of the garages. In favour of properties Nos. uuu, vvv and www, and against property No. sss, the easement 'right of use of garage roof' is registered. The garage unit southwest of property No. uuu is assigned to property No. zzz.
Upon the application of several co-owners (owners of properties Nos. zzz, ttt, vvv, www, xxx and yyy), the single judge of the District Court of [O.] provisionally ordered the defendants on 28 November 2013 to dismantle the retaining wall on the garage unit assigned to property No. zzz to a height of 2.2 m and to reduce the earth fill to an average height of 4 m. The plaintiffs filed an action on 31 March 2014 and demanded dismantling to 1.4 m and an earth fill of no more than 3.5 m. The District Court of [O.] ordered the defendants on 6 April 2018 to dismantle to 2.2 m and to reduce the earth fill to 4 m.
By judgment of 18 December 2018, the Cantonal Court of Lucerne, 1st Division, confirmed the dismantling to 2.2 m within four months after the judgment became final. As regards the request concerning removal of the earth fill, it declined to hear the matter for lack of legal interest in protection. The costs of the appeal court proceedings were divided equally, and the first-instance costs were newly allocated, 3/4 to the plaintiffs and 1/4 to the defendants.
The defendants lodged a civil law appeal with the Federal Supreme Court and requested, by way of cassation, the annulment of the judgment or remittal to the lower court; the Federal Supreme Court admitted the purely cassatory request in light of the reasoning. The plaintiffs requested dismissal of the appeal. After the death of the plaintiff [C.A.] during the federal proceedings, his descendants entered the proceedings (universal succession). Suspensive effect was granted on 26 February 2019.
The Cantonal Court found that the retaining wall had been dimensioned in 1978/1979 for a height of 2.2 m and a load of 4 m of earth fill. After acquiring the property in 2008, the defendants had raised the wall to approximately 3.95 m and substantially altered the terrain. Before the measures, the surcharges had exceeded the standard-compliant level. The wall had been severely tilted and was close to failure; the experts stated that water alone had not caused the tilting, but rather excessive earth pressure. Reinforcement or re-anchoring would also have been technically possible.
Considerations
The Federal Supreme Court affirmed the admissibility of the civil law appeal (Art. 72 para. 1, Art. 74 para. 1 lit. b, Art. 75, Art. 76 para. 1, Art. 90 FSCA) given an amount in dispute of CHF 50,000.--. A purely cassatory request is exceptionally sufficient if the reasoning makes clear what is sought; here, the complete dismissal of the action was discernible. The Federal Supreme Court applies the law ex officio but examines only properly raised complaints (Art. 106 para. 2 FSCA) and is bound by the facts unless they are arbitrary or based on a violation of law within the meaning of Art. 95 FSCA (Art. 105 para. 1, Art. 97 para. 1 FSCA). New facts and evidence are in principle inadmissible (Art. 99 para. 1 FSCA).
The complaints concerning the facts (non-admission of photographs as novas under Art. 229 CPC, citing documents out of context under Art. 317 CPC, quality of the expert report and violation of the right to be heard) were dismissed: the defendants did not explain how the evidence could be decisive, did not engage with the dual reasoning of the Cantonal Court, and did not timely challenge the expert's qualifications in the first-instance proceedings. Their other factual assertions (building permit,…