Neighbour law: removal of trees within the cantonal minimum distance despite an intervening municipal path; standing of a non-adjacent neighbour and no abuse of rights after long toleration

Facts

Parties and instances: The respondents C.C. and D.C. are co-owners of a property in U. The appellants A.A. and B.A. are co-owners of the neighbouring property to the west, separated by a public Fluhgut path (approx. 1.6 m wide, owned by the municipality). Kreisgericht See-Gaster (first instance), Kantonsgericht St. Gallen, I. Civil Chamber (appellate instance), Federal Supreme Court (II. civil law division, judgment 5A_968/2019 of 20 May 2020).

Subject matter of the dispute: Neighbour law action for removal under Art. 679 CC due to non-compliance with the cantonal boundary distance (Art. 688 CC, Art. 98 EG CC/SG) by a thornless honey locust (14.75 m), a red oak (10 m) and a false cypress (11.2 m), and further cutting back or removal of a thuja hedge.

Background: After unsuccessful correspondence concerning shading, the respondents sued the parents of the current appellants in 2008. The appellate instance dismissed the action in 2012 for lack of passive standing, after the property had been transferred to the sons during the proceedings. On 20 August 2015 the respondents again brought an action against the appellants. In their closing submissions they extended their claim (complete felling of the thuja hedge). The Kreisgericht did not admit the amendment of the claim, ordered the appellants to cut the thuja hedge to 3 m in height and to fell the three trees; costs were apportioned 1/6 to 5/6.

Kantonsgericht: The appeal and the cross-appeal of the respondents were dismissed on 23 October 2019.

Appeal to the Federal Supreme Court: The appellants requested that the cantonal court decision be set aside, alternatively remitted. The suspensive effect concerning the three trees was granted by order of 6 January 2020. No responses were requested.

Main issues: (1) Standing of the non-adjacent respondents as neighbours; (2) forfeiture or abuse of rights due to the belated assertion of the removal claim concerning the false cypress (good faith); (3) value of the false cypress and balancing of interests, as well as the duty to give reasons.

Considerations

Admissibility: The dispute concerns a civil matter of a pecuniary nature with an amount in dispute exceeding CHF 30,000.-- (Art. 72 para. 1, Art. 74 para. 1 lit. b FSCA). The appeal is against a final cantonal decision and was lodged in time (Art. 75, Art. 90, Art. 100 para. 1 FSCA). A mere request for annulment does not in principle suffice as a reformatory remedy (Art. 107 para. 2 FSCA); however, it follows from the reasoning that dismissal of the action is sought, so the request is deemed sufficient.

Standing (Art. 687, 688, 679 CC): It is undisputed that the trees do not comply with the cantonal minimum distance of six metres (former Art. 98 EG CC/SG, transitional law under Art. 196 EG CC/SG). Art. 688 CC contains a genuine allocating reservation in favour of the cantons (Art. 5 CC); the cantonal distance rules protect against immissions such as shading, deprivation of light and moisture. The concept of neighbour is not defined and varies according to the norm. The Federal Supreme Court holds that Art. 687 et seq. CC may also be extended to more distant neighbours (reference to BGE 143 III 242 consid. 3). The contrary opinion in legal doctrine (MEIER-HAYOZ, REY) is not compelling. The separate systematics of the plant rules speak neither for nor against an extended concept of neighbour. Proof of excessive interference under Art. 684 CC is not required where the cantonal distance is not observed. The cantonal court did not violate federal law in recognising the respondents as neighbours.

Forfeiture and abuse of rights: The cantons are authorised, but not obliged, to provide time limits for removal claims; St. Gallen law knows no such time limit and expressly declares the claims imprescriptible in Art. 98sexies EG CC/SG. The complaint of a violation of good faith (Art. 2 CC) fails because the prohibition of abuse of rights in the area of cantonal private law rests on unwritten cantonal law. Cantonal law can be reviewed by the Federal Supreme Court only for arbitrariness (Art. 9 Cst.), and this complaint was not raised. The appellants also cannot derive anything from BGE 5D_80/2015 (Aargau, guideline of 30 years by analogy to Art. 662 CC, reference to Art. 663 and Art. 135 CO), since that decision merely reflects Aargau practice. In the canton of St. Gallen, long…