Dispute over Kirchweg in Schwenningen: private or public?

Dispute over Kirchweg in Schwenningen: private or public?

There's a lot going on in the small community of Schwenningen am Heuberg. The dispute over a private path that the municipality wants to declare as public is causing heated debates. Jürgen Klemm and Claudia Hogenhuis, who have lived at Hauptstrasse 43 for six years and run a naturopath practice there, are the protagonists of this conflict. They own a property over which the church path runs, which is designated as a private path, but the municipality ignores this. Schwäbische.de reports, that the dispute only gained momentum when a construction project began in the neighborhood and questions arose about liability for possible damage caused by construction equipment. Klemm and Hogenhuis then prohibited the builder from crossing their property.

With reference to the institute of “immemorial statute of limitations”, the community claims that the church path is a public path. This special rule from Roman law states that a right is considered to exist if it has been exercised continuously over a long period of time. This is how the Juraforum puts it: “Immense statute of limitations is a legal institution that is not regulated by law” and is particularly important in legal areas such as road law and neighboring law. It has a legal function that differs from the Civil Code.

The legal background

The institute of immemorial limitation is not anchored in the Civil Code, but is based on customary law, which entails a high level of complexity in providing evidence. Requirements include, among other things, the uninterrupted exercise of the right for a period of at least 40 years and the absence of any memories to the contrary from the previous 40 years. These points represent MTR Legal clear, which also explain that this is a special form of acquisition that is rarely used in modern case law.

The community bases its claim on a district atlas from 1872 to 1875 to support its claim. But Klemm and Hogenhuis see this as an abuse of a legal institution and fear expropriation without compensation. They cite their own evidence that proves the church path to be private, including a registered right of way from the 1970s and a failed purchase offer from the municipality in 1998.

Current developments and outlook

As a result, the two plaintiffs filed a lawsuit against the municipality. A first meeting has already taken place before the Sigmaringen Administrative Court, and a second will follow to hear statements from two older witnesses who will confirm the use of the church path before 1964. In the first round, the court decided that the church path should be considered a private path - a ruling that is not yet legally binding. An appeal could escalate the situation again at any time. Mayor Ewald Hoffmann explained that the municipality would wait for the verdict so as not to take any hasty steps.

This dispute over the church route is an example of the complexity of neighborhood law and the immemorial statute of limitations in Germany. It remains exciting to see how the situation will develop and whether a solution can ultimately be found that is acceptable to everyone involved.