Bane NOR is obliged to maintain a fence along the western part of The Sørlandet Line

The Sørlandet Line runs from Oslo to Stavanger. The section between Kristiansand and Stavanger is commonly referred to as "Sørlandsbanen Vest" and was built from the 1870s until 1944. A number of properties along the line – properties that were then, and still are, used for livestock farming – had to cede land to the railway. Norges Statsbaner – later Bane NOR – installed fences along the line and was responsible for their maintenance.

In 2019, Bane NOR announced that the fences would be removed. A total of 156 landowners then instituted proceedings, demanding that the fences continue to be maintained by Bane NOR.

The majority in the Supreme Court has ruled in favor of 153 of the landowners. Decisive weight was given to the fact that, since 1928, the railway has used written assumptions in expropriation proceedings stating that “the railway fences the line.” The majority interprets this to mean that the assumption was not only a premise for determining compensation at the time of expropriation, but also entails an obligation for Bane NOR to install fences along the line and maintain them – an obligation the landowners may demand be fulfilled in kind (specific performance). For three properties where expropriation occurred before 1928, Bane NOR prevailed.

Two justices found in favour of Bane NOR, as none of the assumptions, in their view, provided grounds for a claim of specific performance of a fencing obligation.

The judgment gives guidance on the interpretation of assumptions in expropriation cases and on when such assumptions give rise to a claim for specific performance.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Expropriation law

Key paragraphs: 56 to 60, 84, 90, 101, 102  

Justices: Bergsjø, Bergh, Sæther, Lund, Steen