You must be, You must be, You must be, You must be

1. You must be, which are sprayed on a property and then reach the neighboring property through the wind or similar causes, are in any case then effects within the meaning of. § 906 BGB, if it is a concentration, which impairs the use of a neighboring property for organic farming based on comprehensible criteria.

2. Acceptance of prima facie evidence, that a herbicide applied on one property affects a neighboring property, can be considered, if good professional practice was violated when the herbicide was applied and a third party cannot be considered the cause.

Oberlandesgericht Hamm 24 You 74/16 from 18.11.2021 – Pflanzenschutzmittel

…

You must be, which are sprayed on a property and then reach the neighboring property through the wind or similar causes, are in any case then effects within the meaning of. § 906 BGB, if it is a concentration, which impairs the use of a neighboring property for organic farming based on comprehensible criteria.
2.

Acceptance of prima facie evidence, that a herbicide applied on one property affects a neighboring property, can be considered, if good professional practice was violated when the herbicide was applied and a third party cannot be considered the cause.

Tenor:

On appeal, the plaintiff is the 14.03.2016 announced the judgment 4. Civil Chamber of the Paderborn Regional Court amended.

The defendant to 1) wird verurteilt, an den klager 40.239,45 € plus interest in the amount of 5 Percentage points above the base rate from 24.000,00 € since 07.12.2013 and from others 16.239,45 € since 17.12.2014, Further 1.590,91 € plus interest in the amount of 5 Percentage points above the respective base rate since 17.12.2014 and more 1.120,62 € plus interest in the amount of 5 Percentage points above the respective base rate since 17.12.2014 to pay.

The defendant to 3) wird verurteilt, an den klager 10.071,18 € plus interest in the amount of 5 Percentage points above the respective base rate since 17.12.2014, Further 887,03 € plus interest in the amount of 5 Percentage points above the respective base rate since 17.12.2014 and more 1.120,62 € plus interest in the amount of 5 Percentage points above the respective base rate since 17.12.2014 to pay.

Otherwise the action remains dismissed.

Die weitergehende Berufung wird zurückgewiesen.

The plaintiff bears the court costs of the first instance 57 %, The defendant to 1) 34 % and the defendant 3) 9 %. The defendant is entitled to the out-of-court costs of the plaintiff in the first instance 1) 52 % and the defendant 3) 15 % to wear. The defendant's extrajudicial costs 2) and the defendant 4) first instance, the plaintiff bears in full. The defendant's extrajudicial costs 3) first instance, the plaintiff to 70%. Each party shall bear its own remaining out-of-court costs of the first instance.

The plaintiff bears the court costs of the second instance 36 %, The defendant to 1) 51 % and the defendant 3) 13 %. The defendant is entitled to the out-of-court costs of the plaintiff of the second instance 1) 55 % and the defendant 3) 16 % to wear. The defendant's extrajudicial costs 2) second instance, the plaintiff bears in full. The defendant's extrajudicial costs 3) second instance, the plaintiff contributes 4 %. Each party shall bear its own remaining out-of-court costs of the second instance.

The judgment is provisionally enforceable. The plaintiff and the defendants 1), 2) and 3) can enforce by providing a security in the amount of 110 % des aufgrund des Urteils vollstreckbaren Betrages abwenden, if the enforcing party does not provide security in the amount of 110 % of each case to be enforced amount does.

G r ü n d e :
2

I.
3

Because of the factual findings, according to § 540 Abs. 1 Sentence 1 No.. 1 ZPO referred to the disputed, at the 14.03.2016 announced the judgment 4. Civil Chamber of the Paderborn Regional Court.
4

Insofar as it is still of interest in the appeal proceedings, the plaintiff closes claims for compensation under neighboring law due to an alleged drift of pesticides from the defendant's agricultural land 1) to 3) applies to the plaintiff's organic cultivation areas.
5

The plaintiff ran and runs an agricultural farm as a self-employed farmer in the area of municipality A, he in compliance with the EC organic regulation (VO EG Nr. 834/2007) and the Gaea Administrative Policies. His farm included acreage, each bordering on areas, which were conventionally farmed by the defendants as farmers.
6

The defendant to 1) brought on 14.10.2013 the pesticide Malibu, which contained the active ingredient pendimethalin, on his field B, on which he had grown winter barley, aus. Field B is to the east near plaintiff C's field (G01). The plaintiff grew celery on his field.
7

The defendant to 2) brought in October 2013 the pesticide Malibu on his field D-Str. aus. To the east of this field lies the field of plaintiff E (G02). The distance is 1 m to 8 M. The defendant to 2) was growing winter barley on his land at the time, while the plaintiff grew cauliflower and savoy cabbage in his field.
8

The defendant to 3) brought on 18.10.2013 the pesticides Malibu and Arelon on field H. Plaintiff's G field (G03), on which the plaintiff grew celery, lies to the east of this area, on which the defendant 3) cultivated winter barley. The distance to field G is approx. 15 m and the distance to the plaintiff's farm approx. 50 M.
9

Another area of the plaintiff, I, lies to the west of the defendant's field 3), j. The defendant built there 3) also winter barley and brought on 09.10.2013 the pesticides Malibu and Arelon. The distance to the plaintiff's area is between 0 and 5 M. Area I is no longer the subject of the appeal.
10

The defendant to 4) brought on 22.10.2013 or. at the 30.09./01.10.2013 the pesticide Malibu on area R, which was near Plaintiff K's field.
11

end of October 2013 were found during a sample as part of a voluntary self-monitoring of the plaintiff by his customer M GmbH & Co. KG found residues of the active ingredient pendimethalin on the celery plant produced by the plaintiff. The plaintiff had previously had the controlled delivery on 26.10.2013 harvested on field C and sent to M GmbH & Co. KG delivered. M GmbH took the sample & Co. KG in their warehouse in L am 28.10.2013. According to the test report dated 29.10.2013, on its content (Anlage K1) referenced to avoid repetition, resulted in a pendimethalin content of 0,011 mg/kg, what the maximum allowable of 0,01 mg/kg exceeded. Die M GmbH & Co. KG informed the plaintiff by e-mail dated 29.10.2013 (Annex K2) With, that the products are not marketable according to the Organic Farming Ordinance and that the findings must be reported to the organic inspection body.
12

The plaintiff then took 29.10.2013 and at 31.10.2013 further plant samples from his areas and let them through M GmbH & Co. KG at the agricultural investigation- and Research Institute NRW of the Chamber of Agriculture NRW (below: BARREL) investigate. According to the further test report from 30.10.2013, Test report no. 13-067584 (Exhibit K 12) celery grown in field C had a prosulfocarb content of 0,033 mg/kg. According to the test report of 04.11.2013, Test report no. 13-068093, (Appendix K6) the "savoy cabbage" grown on field E had a pendimethalin content of 0,017 mg/kg. As evidenced by the further test report dated 04.11.2013, Test report no. 13-068092 (Appendix K12) the celery grown on field G had a pendimethalin content of 0,019 mg/kg. According to the test report of 04.11.2013, Test report no. 13-068087 (Exhibit K 12) the level of pendimethalin in the kale grown in field Q was found to be 0,044 mg/kg. For the field "K2" or. „K“ (below: K) cultivated kale resulted from the further test report dated 04.11.2013, Test report no. 13-068086 (Exhibit K 12) a content of pendimethalin of 0,038 mg/kg and according to the test report dated 30.10.2013, Test report no. 13-06589 (Exhibit K 12) a content of pendimethalin of 0,020 mg/kg.
13

IMO GmbH informed the plaintiff in a letter dated 09.12.2013 (Exhibit K 13) With, that on 30.10.2013 a residue of pendimethalin had been reported first in celery and later in kale; at the 30.11.2013 a sampling with sampling had been carried out. The result emerged, that no deviations from the requirements of the EC Organic Regulation were found.
14

As evidenced by the invoice from IMO GmbH dated 09.12.2013, Invoice no. 013/104023, to their detailed content (Exhibit K 10) referenced to avoid repetition, paid the plaintiff for labor hours and inspection hours to clear up the residues on celery stalks and kale altogether 3.687,81 € ugly. According to the invoice from IMO GmbH dated 14.02.2014 (Exhibit K 10) the plaintiff paid more to clarify a finding of terbutylazine and DDT in soil samples 60,69 € ugly. According to the N GmbH invoice dated 03.02.2014 (Exhibit K 10) the plaintiff paid for 16 LUFA analysis 1.915,30 € ugly. The O Marktgenossenschaft presented the plaintiff with an invoice dated 30.11.2013 (Exhibit K 10) due to "losses from claims" an amount of 1.000,00 € billed.
15

The plaintiff then turned to the defendants and other farmers, who cultivated neighboring areas, and asked her to, Information about the pesticides you use and the times, where these were deployed, granted. To this end, he submitted a questionnaire to the defendants and farmers. The defendants provided information by filling out the questionnaire, while other farmers failed to comply.
16

The defendant to 1) shared with information from 06.11.2013 (Annex K3) With, he have am 14.10.2013 a 19:00 clock used the Malibu pesticide on his field B. The defendant to 2) shared with information from 06.11.2013 (Appendix K7) With, that he?.10.2013“ the pesticide Malibu on his field D-Str. brought out. The defendant to 3) shared with information from 02.11.2013 (Annex K9) With, that he am 18.10.2013 applied the pesticides Malibu and Arelon.
17

The plaintiff challenged the defendant 1) with a legal letter dated 22.11.2013 (Annex K4) with a deadline of 06.12.2013 unsuccessfully to pay a deduction on the damage allegedly incurred in the amount of 24.000,00 € up. The plaintiff challenged the defendant 2) with a legal letter dated 22.11.2013 (Annex K8) with a deadline of 06.12.2013 unsuccessfully to pay a deduction on the damage allegedly incurred in the amount of 17.000,00 € up.
18

In each case, the plaintiff filed an application dated 19.11.2013 also against the defendants 3) and 4) independent evidentiary proceedings before the district court of Paderborn, which the district court of Paderborn by decision of 05.12.2013 for simultaneous negotiation and decision using the file number 4 OH 22/13 mortgage. The expert P responded to the question of the cause of pendimethalin- Burden and the amount of the damage suffered by the plaintiff in each case an expert opinion dated 04.06.2014.
19

The plaintiff alleged, he was no longer able to market the products from the disputed fields as organic goods and was no longer able to use them in any other way. The reason for this is, that the defendants had used the active substance pendimethalin on the neighboring fields and that this had happened as a result of drift, that this active substance has settled on its respective fields. Is, The plaintiff, operate since 1989 an organic farm and is regularly inspected by the inspection body commissioned by him. The use of pesticides by himself is therefore excluded. This also results from the existing, but relatively low load on its surfaces.
20

The damage could have been avoided by the defendants if they had used suitable drift-reducing nozzles, which, however, were not used by them. This follows from this, that the control reports submitted by the defendants on the sprayers they used did not contain any information on compliance with the drift reduction classes. A drift from the defendant's areas would have occurred if the necessary precautionary measures were taken, in particular suitable nozzles and use only when there is no wind, can be avoided. The causation of the spraying measures of the defendant results from this, that the expert P himself took samples from the contaminated plants and soil on his fields in the independent evidentiary proceedings and found them, that the pollutant concentration decreases, the further away the expert measured from the defendant's fields. With regard to the defendants 3) and 4) should also be taken into account, that not only the prevailing wind direction, but also the thermals contributed to the drift, because on 09.10.2013 and spring-like climatic conditions had prevailed in the following days.
21

The plaintiff argued, dass die Beklagten zu 1) to 4) liable for damages or. are subject to compensation. A claim for compensation arises from § 906 Abs. 2 Sentence 2 BGB. Furthermore, the defendants were liable 1) to 4) as joint debtor according to § 823 Abs. 1 BGB because of the violation of organizational obligations and according to § 823 Abs. 2 BGB i.V.m. § 6 PflSchG.
22

With regard to the amount of the respective damage, reference should be made to the amounts calculated by the expert P in his respective reports, however with the difference, that with regard to the defendant 1) and 3) claimed damage, The plaintiff, contrary to the assumption of the expert in the following year not spring spelled, but was only able to grow field beans. According to the variety list of the Federal Office for Plant Varieties, no certified summer spelled was available. That's why he had to resort to the broad bean. This resulted in higher consequential damage than the expert had calculated in his report.
23

The defendant to 1) was therefore to pay him 40.264,45 € committed. The marketing damage amounts to 35.257,95 €. Because of the circumstance, that he was only able to grow field beans instead of winter spelled, be a further damage to him in the amount of 4.981,50 € incurred. Plus a flat fee of 25,00 € This results in a total damage of 40.264,45 €.
24

The defendant to 2) be to him for payment of 21.541,99 € committed. The marketing damage amounts to 17.780,87 €. Because he was only able to grow one summer fruit instead of winter spelled, be a further damage to him in the amount of 3.736,12 € incurred. Plus the flat-rate fee of 25,00 € there is a total damage in the amount of 21.541,99 €.
25

The defendant to 3) must him - as far as still of interest for the appeal instance - a total damage in the amount of 10.218,22 replace €. The marketing damage amounts to 8.937,89 €. Because of the circumstance, that he was only able to grow field beans instead of winter spelled, be a further damage to him in the amount of 1.618,89 € incurred. Plus the flat-rate fee of 25,00 € results in the amount of damage in the amount of 10.581,78 €.
26

In addition, the defendants would have to pay him analysis costs totaling 6.663,80 replace €.
27

The plaintiff last applied,
28

1. Den Beklagten zu 1) to condemn, to him 40.264,45 € plus interest in the amount of 5 percentage points from this since 07.12.2013 as well as costs of extrajudicial legal prosecution in the amount of 1.590,91 € plus interest in the amount of 5 percentage points to be paid from this since lis pendens,
29

2. Den Beklagten zu 2) to condemn, to him 21.541,98 € plus interest in the amount of 5 percentage points from this since 07.12.2013 as well as costs of extrajudicial legal prosecution in the amount of 1.100,51 € plus interest in the amount of 5 percentage points to be paid from this since lis pendens,
30

3. Den Beklagten zu 3) to condemn, to him 37.472,41 € plus interest in the amount of 5 percentage points from this since 05.12.2013 as well as costs of extrajudicial legal prosecution in the amount of 1.590,91 € plus interest in the amount of 5 percentage points to be paid from this since lis pendens,
31

4. the defendant to 1) to 4) to be sentenced jointly and severally, to him 6.663,80 € plus interest in the amount of 5 Percentage points to be paid from this since lis pendens and
32

5. Den Beklagten zu 4) to condemn, to him 16.175,02 € plus interest in the amount of 5 percentage points from this since 07.12.2013 as well as costs of extrajudicial legal prosecution in the amount of 808,13 € plus interest in the amount of 5 percentage points to be paid from this since lis pendens.
33

The defendants have applied,
34

dismiss the action
35

The defendants have claimed, having worked with approved equipment from a technical point of view. In each case, drift-reducing nozzles were used.
36

With regard to the defendant 3) the expert P found with regard to the area G of the plaintiff, that a drift only during a spraying in the time between 7:00 clock and 15:30 o'clock could have taken place, while at a later point in time the cause could no longer be clarified. However, it is not certain, that he, The defendant to 3), the field in front 15:30 sprayed clock.
37

In the case of area Q, according to the results of the investigations by expert P, there was a drift 09.10.2013 aus. The findings of the expert P for the went in the same direction 10.10.2013. Regarding the defendant 4) the expert P stated explicitly, that a drift from his property could in no way have become the cause. This proves, that other causes or. other causes could be considered. Due to strong air movements, measures by other farmers in the area could also have become the cause. Due to these suspected causes, the result of the respective expert opinion of the expert P is called into question in this respect, that no conviction of the court could be based on that. However, the plaintiff must provide full proof in accordance with § 286 provide ZPO.
38

A much more plausible explanation for the burden on the plaintiff's land lies in this, that he had applied pesticides himself, even if this should not be assumed of the plaintiff as the owner of an organic farm. There is also the possibility, that the plaintiff had already harvested his land, when they applied their pesticides. The plaintiff made no specific submissions, when he had harvested the fields. Finally, the seedlings used by the plaintiff could already have been contaminated.
39

The defendants denied the damage alleged by the plaintiff in detail with ignorance. They also denied, that the asserted analysis costs are due to the disputed claim.
40

The regional court dismissed the action after hearing the parties personally and an additional oral hearing by the expert P on 14.03.2016 announced verdict (published in juris and BeckRS 2016, 134098) abgewiesen. In support, it stated, that a compensation claim under neighboring law analogous to § 906 Abs. 2 Sentence 2 BGB not come into consideration. After the evidence had been taken, the Chamber had not come to a conclusion, that the residues of the plant protection product found were caused by the defendants. The plaintiff has this proof according to § 286 have to provide ZPO. He didn't succeed.
41

Regarding the plaintiff's area K and the defendant's area R to 4) this results from the unassignable wind conditions. at the 22.10.2013 there was a south wind, so that the drift could not have started from the area R. This is also on 30.09.2013 or. at the 01.10.2013 der Fall gewesen.
42

This also applies to the area Q and the adjacent field of the defendant 3 (j). There is a drift here due to the wind direction from the south-west 09.10.2013 and 10.10.2013 aus. The expert P added to this during his oral examination, that the drift could come from the neighboring fields of farmers S and Sander. There could also be no decreasing concentration from the direction of the defendant's field 3) to be determined.
43

Regarding the plaintiff's area G and the defendant's area H 3) have a decreasing concentration from the direction of the defendant's field 3) can be determined. Here, however, it is unclear, when the defendant to 3) at the 18.10.2013 applied the pesticide. Should this be between 7:00 clock and 15:30 o'clock had been, could the wind directions be from the west or. Speak northwest for a drift. After 15:30 However, according to the findings of expert P, the wind direction had changed, so that the cause of the active ingredient residues cannot be clarified.
44

With regard to the defendant's area C and the adjacent area B 1) have a decreasing concentration of active ingredient from the direction of the defendant's field 1) ergeben. Also the wind direction from southeast and the wind speed between 2,5 and 2 m/s am 14.10.2013 speak for a possible drift. This also applies to the plaintiff's area E and the defendant's area 2) D street am 24.10.2013 at a wind speed of 1,4 m/s and the determined wind directions. However, expert P had pointed this out in particular during his oral examination, he couldn't rule it out, that pesticides had been brought in from areas further away due to thermal processes. These phenomena of long-distance transport or. thermals could also occur on warm autumn days. According to the expert's research into the weather data following the oral hearing, the month was October 2013 been exceptionally warm with partly spring-like weather. The high temperatures would have favored thermals as a damaging cause. According to the experts, the thermals were therefore the most likely cause. It shouldn't be misunderstood, that a causation by the defendant "at least" with regard to the areas C, E and G had been considered "partially" very probable by the expert P. Nonetheless, the defendant could not claim that the damage was caused with the necessary conviction 1) to 4) to be determined. The expert P had namely in the oral hearing and also in his "addendum" of 01.02.2016 Due to the high temperatures, a long-distance transport is classified as highly probable.
45

In addition, it is undisputed that there are also areas of other conventional farmers in the vicinity of the plaintiff's areas, who had also applied herbicides during the period at issue. Therefore, it could not be determined that the contamination was caused by the defendant through drift "and/or" thermal conditions. This applies in particular to plaintiff areas E, K and Q. In the case of areas K and Q, the plaintiff himself stated, also suspected other field neighbors. Area E is very close to area K.
46

That in the case of areas a decreasing concentration of active substance towards the center from the direction of the defendant's fields 1) to 3) had been ascertained, is not sufficient to form a conviction. The expert P did not claim, that this phenomenon cannot also occur in thermal processes and long-distance transport. Finally, the expert P also found a decreasing concentration for the area Q, here, however, the cause of the unsuitable wind conditions is considered unclear. A prima facie evidence does not benefit the plaintiff. In the present case there is no typical course of events as a basis for such a facilitation of proof. This results in particular from the possibility of long-distance transport.
47

Claims for damages from §§ 823 Abs. 1, 830, 823 Abs. 2 BGB i.V.m. § 6 PflSchG are also not given, because no infringement of property by the defendants could be established. The expert was also unable to determine any violation of the requirements of "good professional practice"..
48

The plaintiff is appealing against this judgment, which he only against the defendant 1) to 3) directs and with which he towards the defendant 3) only claims regarding the area G pursued. He means, that taking into account the publication “New application regulations for plant protection products with the active ingredients pendimethalin and prosulfocarb (Annex BER K12, Bl. 538 d.A.) is even more plausible, that the effects of the fields of the defendants 1) to 3) had taken place. In addition, the defendants had to 1) to 3) disregards the requirements of Annex III of Directive 2009/128/EC. The district court should have applied the principles of prima facie evidence in its favour. The district court assumes so itself, that the responsibility of the defendant to 1) to 3) regarding the areas E, C and G had been determined by the expert. The prima facie evidence applies to typical sequences of events and allows conclusions to be drawn about causes based on general life experience. Therefore, the proof is given with regard to these areas. The prima facie evidence does not apply only then, if it is refuted by the defendants. But that didn't happen. This is necessary, that other causes of damage seemed seriously possible. Pure "possibilities of thinking" are not sufficient in this respect. Rather, concrete circumstances would have to be presented and proven, from which other processes would arise. The defendants did not even make any specific submissions in this regard, which other conventional farmers would have applied herbicides in the vicinity of his areas and at what times. Such causation by other farmers was also not demonstrated by the defendants.
49

He himself did not present any alternative causes. As far as he had turned off a possible thermal as the cause of the damage, this refers only to that of the defendants 1) to 3) applied plant protection products. That the thermals on others, areas that are further away, had not been presented by him. He did that with a letter dated 08.02.2016 also expressly contradicted. The findings of expert P on the possibility of long-distance transport due to thermals included the drift he had ascertained from the defendant's areas 1) to 3) not from.
50

the defendant to 1) to 3) would have admitted their respective causal contribution. This respective contribution to causation cannot be called into question by a supplementary explanation of other possible causes. The defendant is entitled to drift as the cause of the damage 1) to 3) fixed. Only one other cause of damage cannot be ruled out. For such a case, the BGH has the application of § 287 ZPO approved. An impact from other fields is excluded. In a radius of about 300 m around the affected area C (vgl. Overview map BER K6, Bl. 530 d.A. and summary table BER K7, Bl. 531 F. d.A.) – although there are conventionally farmed areas, marked with "conv. 1“, "conv. 2“, "conv. 3“, "conv. 4“, "conv. 5“, "conv. 7“, "conv. 8' and 'conv. 9“. However, no pendimethalin had been applied to these. The other areas are organic, grassland- and nature conservation areas.
51

As far as field E is concerned (vgl. Overview map BER K8, Bl. 533 d.A. and summary table BER K9, Bl. 534 F. d.A.) – there are also conventionally farmed areas, marked with "conv. 1” to “conv. 18“, in the near vicinity. However, the farmers providing the information had stated, not to have used pendimethalin. The other areas are organic- and green spaces.
52

He farms the areas south and north of field G. In a radius of about 300 m around the affected area E (vgl. Overview map BER K10, Bl. 536 d.A. and summary table BER K11, Bl. 537 d.A.) – there would be conventionally cultivated areas, marked with "conv. 1” to “conv. 10“. However, the farmers providing the information had stated, not to have used pendimethalin.
53

The district court had only inadequately evaluated the findings of the expert P and based his judgment on them. It can by no means be assumed, that the decreasing concentration of active substance towards the middle of the field was cited by expert P as the sole indication of causation by the respective defendant. The undisputed course of the use of pollutant-containing substances on the neighboring fields by the defendants 1) to 3) and the contamination of crops in his fields clearly suggests that the defendant was at fault 1) to 3). Alternative causes are not seriously considered. These were neither specifically presented by the defendants nor was evidence provided.
54

With regard to the drift, the defendants acted carelessly. Is, The plaintiff, have with brief dated 08.02.2016 substantiated denied, that the defendants had used drift-reducing nozzles. In addition, the district court should have collected the expert evidence offered. The expert P did not examine the devices used by the defendant himself, but only rely on test reports, which had been handed over to him by the defendants. The expert P confirmed at his supplementary hearing, that, in his view, drift from the defendant's fields to 1) to 3) had become causal. The thermals only represent an additional possibility and invalidate the evidence of the drift that occurred from the defendant's fields 1) to 3) not.
55

The applicant claims,
56

the judgment of the district court, CERTIFICATE 4 The 420/14, from 14.03.2016 to change and
57

3. condemn the defendants jointly and severally, to him 6.663,80 € plus interest in the amount of 5 Percentage points to be paid from this since lis pendens and
60

4. Den Beklagten zu 3) to condemn, to him 10.581,78 € plus interest in the amount of 5 percentage points from this since 07.12.2013 as well as costs of extrajudicial legal prosecution in the amount of 887,03 € plus interest in the amount of 5 percentage points to be paid from this since lis pendens.
61

Die Beklagten beantragen,
62

dismiss the appeal.
63

The defendants defend the judgment under appeal. Sie meinen, because of the circumstance, that the plaintiff expressly consents to the dismissal of the claim against the defendant 4) have accepted, the dismissal of the complaint also works in their favour. If in favor of the defendant 4) stand firm, that the plant protection product he had applied to neighboring areas had not drifted onto the plaintiff's fields, it is imperative that a lack of causation must also be assumed in their favour.
64

The plaintiff also stated, asking other neighboring farmers for information about the use of herbicides. The plaintiff also claimed against the neighboring farmer S in the evidentiary proceedings. These other neighbors could also be considered as the cause. The plaintiff's argument about the management of the surrounding fields is disputed with ignorance. Irrespective of this, this presentation cannot be used as a basis for the assessment, especially since a substantiated presentation on possible spraying measures by the field neighbors is missing and considerable, that the alleged statements of the field neighbors could have been made under the impression, that the plaintiff is conducting the local legal dispute because of the application of the drug pendimethalin. The plaintiff could not invoke the “New application regulations for plant protection products with the active ingredient pendimethalin”., since disputed measures from the year 2013 seien.
65

The prima facie evidence does not apply to their detriment. speak against, that the defendant to 4) applied pesticides, without these having reached the plaintiff's land. Furthermore, speak against it, that other farmers could be responsible. Finally, the expert P considered the thermals as a further cause of the damage to be highly probable. The plaintiff himself referred to the thermals as a further cause and did not limit this to just that, that the phenomenon applies only to the areas of the defendants 1) to 3) relate. It cannot be asked of them either, to be more specific about it, which other farmers. other causes could be considered. You, the defendants, do not meet the explanations in this respect- and burden of proof. This also applies to causation by long-distance transmission. Again, no further details could be asked of them. Finally, the plaintiff himself pointed out this causal connection.
66

You, the defendants, would also have provided evidence of other causes of damage and they would have their causation or. Contributions to causation are by no means granted. Rather, a causation by them will continue to exist – as in the first instance – denied. Also noteworthy, that he, The defendant to 2), only injected when the plaintiff - on 21. or. 22.10.2013 – have already harvested the fields, which had already been asserted in the first instance.
67

The Senate has the plaintiff and the defendant to 1) to 3) personally heard and additional evidence collected by questioning the expert P in the oral hearing of 28.11.2017, by obtaining the expert opinion of 21.09.2018 and the supplementary report of 14.09.2019 of the expert Dipl.-Ing. agr. T (below: Expert T), by obtaining the opinion of the expert Dipl.-Ing. You (below: Expert U) from 31.12.2020 and questioning of the expert U in the oral hearing on 28.10.2021. Due to the result of the personal hearings and the taking of evidence, the content of the report of 21.09.2018, of the supplementary report of 14.09.2019 and the report of 31.12.2020, the contents of the minutes of 28.11.2017 and 28.10.2021 and the rapporteur's notes summarizing the main result of the personal hearings and the main result of the taking of evidence 28.11.2017 and 28.10.2021 referenced. The files of the independent evidentiary proceedings 4 OH 22/13 LG Paderborn were available and were the subject of the oral hearing.
68

II.
69

The plaintiff's appeal is admissible and justified to the extent evident from the tenor of the judgment, otherwise unfounded. The lawsuit is admissible, but only to the extent evident from the tenor of the judgment.
70

1.
71

The plaintiff stands against the defendant 1) a claim of 40.239,45 € according to § 906 Abs. 2 Sentence 2 BGB analogous to.
72

A)
73

Analog § 906 Abs. 2 Sentence 2 BGB there is a right to compensation under neighboring law, if one property has an impact on the neighboring property, this influence is unlawful and therefore does not need to be tolerated, the affected owner or holder is prevented for special reasons, this effect according to §§ 1004 Abs. 1, 862 Abs. 1 to prevent the Civil Code, and he suffers disadvantages as a result, which exceed the reasonable extent of an impairment that can be accepted without compensation (vgl. BGH, Judgment of 18. December 2020 - V ZR 193/19 – NJW-RR 2021, 610; BGH, Judgment of 09. February 2018 - V ZR 311/16 - NJW 2018, 1542; BGH, Judgment of 27. October 2017 - V ZR 8/17 - NJW 2018, 1010; BGH, Judgment of 30. More 2003 - V ZR 37/02 - NJW 2003, 2377; BGH, Judgment of 23. February 2001 - V ZR 389/99 - NJW 2001, 1865; BGH, Judgment of 22. July 1999 - III ZR 198/98 - NJW 1999, 3633; BGH, Judgment of 02. March 1984 - V ZR 54/83 - NJW 1984, 2207; LG Frankenthal, Judgment of 17. April 2018 – 4 The 383/15 – quoted from juris).
74

against it, which the Senate need not decide, under circumstances to be examined in more detail, a direct application of the § providing for a compensation claim 906 Abs. 2 Sentence 2 BGB under consideration, if the use of the "Malibu" spray is a customary local use of the defendant's field 1) represented and the defendant to 1) could not prevent the proven impairment in a reasonable manner, i.e. would have complied with the rules of good professional practice. § 906 Abs. 2 Sentence 2 In any case, the German Civil Code is – analogously – applicable, because the defendant 1) - as will be explained later - did not do this, the influence was therefore unlawful and therefore did not have to be tolerated, but the plaintiff was prevented as the owner of the neighboring property, to prevent them (vgl. BGH, Judgment of 23. February 2001 - V ZR 389/99 - NJW 2001, 1865; BGH, Judgment of 02. March 1984 - V ZR 54/83 - NJW 1984, 2207; LG Frankenthal, Judgment of 17. April 2018 – 4 The 383/15 – quoted from juris). This is sufficient, if there is a factual obligation to tolerate (vgl. BGH, Judgment of 30. More 2003 - V ZR 37/02 - NJW 2003, 2377). It can result from this, among other things, that the person concerned did not recognize the danger to be averted in time and was also unable to recognize it; in this case the claim is not subsidiary (vgl. BGH, Judgment of 01. February 2008 - V ZR 47/07 – quoted from juris; BGH, Judgment of 30. More 2003 - V ZR 37/02 - NJW 2003, 2377). Present is neither presented nor otherwise apparent, that the plaintiff knew of the impending application of the Malibu agent or how he could have prevented the impact on his field. The plaintiff was therefore unable to counteract the damaging effects of herbicide drift by claiming primary legal protection, e.g.. by influencing the defendant 1) or requesting an injunction (vgl. LG World, Judgment of 11. January 2013 – 7 The 88/12 – quoted from juris), impede. Other legal protection could not be obtained for the plaintiff in view of the passage of time.
75

B)
76

The plaintiff is authorized to act.
77

In the case of compensation claims under neighbor law, the owner or. the owner of the affected property. This is the plaintiff here. The plaintiff cultivated area C, so that he is authorized to act as a user. The compensation claim under neighbor law also extends with the corresponding application of § 906 Abs. 2 Sentence 2 BGB in any case on the owner (vgl. BGH, Judgment of 30. More 2003 - V ZR 37/02 - NJW 2003, 2377). Because the compensation claim serves as compensation for the exclusion of primary defensive claims (vgl. BGH, Judgment of 23. February 2001 - V ZR 389/99 - NJW 2001, 1865), which are also due to the owner (§ 862 Abs. 1 BGB) and him one of the rights of the owner from § 1004 Abs. 1 BGB offer similar protection against interference (vgl. BGH, Judgment of 30. More 2003 - V ZR 37/02 - NJW 2003, 2377).
78

C)
79

The defendant to 1) is passively legitimate.
80

The compensation claim according to neighbor law analogous to § 906 Abs. 2 Sentence 2 BGB requires, that the defendant to 1) responsible for damaging property by exposure to the drug pendimethalin on plaintiff C's field (vgl. BGH, Judgment of 27. October 2017 - V ZR 8/17 - NJW 2018, 1010).
81

According to the result of the evidence that has been taken, it is clear, that as a result of drift on the part of the defendant 1) at the 14.10.2013 released active ingredient pendimethalin, which is undisputedly contained in the herbicide Malibu, has reached the plaintiff's field and there a maximum permissible value for organic farming of 0,01 mg/kg exposure to the active substance pendimethalin.
82

aa)
83

The compensation claim is directed against the user of the neighboring property who caused the impact as a disruptive factor. The compensation claim under neighbor law is not only directed against the owner of the impairing property, but also against the user as such, which determines the type of use of this property (vgl. BGH, Judgment of 30. More 2003 - V ZR 37/02 - NJW 2003, 2377; BGH, Judgment of 24. January 2003 - V ZR 172/02 – quoted from juris), so here to the defendants 1), since the field B 14 was managed by him.
84

bb)
85

Undisputedly, the defendant 1) at the 14.10.2013 das Herbizid Malibu, which undisputedly contains the active ingredient pendimethalin, applied to his field B.
86

On the field of plaintiff C, it is also undisputed that the drug pendimethalin had an effect, which is also evident from the test report dated 29.10.2013 (Anlage K1), according to which a pendimethalin content of 0,011 mg/kg, what the maximum allowable of 0,01 mg/kg exceeded, revealed, can be deduced freely.
87

cc)
88

Based on the evidence that has been taken, it is clear, that of the defendant's property too 1) B 14 as a result of applying the herbicide Malibu on 14.10.2013 by direct drift of the active ingredient pendimethalin onto the property of plaintiff C (Beat 4a) reached, acted on this and the maximum permissible value of 0,01 mg/kg exceeding load.
89

(1)
90

The active substance pendimethalin is an effect within the meaning of § 906 BGB. You must be, which are sprayed on a property and then reach the neighboring property through the wind or similar causes, are effects i.S.d. § 906 BGB (vgl. BGH, Judgment of 02. March 1984 - V ZR 54/83 - NJW 1984, 2207; OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris). At least that's the case then, if it is a concentration, which impairs the use of a neighboring property for organic farming based on comprehensible criteria, which has to be taken into account, that both ecological and conventional farming can be practiced as permissible types of farming and that mutual consideration is therefore required.
91

(2)
92

According to the standard of proof in § 286 ZPO proven, that the pendimethalin from the defendant's field 1) due to drift when spreading on 14.10.2013 got to his field.
93

The expert U has stated convincingly, that, with a probability bordering on certainty, a direct drift of the active substance during application by the defendant 1) to the plaintiff's culture; an additional, rather minor contamination by thermal volatilization or displacement of particles from the defendant's field 1) or a thermal volatilization or displacement from the radius of up to 1.000 m or long-distance transport cannot be ruled out, but is of a subordinate nature. Moreover, according to the expert's findings,, that the plaintiff's own application of the active substance pendimethalin is just as impossible as an original contamination of the seedlings.
94

The Senate follows these convincing statements of the expert, which he in the Senate appointment on 28.10.2021 presented in depth.
95

(A)
96

Based on the plant samples taken by expert P, it is certain, that through the application of the active substance on the defendant's field 1) Pendimethalin landed on the plaintiff's field by direct drift.
97

(aa)
98

The expert U did explain the sample taking by the expert P, that the sampling should be carried out according to the corridor sampling also used by the expert V and by him otherwise and in the absence of a corresponding legal regulation the rule of thumb applies, that about 50 single pieces 1 ha can be found. Nevertheless, the taking of the samples by the expert P cannot be criticized from a technical point of view and the samples taken by him represent an adequate factual basis, in order to be able to carry out an appropriate assessment. With regard to field C, the expert P has values spaced by 5 m to the edge of the field in the amount of 0,068 mg/kg and at intervals of 15 m to the edge of the field in the amount of 0,053 mg/kg determined.
99

(bb)
100

Expert U made a convincing determination based on these values, that the actual data situation allows a definitive statement to that effect, that a direct drift from the defendant's field too 1) Template. Der Umstand, that the concentration decreased with increasing distance from the edge of the field, according to the findings of the expert, clearly speaks for a direct drift.
101

The prevailing wind at the time of application would also speak in favor of this- and weather conditions. The defendant to 1) has the funds 19:00 o'clock. According to the expert's findings, due to the special features, that only average values of a series of measurements would be formed, there could also have been brief wind currents from different directions, the one contamination from the defendant's field 1) to the plaintiff's field and short-term shifts in wind direction and turbulence could have led to drift damage, a more detailed differentiation of the wind speeds without measurements during the applications afterwards can no longer be made. Corresponding weather services would also not have been able to provide sufficiently detailed measurement data. Nevertheless, on the basis of the wind data from the expert P, it can be assumed, that between 18:10 clock and 21:00 Clock a relatively stable wind direction from the direction of the defendant's field 1) to the plaintiff's field and, due to the special features of the terrain, there were local turbulence and brief changes in direction, which favored drifting during use. The defendant's objection is thus met, that the wind movements assumed by expert U had actually not been determined at all, not. Because the expert U did not assume the existence of certain wind loads, but explicitly stated, that cannot be ascertained, what wind speeds were actually present and whether there were gusts. However, due to the nozzle used in connection with the application pressure and the high concentration, he considered contamination as a result of direct drift during application to be almost certain.
102

(cc)
103

Thermal influences and the resulting possible outgassing of the active substance pendimethalin and the associated long-distance transport are negligible according to the expert's findings.
104

The expert has determined, that pendimethalin only decreases at temperatures 20 °C tend to volatilize, since this active ingredient only begins at 20° C, to become active. The Federal Office for Consumer Protection and Food Safety carried out corresponding investigations. These investigations would have a vapor pressure phase for 20 °C determined. In this respect, pendimethalin can also be 20 °C the active substance evaporate. However, this can no longer be calculated. Only from 20 °C there is a measurable evaporation.
105

Here the application took place on 14.10.2013. According to the convincing findings of expert U, however, outgassing due to thermal influences and the long-distance transport associated with them could not explain the concentrations measured on the plaintiff's field. According to the findings of expert U, thermally induced outgassing could have been considered for just a few days. On the other hand, thermally induced outgassing would not be possible, to explain the high concentrations found.
106

a)
107

First of all, on 22.10.2013 only during 7 hours a temperature of 21,0 °C and am 26.10.2013 while 3 hours a temperature of 20,0 °C prevailed, so that only on these days was there a potential risk of indirect drift through thermal volatilization. The expert U has in his report (there p. 24) Temperature data from the weather station W evaluated. The expert found that, that there is meaningful weather data for the affected location A at least for October 2013 have not given. Nevertheless, the temperature data of 20 km distant weather station W can be taken as a basis. Given the circumstance, that the weather station W on about 140-143 m above sea level, while A is about 350 m above sea level, can usually be assumed, that – with the exception of inversion weather conditions – it gets colder with increasing altitude, so that the corresponding temperatures at best and in this respect in favor of the defendant 1) point out to high values. In addition, due to the different locations of the weather station and the affected fields, differences of 1° to 2 °C possible. However, the temperature values of the weather station W used by the expert U are sufficiently meaningful. As far as the expert P made the determination, that it is in October 2013 felt quite warm, the expert explained this allegedly contradicting the temperature data used by him in a comprehensible way, that in October there are also values of 16° to 17° or even just below 20° C 13 °C felt as distinctly warm and therefore a distinction had to be made between a temperature that was merely felt and that which was actually determined.
108

The formation of concentrations of 0,068 mg/kg bzw. 0,053 mg/kg is, according to the expert's findings, practically impossible due to volatilization and transport within this low time intensity, since within these ten hours on two separate days a considerable part of the applied manure should have come loose and contaminated the vegetables, especially since it is significant, that between deployment and sampling 92 days would have lain and the half-life at 90 days, so that such a high concentration can only arise through direct drift during application. If it comes to thermal evaporation, part of the active substance is taken up by the soil and the plants, so that concentrations in the air are only in the range of nanograms per cubic meter.
109

In addition, it is significant, that the period of 48 Hours after application of the active substance is the actual risky period, in this case the period from 14.10.2013 to 16.10.2013, within which evaporation is to be expected, and then the evaporation decreases significantly. However, temperatures that would enable evaporation were not prevailing during this period, but only much later on 22.10.2013 and at 26.10.2013, so at times, at which the evaporation potential had decreased significantly.
110

b)
111

As far as the expert U in his report (there p. 28) for the period from 03. to 07.09.2013 on the basis of the sufficiently meaningful temperature data from the weather station W temperatures of well above 20 °C detected, although he did, that such temperatures could favor evaporation. However, be significant, that the rehearsals first 90 days after the application had been taken. Calculate from the time of the respective application in October 2013 to the aforementioned period at the beginning of September 2013 zurück, so be more 50 days to add, so that himself 140 days, which are to be used as a basis for recalculating the amount of active substance. So if the active substance from another field in the period from 03.-07.09.2013 would have reached the plaintiff's contaminated field, should have been extremely high values, which a long-distance transport cannot explain, as this only involves concentrations in the range of nanograms per cubic meter of air. But this is a relevant long-distance transport for the period from 03. to 07.09.2013 rule out.
112

(dd)
113

Based on the evidence that has been taken, it is also clear, that the active ingredient pendimethalin did not reach plaintiff C's field from other surrounding fields.
114

a)
115

Indisputably, the farmer brought X to the facility BER K6 (Bl. 530 d.A.) and the plant BER K7 (Bl. 531-532 d.A.) designated field "conv. 2“ no pendimethalin out. Rather, farmer X merely plowed the field. Therefore, pendimethalin could not have acted on plaintiff's field from that field.
116

b)
117

That a possible impact of the as "conv. 3' and 'conv. 4“ marked fields has run out, can also be ruled out.
118

Since on the field "conv. 3Wheat and barley were grown, would have end of October 2013 the agent must be injected. But the expert did, that in the case of a direct drift the concentration would have decreased. So if a drift from the fields "conv. 3' and 'conv. 4' would have taken place, would have been within 10 m not so clear differences in concentration can result in the plaintiff's field. Rather, there would have been a uniform mixture and the values would have had to adjust. Based on a comparison of curves, the expert made a comprehensible determination, that an aerosol cloud assumed to rise from these fields initially spread over the adjacent fields "conv. 2“, "conv. 1' and 'Bio 1' should have reached the plaintiff's field. The concentration in the aerosol cloud would have been significantly higher at the beginning and then flattened out relatively quickly, so that up to the plaintiff's field quite uniform pollutant values would have resulted.
119

c)
120

Furthermore, it can be ruled out, that a possible impact from the as "conv. 6“ marked field is done, even if assumed, that on the field "conv. 6Winter oilseed rape would have been cultivated and the pendimethalin-containing agent "Stomp-Raps" would have been applied. Because according to the expert's convincing statements, the wind had come from the south/south-east. If pendimethalin were to be removed from the field "conv. 6" came, but would have been expected, that the sampling points respectively 5 m and 15 m from the edge of the field would have delivered the same analysis results, since a uniform situation would have existed. An - assumed - aerosol cloud would be from the field "conv. 6' and should have first reached the plaintiff's field via the adjoining field 'Bio 1'. The expert has shown the resulting decrease in concentration using a curve, so it can be assumed, that the concentration would have been significantly higher at the beginning and then dropped relatively quickly and then leveled off at a uniform value. But then a subordinate, vom Feld "conv. 6 emanating effect cannot explain the concentration gradient, so that can be ruled out, that a drift from the field "conv. 6' might have taken place.
121

d)
122

Can also be ruled out, that a possible impact from the as "conv. 8“ field has gone out. According to the findings of the expert U would then, if from this field "conv. 8“ Pendimethalin would have reached the plaintiff’s field, the concentration gradient detected by the samples taken must be reversed. Since the concentration from the field "conv. 8' should have decreased from the western to the eastern side of the plaintiff's field, would have the 15 m from the edge of the field must give a higher value than that 5 m sample taken from field edge. A drift from the field "conv. 8According to the values determined for the samples taken, it cannot have taken place.
123

e)
124

That a possible impact from the fields "conv. 5“, "conv. 7' or 'conv. 9' could be seriously considered, is neither shown nor otherwise recognizable.
125

ee)
126

On the basis of the findings of the expert is also to be ruled out, that the plaintiff himself applied the active substance pendimethalin to his area or that the seedlings were contaminated.
127

(1)
128

That the plaintiff applied such an active substance, the expert U ruled out with the statement, that in this case the active substance should also have been detectable in the soil, which was not the case here, so that a direct application of the active substance by the plaintiff can be ruled out.
129

(2)
130

The expert U also stated convincingly, that contaminated seedlings could not explain the pollution of the plaintiff's fields. Taking into account the half-life of the active substance pendimethalin and the growth period of the plants from 150-200 days the seedlings should have been so highly contaminated, that they would have simply entered.
131

D)
132

The defendant's field too 1) consequential impairment is also essential.
133

When there is a significant impairment, is judged by the perception of a reasonable average person and the, what can be expected of him, taking into account other public and private concerns (vgl. BGH, Judgment of 27. October 2006 - V ZR 2/06 – NJW-RR 2007, 168; BGH, Judgment of 14. November 2003 - V ZR 102/03 - NJW 2004, 1037; BGH, Judgment of 26. September 2003 - V ZR 41/03 - NJW 2003, 3699; BGH, Judgment of 20. November 1992 - V ZR 82/91 - NJW 1993, 925; BGH, Judgment of 30. October 1998 - V ZR 64/98 - NJW 1999, 356; LG Arnsberg, Judgment of 08. January 2018 – 2 The 186/16 – quoted from juris). under § 906 Abs. 1 Sentences 2 and 3 BGB, only an insignificant impairment is to be assumed as a rule, if limit values in legal ordinances and general administrative regulations are complied with. It is noteworthy, that the in § 906 Abs. 1 Sentences 2 and 3 BGB mentioned limit- and guideline values should only be given importance, that exceeding the values is an indication of the existence of a significant impairment and compliance with or falling below the limit- or reference values indicate the insignificance of the impairment (vgl. BGH, Judgment of 13. February 2004 - V ZR 217/03 - NJW 2004,1317; BGH, Judgment of 06. July 2001 - V ZR 246/00 - NJW 2001, 3119). The materiality limit can therefore not be determined mathematically precisely with regard to the mere exceeding of limit values, but solely on the basis of the Senate's own assessment of the facts (vgl. BGH, Judgment of 27. October 2006 - V ZR 2/06 – NJW-RR 2007, 168).
134

Here the significance of the impairment does not result from state-defined values or bans on the use of pendimethalin, but from that, that the orientation value for the assessment as organic goods was exceeded for individual plants and the plants cultivated were therefore no longer marketable overall. Even a possible contamination of the grown plants with pesticides that are not permitted in organic cultivation was enough, to deprive the goods of marketability and to trigger a ban on marketing by the inspection body until the findings have been clarified. This represents a not inconsiderable impairment of their intended use, so that the impairment is significant (vgl. OLG Rostock, Judgment of 20. July 2006 – 7 You 117/04 - NJW 2006, 3650). Anything else could be considered, if private organizations would set such low limits for organic marketing, that legally permissible conventional agriculture would be made impossible or unreasonably difficult. This is for the value 0,01 mg/kg pendimethalin not presented in a comprehensible manner and otherwise not apparent, certainly not for the significantly higher actually determined contaminations.
135

It)
136

The plaintiff has no duty to tolerate.
137

aa)
138

There is therefore no obligation for the plaintiff to tolerate this, because the application of herbicides would be local practice. In this respect, the Senate proceeds from the submissions made by the defendant in the oral hearing before the Senate, which remained unchallenged, that at that time the drug pendimethalin in A had been used "in large quantities" by many other farmers. The defendant to 1) has also sprayed his field with an approved plant protection product containing the active ingredient pendimethalin in a manner customary in agriculture and thus used it as is customary in the area. Expert P expressly confirmed this (S. 20 his opinion of 04.06.2014).
139

To the defendant 1) it was up to him at the time of application of the remedy – despite the local custom of using the drug pendimethalin – take measures to prevent disruption, which were technically possible and economically reasonable for him (vgl. BGH, Judgment of 18. September 1984 – VI ZR 223/82 - NJW 1985, 47).
140

Regardless of the circumstance, that the burden of proof for the taking of such precautions rests with the defendant 1) carries (vgl. OLG Rostock, Judgment of 20. July 2006 – 7 You 117/04 - NJW 2006, 3650), is determined on the basis of the evidence that has been taken, that the defendant to 1) has not taken adequate, technically possible and economically reasonable measures to prevent drift. The expert U has stated convincingly, that the defendant to 1) violated good professional practice with the nozzle and application pressure he chose.
141

(1)
142

in § 3 PflSchG in the relevant version of 06.02.2012 is “good professional practice” regulated. The introduction of this term by the legislature can be traced back to the paradigm shift from purely economic agriculture to sustainable and environmentally friendly agriculture (vgl. OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris). Forerunners of “good professional practice” forms the concept of “proper agriculture”, used in older laws; this was (originally) proper farming defined as a management, which corresponds to the respective agricultural scientific expertise and agricultural practice, d.h. Proper agriculture must follow the technically justified agronomic rules (vgl. OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris). Proper farming, however, does not only include compliance with the recognized rules of agriculture, but also compliance with all relevant laws (vgl. OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris). The rules of good professional practice are public law standards of conduct for farmers (vgl. OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris).
143

under § 3 Abs. 1 No.. 1 PflSchG i.V.m. Annex III No. 3 According to Directive 2009/128/EC, the professional user of plant protection products must decide based on the results of the monitoring, whether and when he wants to apply plant protection measures. Sound and scientifically based thresholds are essential components of decision-making. When deciding on treatment against harmful organisms, if possible, the one for the affected region, the specific areas, to take into account the threshold values set by the crops and the particular climatic conditions. Which also includes, that the problem of drift is checked and avoided.
144

Even if only on 11.03.2016 the BVL issued requirements for the use of plant protection products containing pendimethalin, the defendant had to 1) nevertheless exhaust all possibilities at the time of application according to good professional practice in plant protection, to prevent drift. According to the updated principles for the implementation of good professional practice in plant protection (2010) he had to make a thorough selection for the use of each plant protection product and assess and minimize the risks of an application.
145

(2)
146

The defendant to 1) knew, that he applied a plant protection product containing the active ingredient pendimethalin to his field and that pendimethalin was not approved for the plaintiff's plants; applies to organic farms, that herbicides may only be used, if the active substances in Annex II of the VO EC No. 889/2008 in the from 01.01.2009 to 15.04.2014 valid version are listed as permissible; However, pendimethalin is not listed here and is then inadmissible. The defendant to 1) was therefore held, to avoid a drift - at least as far as technically possible and economically reasonable.
147

The defendant to 1) The expert has carried out the application on the basis of the information provided by 06.11.2013 (Annex K3) shown in detail and based on the droplet sizes specified by the manufacturer in relation to the application pressures (https://www.agrotop.com/service/duesentabellen/duesentabellen/tropfengroessen-in-abhaengigkeit-vom-druck/) set (S. 18 of the report from 31.12.2020) and considering the – already 2012 applicable and on the internet (https://www.landwirtschaftskammer.de/landwirtschaft/pflanzenschutz/technik/pdf/abdriftmindernde-duesen.pdf) retrievable – Drift reduction classes determined, that depending on the nozzle used and the corresponding pressure, a certain proportion is ejected in the form of sluggish drops, which cannot be drifted, while the rest of the drops are also in smaller and very small, driftable sizes will be emitted (S. 18 of the report from 31.12.2020).
148

The defendant to 1) undisputedly has a device from the manufacturer Rau, Type Rau-Spridomat with a working width of 12m and the Agrotop Airmix nozzle 110-05 with an application pressure of 2,2 used in cash. However, taking into account the drift reduction classes, this could only be done at a pressure of up to 1,0 bar a drift reduction of 90% be reached. At the actually selected pressure of 2,2 bar there was a risk of drifting from 50 % of the fine-drop portion. Would be from the defendant 1) a lower application pressure up to 1,0 been elected in cash, would have prevented drifting during application or. at least contain it, since with the nozzle used even one 90 %ige Drift reduction - at a pressure of 1,0 bar – would have been achievable.
149

As far as the defendants think, that improper spraying cannot be detected with the necessary certainty, For that reason alone this objection does not work, because they are not sufficiently familiar with the findings of the expert U, deal with. The expert U has clearly stated, that the defendant to 1) either a different nozzle should have been chosen or the active substance should have been applied with a lower pressure. The defendants do not dispute this and thus do not cast doubt on the findings of expert U.
151

Against the background, that at the time of application on 14.10.2013 of the celery immediately before or. was in the harvest and was therefore visually clearly perceptible, so that from the defendant's point of view too 1) this vegetable crop in the immediate vicinity posed a major risk when selecting pesticides, would the defendant 1), as the expert U has pointed out convincingly, either to choose a lower pressure, choosing a different crop protection product, the setting up of a safety strip at the edge of the field without application or to early communication with the plaintiff to plan the herbicide application, which could have prevented a drift, been obliged. The defendant is entitled to all previous measures 1) however, undeniably not taken.
152

That at least reducing the pressure would not have been possible or would have been uneconomical, is neither demonstrated, still recognizable elsewhere. The defendant to 1) did not present either, that it was essential for his harvest given the prevailing wind conditions, to apply the crop protection product and no other wind- or. wait for weather conditions (vgl. OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris). After all, he did it, that he until November - on condition, that there was no frost for two weeks – could have sprayed.
153

So it doesn't matter, whether the plaintiff should have accepted the application of the approved active ingredient in accordance with good professional practice in the area of tension between organic and conventional agriculture. Given the circumstances, it can be assumed, that the breach of good professional practice was the cause of the problem that arose.
154

F)
155

The extent of the compensation claim is determined by the principles, which apply to the assessment of the compensation for expropriation, and amounts to 40.239,45 €.
156

aa)
157

The content and scope of the compensation claim under neighbor law is determined by weighing up all the circumstances according to the principles of expropriation compensation; the claim is not a claim for damages, which – at least immediately – according to §§ 249 ff. BGB (vgl. OLG Zweibrücken, Decision of 26. June 2018 – 5 You 85/17 – quoted from juris). This is the difference to damages, that the state does not have to be created, that existed, if the disruption had not occurred; rather, the claim is limited to the elimination of the loss of assets caused by the disruption, whose replacement requires an evaluation decision (vgl. BGH, Judgment of 14. November 2003 - V ZR 102/03 - NJW 2004, 1037). Depending on the type of influence, he can therefore nevertheless claim full damages (vgl. OLG Zweibrücken, Decision of 26. June 2018 – 5 You 85/17 – quoted from juris). In the main, the compensation extends to the loss of assets caused by the disruption, in the event of disruptions to a commercial operation - as here - in particular the loss of earnings or. the lost profit (vgl. BGH, Judgment of 23. February 2001 - V ZR 389/99 - NJW 2001, 1865; BGH, Judgment of 07. April 2000 - V ZR 39/99 – quoted from juris; BGH, Judgment of 15. More 1997 - III ZR 46/96 – quoted from juris; BGH, Judgment of 08. July 1988 - V ZR 45/87 – quoted from juris).
158

bb)
159

Since the destruction of the harvest yield through the contamination of the plants, which leads to the unmarketability, justifies the unreasonableness of the impairment, comes the stratification of a reasonable, The part that is not to be compensated is not considered in this case.
160

In this respect, the defendant does not benefit from any further considerations of equity. Whether alternative pesticides were available to him, kann dahinstehen. It can also stand there, whether application of the herbicide would have been possible given the weather conditions, after the plaintiff had harvested his field. Because according to the convincing findings of the expert, it is clear, that already the choice of a lower application pressure of 1,0 bar to a drift reduction of 90 % would have led. That with the choice of this print an application would not have been possible or would have been significantly more difficult, is - as already stated - neither demonstrated nor otherwise recognizable. There was also the possibility, choose another nozzle with higher drift reduction.
161

cc)
162

On the basis of the persuasive statements made by expert P in his report dated 04.06.2014 the Senate assumes a loss of earnings in the amount of 35.257,95 € off.
163

(1)
164

The expert P got his own picture of the number of items on site and checked the location. He is doing so on the basis of the acreage of 2 ha and considering total 125.000 plants assumed, that 50 % of the plants were harvested, and has a loss of 62.500 plants calculated. Taking into account the corresponding losses or. exploitation of 20 %, therefore 12.500 Plant, is he of a marketable number of 50.000 plants out. Considering a sale proceeds of 0,637 €/unit, this results in a net damage amount of 31.850,00 € and taking into account 10,7 % Value added tax a gross amount of damage in the amount of 35.257,95 €.
165

The defendant's objection, In view of the location of the affected property at the edge of a field, an excessive harvest yield was assumed, since each strip of 6 m had not been managed at all, the defendants expressly dropped in the oral hearing before the Senate. Moreover, the expert P does not have the earnings value according to an area size, but determined according to actually determined quantities.
166

(2)
167

The expert P also found damage in the form of a loss of benefit.
168

(A)
169

The plaintiff intended, In 2014 to grow winter spelled, which was not possible for him due to the burden found and according to the findings of the expert P to a yield of 4.500 kg/hectare would have resulted. At the approach of 700,00 €/t/ha would have been a yield of 3.150,00 € per ha. Since present 2 ha are affected, is therefore a yield of 6.300,00 € to accept.
170

(B)
171

The expert P then did indeed explain, that with the cultivation of summer spelled a yield of 2.500 kg/hectare would have been expected, so that at the approach of 700,00 €/t/ha a yield of 1.750,00 € per ha and thus a total yield of 3.500,00 € at 2 ha yield, so there is a difference of 2.800,00 € net (6.300,00 € abzgl. 3.500,00 €), therefore 3.099,60 € gross would have resulted.
172

However, the plaintiff correctly refers to this, that no certified summer spelled was available. It is true that the defendants have this presentation by the plaintiff, that summer spelled was not available according to the descriptive variety list of the Federal Office for Plant Varieties, denied. In the descriptive variety list “Cereal, Most, Beer- and fiber plants, legumes, beets, catch crops” for 2014 However, no spring spelled is listed by the Federal Plant Variety Office, so that's for sure, that no certified summer spelled was available.
173

(aa)
174

According to § 56 SaatG in the version dated 16.07.2004 (Seed Trading Act) approved and other important varieties are described with regard to their properties that are important for cultivation and use (vgl. BVerwG, Decision of 20. More 1998 – 3 B 62/98 – quoted from juris). The approval of varieties is a prerequisite for the commercial sale of seeds of agricultural plant species and vegetable species. Trading in seed is prohibited without a variety approval, just not the cultivation. In this respect, the plaintiff points out correctly, that he could not have obtained any corresponding seed commercially.
175

(bb)
176

Only the broad bean was available to the plaintiff.
177

a)
178

The broad bean was in the seed production database in 2014 aufgelistet.
179

b)
180

That the plaintiff had other seeds available as an alternative, is neither otherwise recognizable nor demonstrated by the defendant, who is obliged to explain in this respect. In this respect, the defendants should not have limited themselves to a simple dispute, but would have had to make a qualified presentation. Because the summer spelled was not available to the plaintiff, concerns the issue of the duty to mitigate damages.
181

Insofar as the relevant circumstances lie within the sphere of the injured party, the latter has to participate in the clarification of the facts within the scope of what is reasonable (vgl. BGH, Judgment of 29. September 1998 – VI ZR 296/97 – quoted from juris). This puts the plaintiff under a subjective burden of proof. In the event of a possible violation of the obligation to mitigate damage, he must explain this, what measures he has taken to mitigate the damage. However, he did; he has demonstrated, that no summer spelled, but only the broad bean was available. Accordingly, it would have been up to the defendants, to give another lecture on alternative and high-yielding seeds.
182

c)
183

The Senate therefore estimates the damage according to § 287 ZPO on the basis of the findings of the expert P and the information provided by the plaintiff 4.981,50 €.
184

The starting point is the yield value of the winter spelled determined by the expert P in the amount of 6.300,00 €. The yield value of the field bean is to be deducted from 2.250,00 € / ha net, therefore at 2,0 ha 4.500,00 € net. Plus VAT 10,7 % (481,50 €) This results in a total of 4.981,50 € ugly.
185

(3)
186

The claimed flat-rate fee of 25,00 The Senate considers that, unlike the flat-rate fee commonly claimed in traffic accident matters, 25.00 € (vgl. OLG Koblenz, Judgment of 16. November 2020 – 12 You 207/19 – quoted from juris) - without further substantiated presentation for not replaceable.
187

This results in a total recoverable amount of 40.239,45 €.
188

g)
189

A claim-reducing contributory negligence of the plaintiff is not to be assumed. It is true that not only in the case of a fault-based claim from §§ 823 Abs. 1, § 831 Abs. 1 BGB, but also in the case of a no-fault claim under § 906 Abs. 2 Sentence 2 BGB the regulation of § 254 Abs. 1 BGB applicable, and not only in the case of contributory negligence, but also in the case of mere contributory causation (vgl. BGH, Judgment of 18. September 1987 - V ZR 219/85 – NJW-RR 1988, 136; OLG Dusseldorf, Judgment of 28. July 1995 – 11 You 24/94 – NJW-RR 1995, 1482; Vieweg/Regenfus, In: Herberger/Martinek/Rüßmann/Weth/Würdinger cited according to jurisPK-BGB, 9. Ed, § 906 BGB (Stand: 01.07.2020) RN. 158; Ebert, In: Erman, BGB, 16. Divide. 2020, § 254 BGB Rn. 9). However, there is no room for assuming any contributory negligence on the part of the plaintiff.
190

aa)
191

That the damage that had occurred could in any case have been reduced by purchasing replacement goods, is neither claimed nor otherwise recognizable.
192

bb)
193

Moreover, no contributory negligence on the part of the plaintiff can be assumed for this reason alone, because he cultivated his field in the form of organic farming. Because the plaintiff is free to decide – within the framework of legal regulations – just like the defendant, whether and how he should own his piece of land, here in the form of organic farming, farmed. It cannot be demanded of him, to take special precautions to prevent the illegal supply of harmful substances from the neighboring property and to withdraw a not inconsiderable part of his property from the appropriate use (vgl. OLG Celle, Judgment of 21. September 1979 – 8 You 193/75 – VersR 1981, 66). This must apply all the more in the present case, as the plaintiff even a border strip of 6 meters wide on his arable part and was still affected by the damaging effect.
194

In the case of the no-fault compensation claim under neighbor law, the causal contributions must be weighed against each other in a special way (vgl. BGH, Judgment of 18. September 1987 - V ZR 219/85 – NJW-RR 1988, 136). In the present case, however, the defendant is entitled 1) – as already stated – a clear violation of good professional practice, while the plaintiff through the 6 meter wide spacer strip has taken adequate measures. On the part of the defendant too 1) no knowledge beyond the usual level in agriculture was required, to recognize, that drifting herbicides can damage neighboring crops (vgl. OLG Dusseldorf, Judgment of 28. July 1995 – 11 You 24/94 – NJW-RR 1995, 1482; LG World, Judgment of 11. January 2013 – 7 The 88/12 – quoted from juris).
195

2.
196

Whether there is also a fault-based claim for damages by the plaintiff against the defendant 1) out § 823 Abs. 1 BGB due to the violation of organizational obligations or from § 823 Abs. 2 BGB i.V.m. § 6 PflSchG exists, kann dahinstehen, since no further claim would result from this. In this respect, it can also stand there, whether the defendant to 1) Thereby, that he's already in the middle of Malibu 2012 purchased and did not deploy until the following year, innocently unaware of the as of March 2013 applicable increased requirements, because there was no corresponding information in the corresponding package insert.
197

3.
198

The plaintiff is entitled to payment of interest in the amount of 5 Percentage points above the respective base interest rate from €24,000.00 since 07.12.2013 according to §§ 280 Abs. 2, 286 Abs. 1, 288 Abs. 1 BGB to. The plaintiff challenged the defendant 1) with a legal letter dated 22.11.2013 setting a deadline without success for the payment of an advance payment in the amount of 24.000,00 € until 06.12.2013 on (Annex K4), so that the defendant in accordance with § 187 Abs. 1 BGB from the 07.12.2013 with the payment of 24.000,00 € was in arrears.
199

Regarding the difference of 16.239,45 € (40.239,45 € less 24.000,00 €) the plaintiff is entitled to payment of interest in the amount of 5 Percentage points above the respective base interest rate according to §§ 291, 288 Abs. 1 BGB according to § 187 Abs. 1 BGB from the 17.12.2014 to, since the service of the statement of claim to the defendant 1) at the 16.12.2014 carried.
200

4.
201

The plaintiff is entitled to payment of legal fees in the amount claimed 1.590,91 € according to § 906 Abs. 2 Sentence 2 BGB analogous to.
202

The attorney's fees arose as a result of the legal dispute caused by the impact and are part of the recoverable consequential costs of the impact (vgl. BGH, Judgment of 01. February 2008 - V ZR 47/07 - NJW 2008, 992; OLG Zweibrücken, Decision of 26. June 2018 – 5 You 85/17 – quoted from juris). Aligned with the value of the item to be measured on the basis of the justified main claim 40.239,45 €, there is a procedural fee of 1.557,40 € net. Plus the flat rate for expenses of 20,00 € and sales tax in the amount of 299,71 In any case, the amount claimed by way of legal action results.
203

5.
204

The plaintiff is entitled to payment of interest in the amount of 5 Percentage points above the base rate from 1.590,91 € according to § 291, 288 Abs. 1 BGB according to § 187 Abs. 1 BGB from the 17.12.2014 to, since the service of the statement of claim to the defendant 1) at the 16.12.2014 carried.
205

6.
206

The plaintiff, on the other hand, has a right against the defendant 2) no claim to.
207

A)
208

The plaintiff stands against the defendant 2) no claim of 21.541,98 € according to § 906 Abs. 2 Sentence 2 BGB analogous to.
209

According to the result of the taking of evidence that has been carried out, there is no 286 ZPO required security, that a significant impairment by the defendant 2) cultivated field D-Straße had an effect on plaintiff E's field.
210

aa)
211

For the conviction of the Senate in the context of § 286 ZPO is not an absolute, certainty beyond any doubt required. It is sufficient, when the court has obtained personal certainty, which silences doubts, without excluding them (vgl. BGH, Judgment of 08. July 2008 – VI ZR 259/06 – quoted from juris; OLG Hamm, Judgment of 08. February 2018 – I-21 U 95/15 – quoted from juris). The Senate could not obtain such certainty on the basis of the essence of the oral hearing.
212

(1)
213

From the test report of the LUFA NRW dated 29.10.2013 (Provedum 28.10.2013, Exhibit K 1) there is no sufficiently reliable factual basis, that an impact from the defendant's field 2) has taken place on the plaintiff's field. Because the samples have not been assigned to a specific area, so that no reliably identifiable effect can be derived from this.
214

(2)
215

Also, given the location of the fields, there cannot be a reasonable degree of certainty about the defendant's property 2) outgoing influence can be assumed.
216

(A)
217

The expert P has stated in summary, that the corresponding damage to the plants was based on the drift of the Malibu agent (S. 18 of the report from 04.06.2014). Based on the location of the property and the wind direction, which the expert P based on and transmitted to him 1,0 m above ground downscaled wind speeds (S. 14-17 of the report from 04.06.2014) for the 24.10.2013 determined, can a wind speed of 1,4 m/sec. in the time of 7:00 o'clock until 18:20 Uhr (S. 18 of the report) or. to 18:00 Uhr (S. 17 of the report) and - to a limited extent - also ruled for the time afterwards. However, the drift could have started from the north-western area and hit the plaintiff's area (S. 18 of the report from 04.06.2014). In this respect, the expert P assumed drift in view of the prevailing wind speeds and the soil samples. Meanwhile, the expert P in his regional court hearing (Bl. 137-R f. d.A.) ausgeführt, that he could not rule out thermals as the cause of the contamination and in his supplementary statement of 01.02.2016 (Bl. 145 d.A.) festgestellt, that due to a weather review for October 2013 partly spring-like weather prevailed, so given the prevailing high temperatures in October 2013 Thermals were the most likely cause of damage, which he clearly put into perspective in his hearing before the Senate, but nevertheless not ruled it out as a cause.
218

(B)
219

The expert T even meant, that the residue value of 0,015 mg/kg is well below the residue potential, which could have arisen if the rules were applied correctly (S. 24 of the report from 21.09.2018).
220

The expert U has a direct spraying by the defendant 2) ausgeschlossen, there then, if the defendant to 2) would have driven the sprayer across the plaintiff's field, this would have been detectable in the soil samples, which just wasn't the case.
222

In addition, the expert U has determined, that no reliable statement is possible, whether the active ingredient has drifted during the application of the defendant 2) or by thermal volatilization or. Shift from the defendant's field to 2) or also from the radius of up to 1.000 m came to the plaintiff's field. Based on the plant sample taken by expert P (S 64 P, It, western edge) and the determined value of 0,015 mg/kg is the expert U based on the half-life of 90 days assumed, that the concentration had decreased by about half by the time of the test, so that experience has shown that the original value of the contamination 0,030 mg/kg have been lying, experience has shown that such a concentration tends to indicate direct drift (S. 46/47 of the report from 31.12.2020). Also noteworthy, that the defendant's field too 2) right next to the plaintiff's field, what indicates, that a drift from the defendant's field 2) could be possible on the plaintiff's field.
223

However, the expert U explained when he was questioned before the Senate, that he could not make a definite statement in this regard, also 0,030 mg/kg is a value, which "could" indicate a drift, on the other hand, however, there is a certain difficulty with a direct drift away from the defendant's property 2) determine, since the calculated value of 0,030 mg/kg is located in the lower range and can also be explained by long-distance transport. In addition, the expert U in his hearing before the Senate on the basis of Annex BER K8 (Bl. 533 d.A.) and the plant BER K9 (Bl. 534-535 d.A.) ausgeführt, that due to the circumstance, that only one measurement is available, no statement can be made, where the active substance comes from. In this respect it is also conceivable, that the active substance from the more distant field "conv. 11“ could come from, especially if the nozzles used there had caused such small drops, the more than those in the diagram (overview 1, S. 16 of the report) specified 125 m would have traveled and would have reached the plaintiff's field.
224

(3)
225

Also a prima facie evidence in favor of the plaintiff to that effect, that the active ingredient pendimethalin from the defendant's property 2) would have acted on his field, is not considered.
226

The prima facie evidence is used, if there is a "typical" course of events in the individual case, which, based on life experience, has a very high probability of pointing to a specific cause or consequence and appears to be so common and usual, that the special individual circumstances become less important (vgl. BGH, Judgment of 11. December 2018 - KZR 26/17 – quoted from juris). According to this, facts that are already established in connection with such an empirical sentence allow the conclusion to be drawn about the fact that is actually to be proven, for example, to a specific cause for an event or to the occurrence of a specific success (vgl. BGH, Judgment of 11. December 2018 - KZR 26/17 – quoted from juris). In such circumstances, establishing the facts is sufficient for the purposes of proof, to which the sentence of experience is linked (vgl. BGH, Judgment of 11. December 2018 - KZR 26/17 – quoted from juris). Then it's up to the opponent, Explain the circumstances and, if necessary, prove them, which exceptionally allow a different course of events to appear as seriously possible (vgl. BGH, Judgment of 11. December 2018 - KZR 26/17 – quoted from juris). The prima facie evidence differs from statements according to general rules of evidence precisely in this way, that the specific course of events does not need to be ascertained, because of a typical, uniform course of events confirmed by life experience can be assumed, as long as the event is unrelated, that make it seem seriously possible, that an atypical course of events existed (vgl. BGH, Judgment of 11. December 2018 - KZR 26/17 – quoted from juris).
227

(A)
228

Alone the close temporal connection between the application on the defendant's field 2) is not enough, to accept prima facie evidence based thereon. There is no standardized course of events, according to which herbicide contamination in one field is usually – i.e. typified – caused by application in the neighboring field.
229

(B)
230

There is also no prima facie evidence of the defendant's violation in favor of the plaintiff 2) accepted against the principles of good professional practice.
231

(aa)
232

Admittedly, it is certain on the basis of the evidence that has been taken, that the defendant to 2) violated the principles of good professional practice.
233

Although the injection pressure in the information from 06.11.2013 (Appendix K7) is not noted, the expert U based on the defendant 2) actually related nozzle size (Agrotop Air-Mix 110-03) festgestellt, that the nozzle size is in the much finer range and at pressures of approx. 3,6 bar already finer drops of about 250-350 μm would be achieved, so they start from a pressure of 2,0 bar would no longer be classified as drift-reducing (S. 19 of the report from 31.12.2020). size nozzles 03 are therefore not suitable for use in herbicide application with plant protection products containing pendimethalin in cereals due to their properties. Even the manufacturer recommends nozzles of the size 04 as a minimum standard (S. 19 of the report from a 30.12.2020).
234

But the expert did a convincing job with that, that a potential risk of drift had already been triggered due to the type of nozzle used and the defendant 2) already because of the actual choice of nozzle did not correspond to good professional practice in crop protection. The defendant to 2) would either have a different nozzle -04 use, use a mobile anemometer or agree on the application with the plaintiff (S. 39 of the report from 31.12.2020), what the defendant to 2) undeniably did not. In addition, the defendant has 2) with its missing information on the amount actually used and on the target culture, the specifications of Art. 67 I go 1107/2009 not considered (S. 40 of the report from 31.12.2020).
235

(bb)
236

Accepting prima facie evidence in favor of the plaintiff to that effect, that the active ingredient pendimethalin from the defendant's property 2) would have acted on his field, but only then would it be considered, if, in addition to the established violation of good professional practice, participation of a third party in the contamination would be excluded (vgl. OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris). However, as stated, such involvement cannot be ruled out on the basis of the expert's findings, since an action from the field "conv. 11According to the expert's findings, it was possible. That this field "conv. 11’ Farmer Mr Y would not have used pendimethalin, the plaintiff does not claim either. The plaintiff presented his case before the Senate during his personal hearing, that after consultation with the farmers' association, Mr Y did not want to provide any information. However, based on the plaintiff's own submissions, this cannot be ruled out, that on the field "conv. 11“ Pendimethalin has been used. There is no basis for presumptive evidence, because a pendimethalin exposure of the concentration determined here is typically not only from the directly neighboring field, but in any case can also come from fields in the vicinity.
237

(4)
238

However, this does not guarantee the necessary security, that a significant impairment by the defendant 2) cultivated field D-Straße had an effect on plaintiff E's field.
239

In that respect it doesn't matter, whether the plaintiff had already harvested his area when the application took place and to what extent cauliflowers and savoy cabbage still on the plaintiff's field could have been contaminated at all.
240

B)
241

The plaintiff stands against the defendant 2) also no claim in the amount of 21.541,98 € in direct application of § 906 Abs. 2 Sentence 2 BGB to.
242

§ 906 Abs. 2 Sentence 2 BGB grants in its immediate area of application in the case of a significant impairment to be tolerated in accordance with § 906 Abs. 2 Sentence 1 BGB a no-fault compensation claim, if the impairment appears unreasonable for the customary use of the plaintiff's property (vgl. Fritzsche, In: BeckOK BGB, Hau/Poseck, Stand: 01.08.2021, § 906 BGB Rn. 87). However, according to § 286 ZPO required security, that the active ingredient pendimethalin from the defendant's property 2) affected the plaintiff's property, so that it can be expressly left out, whether the contamination by plant protection products is reasonable for the plaintiff within the meaning of § 906 Abs. 1 Sentence 2 BGB would be.
243

C)
244

The plaintiff stands against the defendant 2) also no claim in the amount of 21.541,98 € according to §§ 823 Abs. 1 BGB or. 823 Abs. 2 BGB i.V.m. 6 PflSchG.
245

It is undisputed that there is a violation of property within the meaning of § 823 Abs. 1 BGB before, because in any case the cauliflower and savoy cabbage that have not yet been harvested from the plaintiff's field have not been impaired in their material substance, however, exposure to pendimethalin has an effect on its use- and has suffered salability, which in any case usually constitutes an infringement of property (vgl. BGH, Judgment of 21. November 1989 – VI ZR 350/88 - NJW 1990, 908; BGH, Judgment of 25. October 1988 – VI ZR 344/87 - NJW 1989, 707; OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris; OLG Rostock, Judgment of 20. July 2006 – 7 You 117/04 - NJW 2006, 3650).
246

However, as already stated, it is not certain with the necessary certainty, that the property infringement is due to an action by the defendant 2) is due, so that the causality that gives rise to liability between the spraying process and the infringement of property cannot be determined with sufficient certainty.
247

7.
248

In the absence of a main claim, the plaintiff is entitled to claim interest on the main claim, the asserted claim for payment of pre-trial legal fees plus interest and the asserted claim for payment of 6.663,80 € plus interest against the defendant 2) nicht zu.
249

8.
250

On the other hand, the plaintiff is entitled to payment of 10.071,18 € according to § 906 Abs. 2 Sentence 2 BGB analogously against the defendant 3) to.
251

Based on the evidence that has been taken, it is clear, that from the defendant's property 3) H an effect on the neighboring property of the plaintiff G has gone out, this influence due to violation of the defendant 3) against good professional practice was unlawful and therefore did not need to be tolerated, the plaintiff was prevented, to prevent this influence, and he suffered disadvantages as a result, which exceeded the reasonable extent of an impairment to be accepted without compensation.
252

A)
253

Since it is neither presented nor otherwise apparent, that the plaintiff knew of the impending application of the Malibu agent or how he could have prevented the impact on his field, the plaintiff could not avert the damaging effect of herbicide drift by claiming primary legal protection, so that the basis of claim according to § 906 Abs. 2 Sentence 2 BGB is not subsidiary.
254

B)
255

The plaintiff cultivated the area G, so that he is authorized to act as a user.
256

The defendant to 3) is passively legitimate. According to the result of the evidence that has been taken, it is clear, that as a result of drift on the part of the defendant on 18.10.2013 the active ingredient pendimethalin got onto the plaintiff's field in addition to the Arelohn herbicide Malibu, which was applied there, and there reached the maximum permissible value of 0,01 mg/kg exposure to the active substance pendimethalin.
257

aa)
258

Undisputedly, the defendant 3) at the 18.10.2013 also the herbicide Malibu, which undisputedly contains the active ingredient pendimethalin, applied to his field H. On the plaintiff G's field - also undisputedly - there was an effect of the drug pendimethalin, which is also evident from the test report dated 04.11.2013 (Appendix K12), according to which a pendimethalin content of 0,019 mg/kg resulted, can be deduced freely.
259

bb)
260

Based on the evidence that has been taken, it is clear, that of the defendant's property too 3) H as a result of application of the herbicide Malibu am 18.10.2013 by direct drift of the active ingredient pendimethalin onto the property of plaintiff G (Beat 20a) reached, acted on this and the maximum permissible value of 0,01 mg/kg exceeding load.
261

The expert U has stated convincingly, that with a probability bordering on certainty direct drifting of the active substance during application by the defendant, which is contrary to good professional practice 3) was based on the culture of the plaintiff; an additional, rather minor contamination by thermal volatilization or displacement of particles from the defendant's field 3) but also a thermal volatilization or displacement from the radius of up to 1.000 m or long-distance transport cannot be ruled out, but is of a subordinate nature. Moreover, according to the findings of the expert already presented, it is certain, that the plaintiff's own application of the active ingredient pendimethalin is also ruled out, like a source contamination of the seedlings.
262

The Senate also agrees with these convincing statements of the expert, which he in the Senate appointment on 28.10.2021 presented in depth.
263

(B)
264

With regard to field G, the expert P has values spaced by 5 m to the edge of the field in the amount of 0,345 mg/kg and at intervals of 15 m to the edge of the field in the amount of 0,148 mg/kg determined. Based on these plant samples, it is clear, that through the application of the active substance on the defendant's field 3) Pendimethalin landed on the plaintiff's field by direct drift. Expert U also made a statement regarding the samples taken on field G, that they constitute a sufficient factual basis, in order to be able to carry out an appropriate assessment, and with a probability bordering on certainty the contamination of the plaintiff's field towards a direct drift from the defendant's field 3) is due. Der Umstand, that the concentration decreased with increasing distance from the edge of the field, according to the findings of the expert, clearly speaks for a direct drift, especially since the defendant's values 3) in relation to the values in terms of complaining to 1) were still significantly increased and the value of 0,345 mg/kg is extremely high.
265

According to the expert's findings, there is a lack of sufficient evidence for an - alternative - evaporation and a long-distance transport associated with it. The application took place on 18.10.2013. as already stated, is assumed, that pendimethalin only decreases at temperatures 20 °C demonstrably tends to volatilize. According to the temperature data from the weather station W, which the expert U considers to be reliable, prevailed on 22.10.2013 only during 7 hours temperatures from 21,0 °C and am 26.10.2013 while 3 hours temperatures from 20,0 °C, so that only on those days could there have been a potential risk of indirect drift by thermal volatilization. The formation of concentrations of 0,345 mg/kg bzw. 0,148 mg/kg is, however, according to the expert's findings, even more practically impossible due to evaporation and transport within this low time intensity. Insofar as there is also a temperature-related evaporation with regard to property G in the period from 03. to 07.09.2013 could come into consideration, the expert stated convincingly, that at least 140 days, which are to be used as a basis for recalculating the amount of active substance. So if the active substance from another field in the period from 03.-07.09.2013 would have reached the plaintiff's field, should have been extremely high values, which a long-distance transport cannot explain, as this only involves concentrations in the range of nanograms per cubic meter of air. However, this also means long-distance transport with regard to field G for the period from 03. to 07.09.2013 rule out.
266

Based on the evidence that has been taken, it is also clear, that the active ingredient pendimethalin did not reach plaintiff G's field from other surrounding fields.
268

The expert U has with reference to the attachments BER K10 (Bl. 536 d.A.) and BER K11 (Bl. 537 d.A.) convincingly executed, that due to the measured high values – in 5 m distance 0,345 mg/kg and in 15 m distance 0,148 mg/kg - the active substance pendimethalin not from the field "conv. 6" could come. The field "conv. 6' is at a distance of over 200 m and in the case of an evaporation, the corresponding course of the curve with a possible aerosol cloud is considerable. Significantly higher concentrations should therefore have been found in the immediate vicinity, which would then have decreased and resulted in similar standard values. Therefore, it can be determined with a probability bordering on certainty, that the corresponding burden from the defendant's field too 3) "conv. 1" has come.
269

As far as the field "conv. 5“ is affected, According to the expert's findings, field G could have been hit on the edge, but something to the east should have been detectable, which, however, is not the case.
270

C)
271

The defendant's field too 3) consequential impairment is also essential. As already with regard to the defendant 1) ausgeführt, the materiality of the impairment is already evident from this, that for individual plants the orientation value for the assessment as organic goods, there are no indications that it was determined improperly, was clearly exceeded and the plants cultivated were therefore no longer marketable overall.
272

D)
273

Furthermore, the plaintiff was not subject to any obligation to tolerate.
274

aa)
275

As already explained, the plaintiff is not obliged to tolerate this because of this, because the application of herbicides would be local practice. Also to the defendant 3) it was up to him at the time of application of the remedy – despite the fact that the use of the drug pendimethalin was customary in the area, which was established by the expert P and unchallenged by the defendant – take measures to prevent disruption, which were technically possible and economically reasonable for him (vgl. BGH, Judgment of 18. September 1984 – VI ZR 223/82 - NJW 1985, 47).
276

bb)
277

Based on the evidence that has been taken, however, it is certain, that the defendant has not taken sufficient, technically possible and economically reasonable measures to prevent the drift. The expert U has stated convincingly, that the defendant to 3) violated good professional practice by choosing the nozzle to be used.
278

The expert U has indeed determined, that the injection pressure was not noted, so that an assessment of the actual situation cannot be proven. Based on the nozzle size actually used (Agrotop Air-Mix 110-03) but the expert stated convincingly, that this nozzle size is in the much finer range and at pressures of approx. 3,6 bar already finer drops of about 250-350 μm would be achieved, so they start from a pressure of 2,0 bar would no longer be classified as drift-reducing (S. 19 of the report from 31.12.2020). size nozzles 03 are therefore not suitable for use in herbicide application with plant protection products containing pendimethalin in grain due to their properties and even the manufacturer recommends nozzles of this size 04 as a minimum standard (S. 20 of the report from a 30.12.2020).
279

Due to the type of nozzle used, a potential risk of drift was triggered and the concentrations of 0,354 mg/kg in 5 m distance and 0,148 mg/kg in 15 m distance in the plant sample was almost certainly caused by drift during application. The decrease in concentration in this dimension over a relatively short distance is typical for direct drift during application (S. 20 of the report from 31.12.2020). By using also one a year 2012 already available 90 % drift-reducing nozzle technology, contamination could be avoided, in any case, it was reducible (S. 20 of the report). therefore have (also) The defendant to 3) with the actual choice of nozzle did not correspond to good professional practice in crop protection and he would either have a different nozzle -04 use, use a mobile anemometer or agree on the application with the plaintiff (S. 39 of the report from 31.12.2020).
280

As far as the expert T - contrary to this finding - has determined, that the spraying processes carried out by the defendants corresponded to good professional practice in plant protection at the time of application, is also significant here, that the expert T is generally concerned with the application of active substances, but not closer to that of the defendant 3) used spray nozzle and has not made any further considerations to avoid or reduce the drift. As far as the defendants also think in this respect, that improper spraying cannot be detected with the necessary certainty, For that reason alone this objection does not work, because they are not sufficiently familiar with the findings of the expert U, deal with. The expert U has clearly stated, that the defendant to 3) either would have choose another nozzle, should have used a mobile anemometer or discussed the application with the plaintiff. The defendants do not dispute this and thus do not cast doubt on the findings of expert U.
281

The defendant to 3) was either to choose a more drift-reducing nozzle, obliged to use a mobile anemometer or to consult with the plaintiff. He too knew, that he applied a plant protection product containing the active ingredient pendimethalin to his field and that pendimethalin was not approved for the plaintiff's plants. The defendant to 3) was therefore held, to avoid a drift – as it is technically possible and economically reasonable. Against the background, that at the time of application the plants were visually perceptible, so that from the defendant's point of view too 3) these vegetable crops in the immediate vicinity posed a major risk when choosing pesticides, would the defendant 3) according to the findings of the expert, was obliged to take these measures. The defendant is entitled to all measures deemed necessary by the expert 3) however, undeniably not taken.
282

That the defendant 3) selecting a different nozzle would not have been possible or would have been uneconomical, is neither shown nor otherwise recognizable. The defendant to 3) did not present either, that it was essential for his harvest given the prevailing wind conditions, apply the crop protection product in this way and no other wind- or. wait for weather conditions (vgl. OLG Dusseldorf, Judgment of 13. August 2020 – 5 You 343/19 – quoted from juris). In this respect it is significant, that the defendants had submitted, that into November – on condition, that there was no frost for two weeks - could have been sprayed.
283

It)
284

The scope of the compensation claim is also determined here according to the principles, which apply to the assessment of the compensation for expropriation, and amounts to 10.071,18 €.
285

aa)
286

Since the destruction of the harvest yield through the contamination of the plants, which leads to the unmarketability, justifies the unreasonableness of the impairment, here too comes the stratification of a reasonable, part not to be compensated is not considered. To the defendant 3) also no considerations of equity benefit. Whether alternative pesticides were available to him, can stand there as well as the question, whether application of the herbicide would have been possible given the weather conditions, after the plaintiff had harvested his field. Because according to the convincing findings of the expert, it is clear, that the choice of a different nozzle leads to a drift reduction of 90 % and thus would have prevented the impermissible contamination.
287

bb)
288

On the basis of the statements made by the expert P in his report dated 04.06.2014 the Senate assumes a loss of earnings in the amount of 8.937,89 € off. The expert P is from an acreage of 0,65 ha assumed and has taken into account total 40.625 plants accepted, that 60 % of the plants, Also 24.375 piece, were harvested, and has a loss of 16.250 plants calculated. Taking into account the corresponding losses or. exploitation of 20 %, therefore 3.250 Plant, is he of a marketable number of 12.675 plants out. Considering a sale proceeds of 0,637 €/unit, this results in a net damage amount of 8.073,98 € and taking into account 10,7 % Value added tax a gross amount of damage in the amount of 8.937,89 €.
289

cc)
290

The expert P also found damage in the form of a loss of benefit.
291

(A)
292

The plaintiff intended, In 2014 to grow winter spelled, which was not possible for him due to the burden found and according to the findings of the expert P to a yield of 4.500 kg/ha would have resulted. At the approach of 700,00 €/t/ha would have been a yield of 3.150,00 € per ha. Since in this case an area of 0,65 ha are affected, is therefore a yield of 2.047,50 € to accept.
293

(B)
294

The expert P then did indeed explain, that with the cultivation of summer spelled a yield of 2500 kg/hectare would have been expected, so that at the approach of 700,00 €/t/ha a yield of 1.750,00 € per ha and thus a total yield of 1.137,50 € at 0,65 ha, so there is a difference of 910,00 € net (2.047,50 € abzgl. 1.137,50 €), therefore 1.007,37 € gross. But as already stated, no certified spring spelled was available to the plaintiff. That the plaintiff had alternative seeds other than the field bean he had specified, is neither otherwise recognizable nor demonstrated by the defendant, who is obliged to explain in this respect. The Senate therefore estimates the damage according to § 287 ZPO on the basis of the findings of the expert P and the information provided by the plaintiff 1.133,29 € ugly. The starting point is the yield value of the winter spelled determined by the expert P in the amount of 2.047,50 €. The yield value of the field bean is to be deducted from 2.250,00 € / ha net, therefore at 0,65 ha 1.023,75 € net. Plus VAT 10,7 % (109,54 €) This results in a total of 1.133,29 € ugly.
295

dd)
296

The claimed flat-rate fee of 25,00 The Senate does not consider this to be replaceable without further substantiated presentation. This results in a recoverable total amount of damages of 10.071,18 €.
297

F)
298

A claim-reducing contributory negligence of the plaintiff is due to the defendant 1) stated reasons, referenced to avoid repetition, not accept.
299

9.
300

Whether there is also a fault-based claim for damages by the plaintiff against the defendant 3) out § 823 Abs. 1 BGB due to the violation of organizational obligations or from § 823 Abs. 2 BGB i.V.m. § 6 PflSchG exists, kann dahinstehen, since no further claim would arise in this respect either.
301

11.
302

The plaintiff is entitled to payment of interest in the amount of 5 Percentage points above the base rate from 10.071,18 € according to §§ 291, 288 Abs. 1 BGB according to § 187 Abs. 1 BGB from the 17.12.2014 to, since the service of the statement of claim to the defendant 3) at the 16.12.2014 carried. That the plaintiff to the defendant 3) as do the defendants 1) and 2) each with a legal letter dated 22.11.2013 (Attachments K4, K8) had previously unsuccessfully requested payment by setting a deadline, is not recognizable.
303

12.
304

The plaintiff is entitled to payment of legal fees in the amount claimed 887,03 € according to § 906 Abs. 2 Sentence 2 BGB analogous to. Aligned with the value of the item to be measured on the basis of the justified main claim 10.071,18 € results in a procedural fee of 865,80 € net. Plus the flat rate for expenses of 20,00 € and sales tax in the amount of 168,30 In any case, the amount claimed by way of legal action results.
305

The plaintiff is also entitled to payment of interest in the amount of 5 Percentage points above the base rate from 887,03 € since 07.12.2013 according to §§ 291, 288 Abs. 1 BGB according to § 187 Abs. 1 BGB from the 17.12.2014 to, since the service of the statement of claim to the defendant 3) at the 16.12.2014 carried.
306

13.
307

The plaintiff also has a claim against the defendant 1) and 3) on payment of analysis costs in the amount of respectively 1.120,62 € plus interest above the respective base interest rate in the amount of 5 percentage points since 17.12.2014 to.
308

A)
309

as already stated, are entitled to the plaintiff against the defendants 1) and 3) claims analogous to § 906 Abs. 2 Sentence 2 BGB to. The analysis costs incurred are among the recoverable follow-up costs of the impact (vgl. OLG Cologne, Urt. from 15. March 2021 – 5 You 100/20 – ZfBR 2021, 552; Fritzsche, In: BeckOK BGB, Hau/Poseck, Stand: 01.08.2021, § 906 BGB Rn. 89).
310

B)
311

However, the analysis costs claimed cannot be fully reimbursed.
312

aa)
313

According to the invoice from IMO GmbH dated 14.02.2014 (Exhibit K 10) the plaintiff paid more to clarify a finding of terbutylazine and DDT in soil samples 60,69 € ugly. dass die Beklagten zu 1) and 3) would be responsible in any way for the application of terbutylazine and DDT, however, is not discernible, so that in this respect it cannot be a matter of reimbursable consequential costs of exposure to pendimethalin.
314

bb)
315

The O Marktgenossenschaft presented the plaintiff with an invoice dated 30.11.2013 (Exhibit K 10) due to "losses from claims" an amount of 1.000,00 € billed. To what extent this estimated amount, which appears to be scheduled for uninsured claims, to the influence of the defendants 1) and 3) could be due, is not recognizable. The plaintiff did not make a corresponding statement in his personal hearing before the Senate, even after being informed accordingly.
316

cc)
317

Only insofar as the invoice from IMO GmbH dated 09.12.2013, Invoice no. 013/104023 (Exhibit K 10) the plaintiff for 21,75 working hours, Laborkosten, 5 Inspection hours and a travel fee to clear up the residues on celery and kale overall 3.687,81 paid € gross, it is basically a matter of compensable consequential costs of the impact. However, it is significant, that these costs also apply to the defendant's land too 2) and the defendant 4) neighboring surfaces I and K relate. Accordingly, within the framework of § 287 ZPO offered estimate considerable, that next to the land of the defendants too 1) and 3) B and H still the areas of the defendant 3) J and D-Str. of the defendant 2) and those to the defendant's field too 4) neighboring area K were affected by the analysis costs according to the plaintiff's submission, which was kept unchallenged in the oral hearing before the Senate. Since it is not recognizable, that the analysis effort for a certain area or certain areas could have been higher, the Senate considers it according to § 287 ZPO as appropriate, to consider each area in the same way when allocating costs, so that on the two faces of the defendant too 1) and 3) B and H each a proportion of 737,56 € omitted, so the defendants too 1) and 3) for payment of each 737,56 € are obliged, because the analysis costs are fundamentally part of the recoverable consequential costs of the impact according to § 906 Abs. 2 Sentence 2 BGB belong, are therefore in substance aimed at the same legal consequence (vgl. KG Berlin, Judgment of 18. October 2012 – 22 You 226/09 – quoted from juris).
318

dd)
319

The same applies mutatis mutandis to the invoice of N GmbH dated 03.02.2014 (Exhibit K 10) payment made in the amount of 1.915,30 € ugly. This results in a proportionate amount of each 383,06 €.
320

C)
321

The plaintiff is also entitled against the defendants 1) and 3) each entitled to payment of interest in the amount of 5 Percentage points above the base rate from 1.120,62 € according to §§ 291, 288 Abs. 1 BGB according to § 187 Abs. 1 BGB from the 17.12.2014 to, since the service of the statement of claim to the defendants 1) und zu 3) each on 16.12.2014 carried.
322

III.
323

The defendant's unrelenting arguments 1) to 3) in the legal brief dated 15.11.2021 gives the Senate the reopening of the oral hearing in accordance with § 156 Abs. 1 ZPO no reason. Die Voraussetzungen, under which they according to § 156 Abs. 2 ZPO must be reopened, are not available in the case of dispute. In particular, the Senate has neither its reference- and obligation to provide information nor the defendant's claim 1) to 3) violated on legal hearing (§ 156 Abs. 2 No.. 1 ZPO).
324

the thing- and the legal situation was extensively discussed at the hearing of the second instance. No factors relevant to the decision emerged, which have not previously been addressed in the judgment under appeal or in the legal briefs of the parties. As far as the defendants 1) to 3) referring to, that the publications of a new application regulation mentioned by the expert or at least the articles dealing with the problem in specialist journals in the year 2013 would not have passed at all, it doesn't matter at all, because the defendants 1) and 3) according to the regulations drawn up in accordance with the Plant Protection Act and published in the Federal Gazette No. 76and vom 21.05.2010 announced "Principles for the implementation of good professional practice in plant protection" had to make a thorough selection for the use of each plant protection product and assess and minimize the risks of an application. For § 906 Abs. 2 Sentence 2 In addition, analogous to the German Civil Code, a violation of good professional practice is not enough, but also a failure to take objectively possible and necessary safety precautions, which are objectively reasonable for the herbicide user.
325

Therefore, the defendants 1) to 3) also no longer to grant a discount on writing. From the §§ 525 Sentence 1, 138 ZPO also does not follow the obligation of the court, to announce to the parties in advance of the appointment, what decision it is likely to make on the matter (vgl. Brandenburg Higher Regional Court, Judgment of 23. August 2006 – 3 You 164/05 – quoted from juris). Are – as here – all relevant items- and legal issues discussed, both sides have to reckon with it, that the senate arrives at a different conclusion on this basis than the court of first instance.
326

IV.
327

The decision on costs follows from § 100 Abs. 1 i. V. with §§ 91 ff. ZPO analog (Baumbach’s cost formula). The decision on the provisional enforceability follows from §§ 708 No.. 10, 711 ZPO.
328

The appeal was not allowed, because the requirements of § 543 Abs. 2 Sentence 1 ZPO not available. The judgment has nothing going beyond the individual case, basic meaning. The further development of the law or the safeguarding of uniform case law does not require a decision by the Court of Appeals either.

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