T.C. SUPREME
14.law office
Main: 2014/3367
Decision: 2015/1576
Date of decision: 16.02.2015
PREVENTION OF WATER ELIMINATION-THE PARTIES ‘ NEEDS FOR WATER THE RATE AT WHICH WELLS AFFECT EACH OTHER WHETHER THE WATER WILL RETURN TO ITS PREVIOUS LEVEL IF THE DEFENDANT’S WELL IS CLOSED-INCOMPLETE EXAMINATION-DUE TO A VIOLATION OF THE PROVISION
ABSTRACT: The parties ‘ water needs should be determined first by conducting an exploration accompanied by geology, science and agriculture experts during the period when the water is at least in the court, and the extent to which the source belonging to the plaintiff is affected by the well subsequently drilled by the defendant (pumping v.b. if the plaintiff has enough water to meet the plaintiff’s needs, if there is not enough water to meet the plaintiff’s needs, a water regime should be established that will ensure that as much water as affected is supplied to the plaintiff, if it is understood that the plaintiff’s well has dried up due to the well that the defendant subsequently drilled, and if the defendant’s well is closed, it should be determined whether the water will become obsolete if the defendant’s well is closed, in case it becomes clear that it will not become obsolete, a provision conducive to execution should be established by creating a water intake device for removing water from the defendant’s source as well as the plaintiff’s unmet need.
(4721 P. K. m. 704, 718, 756, 780, 837)
Case: At the end of the hearing held by the plaintiff’s deputy with a petition filed against the defendants on 3.7.2012, the Supreme Court examined the decision of 2.7.2013 on the adoption of the case, the file and all the documents in it were examined and considered necessary after deciding on the acceptance of the appeal petition, which was understood to be between the request of the defendants ‘ deputy and the time:
Decision: The plaintiff stated that the water supply in the immovable properties numbered 224, where it is maliki, was reduced due to the drilling well opened by the defendant in the immovable property numbered 746, and asked to prevent the defendant from sifting it into the water. The defendant’s attorney defended the rejection of the case, arguing that the well owned by the defendant is licensed and does not affect the plaintiff’s well.
The court decided to partially accept the case, to reduce the pumping power of the defendant’s water drilling well located in parcel 746 from 4 liters per second to 2 liters per second and to reject the defendant’s requests for water intervention in this way, the plaintiffs ‘ requests to stay and establish a water regime.
The decision was appealed by the defendant’s attorney and the plaintiff’s attorney.
718 Of the Turkish Civil Code No. 4721. according to the article; property on land covers the air above it and the supply layers below it to the extent that it is beneficial to use it. The scope of this property also includes structures, plants and resources, subject to legal restrictions.
756 Of the Turkish Civil Code No. 4721, which is regulated in parallel with the provision of this article. according to the article; “Resources are an integral part of the land and their ownership can only be gained together with the ownership of the land where they originate. The right to resources located on someone else’s land is registered in the land registry as an easement right. Groundwater is one of the waters belonging to the public interest. Being the owner of the supply does not result in being the owner of the groundwater under it. The provisions of the special law on the form and extent of use of groundwater by land owners are reserved.”
718 Of the Turkish Civil Code. material and 756/2. the sources mentioned in the article differ from groundwater.
Source, origin of the Earth and the groundwater which will be in a special course and private ownership water continuously, and in an artificial way or DEC of the earth as well as the water resource quality wins (Gursoy/Eren/Cansel Turkish property law, Ankara, 1978, p.618). In addition, if the benefit of the water coming out of the source is abundant enough to form a public stream, the source can no longer be subject to private ownership. Again, the procedure for using water extracted from groundwater by artificial means, such as drilling, is also governed by the Groundwater Law No. 167.
In other words, if the spring water is at a flow rate that exceeds the boundaries of the land where it boils spontaneously, or if there is an excess after meeting the needs of the owner, general water is accepted and neighbors can also benefit. In addition, spring water is obtained from non-registered land (for example, pasture, forest, etc.) if it comes out, it is general water, regardless of the flow rate of the water. On the other hand, everyone can benefit from this water at the rate they need, without violating the ancient and priority right.
On the other hand, private water is water that comes out of the registered real estate and is sufficient only to meet the personal needs of that real estate and its owner.
In other words, the owner has the right to save the spring water, which is subject to the ownership of the land, on private water, as he wishes. He can use this water himself, as well as grant an easement to someone else in terms of using the water from his source. In addition, there is the authority to file lawsuits for the elimination of the elimination, if any, of the source based on the right of ownership.
756/2 Of the Turkish Civil Code No. 4721. in accordance with the article “The right to resources located on someone else’s land is registered in the land registry as an easement right.” in accordance with the provision, the right of resource can only be established with the consent of the landowner with the official promissory note to be issued in the title deed.
Similarly, 837 of the Turkish Civil Code No. 4721. the article also states that ” The easement right on a resource located on someone else’s land obliges the owner of this land to endure the receipt and discharge of water. This right may be transferred to someone else and passed on to the heir, unless otherwise agreed. If the resource right is of an independent nature and has been established for at least 30 years, it can be registered as immovable on the land registry.”arranged as follows.
As stated in the provision of the Article, the resource easement can be established directly depending on the person, as well as the transfer to others can be decided. When it is established as an independent and permanent right, it is also possible to register it on a separate page in the land registry. Although there is no clear provision in the law on the acquisition of the right to resources, in accordance with the provisions on the acquisition of other easements attached to the property, there are 780 of the Turkish Civil Code. it is accepted that the provisions on the acquisition of immovable property by using the Article in comparison will be applied (m.704/2). In this case, it is possible to obtain registration of the resource right in the land registry with a contract to be issued in an official way.
In fact, 756/2 and 837 of the Turkish Civil Code No. 4721. the water that may be subject to the resource easement specified in the article is private water, and groundwater that is of a general water nature is outside these regulations. As a matter of fact, general waters cannot be considered within the scope of immovable property.
As for the concrete case in the light of the principles described above, Although it was decided to partially accept the case and partially reject it, the examination and investigations conducted by the court are not sufficient to establish the provisions. It follows that the parties ‘ needs for the water subject to the case, the rate at which the wells subject to the case affect each other, and whether the water will return to its former level if the defendant’s well is closed have been decided without being determined by the expert report.
For this reason, the court should first determine the parties ‘ water needs by conducting an exploration accompanied by geology, science and agriculture experts during the period when the waters are at least, and to what extent the source belonging to the plaintiff is affected by the well subsequently drilled by the defendant (pumping v.b. if the plaintiff has enough water to meet the plaintiff’s needs, if there is not enough water to meet the plaintiff’s needs, a water regime should be established that will ensure that as much water as affected is supplied to the plaintiff, if it is understood that the plaintiff’s well has dried up due to the well that the defendant subsequently drilled, and if the defendant’s well is closed, it should be determined whether the water will become obsolete if the defendant’s well is closed, in case it becomes clear that it will not become obsolete, a provision conducive to execution should be established by creating a water intake device for removing water from the defendant’s source as well as the plaintiff’s unmet need.
Without taking into account the mentioned aspects, it was not considered correct to establish a provision in writing with incomplete review, for this reason, the decision had to be overturned.
Conclusion: For the reasons described above, a unanimous decision was made on 16.02.2015 to OVERTURN the verdict by accepting the appeals of the defendant’s deputy, to refund the deposited amount to the depositor if requested, and to correct the decision for 15 days from the notification of the decision, including the way of correction. (¤¤)
