T.C. SUPREME
14.law office
Main: 2013/6642
Decision: 2013/9428
Date of decision: 20.06.2013
DURING THE PERIOD WHEN THE SEMEN AND STAY OF THE INTERVENTION ARE AT A MINIMUM, THE EXPEDITION SHOULD BE CARRIED OUT WITH AN EXPERT COMMITTEE WITH AN AGRICULTURAL EXPERT AND A GEOLOGICAL ENGINEER AT THE SCENE-INCOMPLETE EXAMINATION – THE PROVISION IS VIOLATED
ABSTRACT: In a concrete case, during the period when the waters are at least, an expert panel with an agricultural expert and a geological engineer at the scene should be conducted to determine the water needs of plaintiffs and defendants in accordance with scientific data, investigate whether the defendants meet the needs of another source, and establish a water regime taking into account that the parties have been using the water subject to the case since before. It was not considered correct to establish a provision with incomplete examination and research without taking into account the mentioned aspects, and therefore the decision had to be overturned.
(167 P. K. m. 1, 2, 3, 4, 5, 6) (4721 P. K. m. 756)
Case: At the end of the hearing held by the deputy plaintiffs against the defendants on preventing and requesting to stay in the water with a petition filed on 19.1.2010 day: examination of the decision on the adoption of the case dated 12.12.2012 by the Supreme Court defendant L. E. after the decision was made to accept the appeal petition, which is understood to be in the period requested by the, the file and all the papers in it were examined and considered necessary:
Decision: The plaintiffs stated that they had taken the water from the immovable property numbered 628, which they owned, to the defendants ‘immovable property numbered 744 by laying a motor and a pipe from the warehouse, and requested that the defendants’ interference with the water and the immovable property be eliminated by staying.
The defendants have defended the rejection of the case, arguing that the water subject to the lawsuit was extracted sixty years ago by their father and uncle, and they used it together. The court has decided to accept the case. The decision was appealed by defendant Lokman Engel.
1 -) According to the evidence collected for the trial and the contents of the file, it was necessary to decide on the rejection of the defendant’s other appeals that were outside the scope of the following paragraph.
2 -) 756 of the Turkish Civil Code No. 4721. 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 water of the real source comes from an aquifer. The water outlet can be from a point or from an area. This area is called the welding area. The source is the state of natural ascent of groundwater to the earth.
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 benefit.
In practice, the source is defined as . Groundwater has not entered the earth naturally, drainage, etc. if it is removed by means, not as a source, drainage or well, etc. it is referred to by names. Waters extracted in this way by human hands are considered groundwater.
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 (T. M. K. md.756/3).
A person who does not have enough water for his useful needs on his land or who incurs an exorbitant cost of obtaining this water must use the groundwater in the neighboring land 20. it is specified in the charter mentioned in the article (Law on Groundwater No. 167 1-6. substance).
In the concrete case, when the water flow rate of the subject of the case is taken to the evil eye (0.8 lt/sec), it is general water. On the other hand, everyone can benefit from public waters at the rate of their beneficial needs by protecting the priority and ancient right. The local expert expert declared that the water subject to the case came out spontaneously in the years 1950-1955 and was used for many years by the muris of both parties by agreement.
In this case, during the period when the water is minimal, the expert committee with an agricultural expert and a geological engineer at the scene should be determined in accordance with the scientific data, the situation of water needs of the plaintiffs and defendants should be determined by the agricultural expert, whether the defendants meet their needs from another source, and the water regime should be established taking into account that the parties have been using the water subject to the case since the beginning.
It was not considered correct to establish a written decision with incomplete examination and research without taking into account the mentioned aspects, and therefore the decision had to be overturned.
Conclusion: It was unanimously decided on 20.06.2013 to reject the defendant’s other appeals for reasons written in paragraph (1) above, to overturn the decision by accepting the appeals for the reasons described in paragraph (2), to refund the deposit to the depositor if the advance deposit is requested. (¤¤)
