T.C. SUPREME
14.law office
Main: 2013/8111
Decision: 2013/12750
Date of decision: 03.10.2013
- THE TRANSFER OF SPRING WATER BY PROTOCOL – THE NEED TO MEASURE THE FLOW RATE OF WATER-EXCESS WATER CAN BE USED AS MUCH AS THE DEFENDANT VILLAGE NEEDS – VIOLATION OF THE PROVISION
ABSTRACT: The plaintiff M … Village stated that the spring water they have used on the plateau since ancient times was transferred by the defendant A… Village to the other defendant C… Village by protocol, and the defendant C… Village requested that the defendants prevent their interference in the water by stating that they were excavating to take the water subject to the case. By the court of water, at least during that period (August-September) the board of expert witnesses (geologist, agriculture, and science), the discovery should be made by means of a neutral scene and heard at the scene of experts or priority rights of the parties in the case should be determined as ancient water, water flow rate should be measured, the water needs of the scientific data with the parties should be identified in the Highlands, or plateau that they met the needs of ancient humans and animals should be the first priority rights, if there is too much water, it should be decided according to the result, taking into account that the defendant village can benefit as much as it needs. It was not considered correct to establish a provision with incomplete examination and research without taking into account the mentioned issues, and therefore the decision had to be overturned.
(4721 P. K. m. 756) (167 P. K. m. 1, 2, 3, 4, 5, 6)
Litigation: 18.08.2004 against the defendant by the plaintiff’s attorney is given on the day of the hearing on the petition with the Prevention of the water at the end of the request elatma; 27.11.2012 given for the rejection of the case-time provision as requested by the village attorney of the Supreme Court examination of the plaintiff, but in time, apparently decided upon the adoption of the petition of Appeal has been resolved by examining all the papers in the file and:
Decision: The plaintiff M… Village stated that the spring water they have used on the plateau since ancient times was transferred by the defendant A… Village to the other defendant C… Village by protocol, and the defendant C… Village conducted excavation work to take the water subject to the case, stating that the defendants ‘ interference in the water should be prevented.
The defendant A… Village and Ç… Village defended the rejection of the case by arguing that the use of the water subject to the case was left to Ç … village for 49 years by the protocol dated 08.09.2003, made between the two villages, but if the cancellation of this protocol was requested, the administrative court was in charge, the water subject to the case belonged to their village.dec.
The court decided to dismiss the case.
The decision was appealed by the acting plaintiff.
756 Of the Turkish Civil Code. 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 release of groundwater to the earth.
If the spring water is at a flow rate that will exceed 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. The waters extracted by human hands in this way 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 (TMK. 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 (Groundwater Law No. 167 1-6. substance).
In a concrete case, the court discovered on 04.06.2012 at the scene, no agricultural expert was present at the discovery, the flow rate of water was not measured by the geology expert, and the water needs of people and animals on the plateau were not determined.
In this case by the court of water, at least during that period (August-September) the board of expert witnesses (geologist, agriculture, and science), the discovery should be made by means of a neutral scene and heard at the scene of experts or priority rights of the parties in the case should be determined as ancient water, water flow rate should be measured, the water needs of the scientific data with the parties should be identified in the Highlands, or plateau that they met the needs of ancient humans and animals should be the first priority rights, if there is too much water, it should be decided according to the result, taking into account that the defendant village can benefit as much as it needs.
It was not considered correct to establish a provision in writing with incomplete examination and research, without taking into account the mentioned issues, and therefore the decision had to be overturned.
Conclusion: For the reasons described above, it was unanimously decided on 03.10.2013 to accept the appeals of the plaintiff’s deputy and OVERTURN the verdict, refund the advance deposit to the depositor upon request. (¤¤)
