T.C. SUPREME
14.law office
Main: 2015/9154
Decision: 9176/2015
Date of decision: 19.10.2015
THE CASE OF PREVENTION OF ELATION – ACCORDING TO EXPERT REPORTS AND WITNESS STATEMENTS, THE PLAINTIFF DOES NOT USE WATER TO ENGAGE IN AGRICULTURAL ACTIVITIES IN HIS REAL ESTATE – VIOLATION OF THE PROVISION
SUMMARY: in the case elatma on the Prevention of the plaintiff’s claim in the case of land was made, although porking away from the source, discovery, and expert witness reports, witness statements, expert witnesses and listened to the scene, according to the plaintiff’s land where water is used for agricultural activities on the water supply, the development of plants that have adapted to the region of the season as they need to cover the amount of water that lacks, it is understood. While the court should have decided to dismiss the case, the establishment of a judgment with an erroneous assessment was not considered correct, and the decision should have been overturned. It was decided to overturn the verdict.
(4721 P. K. m. 718, 756, 837)
The case and the verdict: plaintiff against the defendant with the petition by the attorney 23.11.2010 stay in the water for the day of the hearing on the request at the end of the intervention, and Prevention; the case of partially agree, partially provision given for rejection examination as requested by the deputy blog 23.12.2014 the Supreme Court of the defendant, 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:
The case relates to the prevention of water damage and the request to stay.
The plaintiff requested that the elation be prevented and the pipes be removed, stating that the water coming out of the real estate numbered 13 parcels of 165 islands where the stakeholder is located was piped by the defendant’s unauthorized excavation work, that his real estate lost its watery land property and the trees dried up, and that the pipes be removed.
The defendant village headman’s office argued that the water subject to the lawsuit was used as drinking water, the real estate where the source and pipes are located did not belong to the plaintiff, and the case was dismissed.
By the court, made at the scene as a result of the discovery of the science of experts according to the report, the Treasury and the water at the place of work in the case registered in the name of premises partial name 8 No. 165 parcel of the move in spite of the case upon the adoption, the expert report and the schematic in (A) indicated with the letter of the defendant to the water source to the Prevention of elatma legal entity of the village, on the left of the plaintiff’s claims over land with the water line prompt is dismissed.
The decision was appealed by the defendant’s deputy.
718 Of the Turkish Civil Code. 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.
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, if the source water comes out of the land that is not registered (for example, pasture, forest, etc.), 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 and 837 of the Turkish Civil Code. 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; According to the scope of the file and the evidence collected, the water source of the case remains within the treasury land and is of a general water nature. Everyone can benefit from public waters at the rate they need, without violating the ancient right of priority. However, the defendant village headman took the water to the village by laying pipes to meet the village’s drinking water needs. It is clear that the village’s drinking water needs take precedence over the plaintiff’s land irrigation. In the case, although the plaintiff’s claim was made away from the source, Land of the porking, discovery, and expert witness reports, witness statements, expert witnesses and listened to the scene, according to the plaintiff’s land where water is used for agricultural activities on the water supply, the development of plants that have adapted to the region of the season as they need to cover the amount of water that lacks the plaintiff’s property on meadow grass and trees do not require water, and protect the vitality of the trees, Meadows and trees, feeding from the rain waters, it is understood that the trees benefit from groundwater due to the fact that their roots go deep, and the plaintiff does not need water.
In this case, the court should have decided to dismiss the case, while the establishment of a written judgment with an erroneous assessment was not considered correct, and the decision should have been overturned.
Conclusion: For the reasons described above, it was unanimously decided on 19.10.2015 that the decision would be overturned by the acceptance of the appeals of the defendant’s deputy, the amount deposited in advance would be refunded to the depositor upon request, and the way to correct the decision would be open within 15 days of notification of the decision. (¤¤)
