T.R. SUPREME COURT
- Law Office
Basis: 2013/8111
Decision: 2013/12750
Decision Date: 03.10.2013
THE REQUEST TO PREVENT THE INTERVENTIONS – SOURCE WATER IS TRANSFERRED BY THE PROTOCOL – THE NEED TO MEASURE THE FLOW OF THE WATER – EXCESS WATER CAN BE USED AS MUCH AS THE JURISDICTION VILLAGE NEEDS – OVERVIEW OF THE PROVISION
SUMMARY: The plaintiff M… Village stated that the spring water they have been using in the plateau since ancient times was transferred by the defendant A… Village to the other defendant Ç… Village with a protocol, and the defendant Ç… Village stated that they were conducting excavations to take the water subject to the lawsuit, and demanded that the defendants prevent their intervention in the water. In the period when the waters are the least (August-September), exploration should be made by the expert panel of experts (geologist, agriculture and science), the ancient or priority rights of the parties in the water in question should be determined by listening to impartial local experts, the flow of water should be measured, the needs of the parties for water should be determined. should be determined with scientific data, if it is understood that the people on the highland have ancient or priority rights, the needs of the people and animals on the highland should be met first, and a decision should be made according to the result, considering that the defendant Ç… Village can benefit from the excess water. Without considering the aforementioned issues, it was not considered right to make a judgment with incomplete examination and research, therefore the decision had to be reversed.
(4721 S. K. art. 756) (167 S. K. art. 1, 2, 3, 4, 5, 6)
Lawsuit: At the end of the hearing held by the attorney of the plaintiff, upon the petition filed against the defendants on 18.08.2004 and requesting the prevention of water littering; After the decision of the Court of Cassation, dated 27.11.2012, regarding the rejection of the case, the appellant’s village attorney decided to accept the appeal petition, which was understood to be in time, the file and all the papers in it were examined and the necessary consideration was taken:
Decision: The plaintiff M… Village stated that the spring water they had been using in the plateau since ancient times was transferred by the defendant A… Village to the other defendant Ç… Village by protocol, and the defendant Ç… Village stated that they were carrying out excavations to remove the water subject to the lawsuit, and demanded that the defendants prevent their intervention in the water.
Defendant A… Village and Ç… Village, alleging that with the protocol dated 08.09.2003 between the two villages, the use of the water subject to the lawsuit was left to Ç… They argued that the case was dismissed.
The court dismissed the case.
The judgment was appealed by the plaintiff’s attorney.
According to Article 756 of the Turkish Civil Code; It has been stated that resources are an integral part of the land and their ownership can only be gained together with the ownership of the land from which they originate.
The water of the true spring comes from an aquifer. The water outlet can be from a point or an area. This area is called the resource area. The source is the natural emergence of groundwater to the surface.
If the spring water is at a flow rate exceeding the boundaries of the land where it spontaneously boils, or if there is excess after meeting the needs of the owner, it is accepted as general water and the neighbors can benefit.
source in practice; It is defined as . Groundwater has not come to the surface naturally, drainage etc. if it is extracted by means of drainage or well etc., not as a source. referred to by names. The water extracted by human hands in this way is considered as groundwater.
Groundwaters belong to the public interest. Owning the land does not result in owning the underground waters under it (TMK. md.756/3).
The conditions for benefiting from the groundwater in the neighboring land of a person who does not have enough water for his useful needs on his land or who costs exorbitant costs to obtain this water are specified in the regulation mentioned in Article 20 (Ground Water Law No. 167, Article 1-6).
In the concrete case; The court made a discovery on the spot on 04.06.2012, no agricultural expert was present during the discovery, the flow of water was not measured by the geology expert, and the water needs of people and animals in the plateau were not determined.
In this case, the court should make a discovery by the expert panel of experts (geologist, agriculture and science) during the period when the waters are the least (August-September), listen to the impartial local experts and determine the ancient or priority rights of the parties in the water in question, the flow of water should be measured, the water flow of the parties should be measured. The needs of the people on the plateau should be determined with scientific data.
Without considering the aforementioned issues, it was not considered correct to make a written judgment with incomplete examination and research, therefore the decision had to be reversed.
Conclusion: With the acceptance of the plaintiff’s attorney’s objections for the reasons explained above, the judgment was OVERFINED,
It was unanimously decided on 03.10.2013 that the fee paid in advance would be refunded to the depositor upon request. (¤¤)
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