T.R. SUPREME COURT
- Law Office
Basis: 2013/6642
Decision: 2013/9428
Decision Date: 20.06.2013
SUMMARY AND CAL REQUEST OF THE INTERVENTION – EXECUTION BY A COMMITTEE WITH AGRICULTURAL EXPERT AND GEOLOGICAL ENGINEER AT THE SITE DURING LAST WATER PERIOD – INCOMPLETE EXAMINATION – JUDGMENT
ABSTRACT: In the concrete case, the water need of the plaintiffs and the defendants should be determined by the agricultural expert in accordance with the scientific data, it should be investigated whether the defendants meet their needs from another source, it should be investigated, the parties should be the subject of the case, with the execution of the exploration with the expert committee, which has an agricultural expert and a geological engineer, during the period of least water. water regime should be established by taking into account that they have used water for a long time. It was not considered right to make a judgment with incomplete examination and research without considering the mentioned aspects, so the decision had to be reversed.
(167 S. K. art. 1, 2, 3, 4, 5, 6) (4721 S. K. art. 756)
Lawsuit: At the end of the hearing held by the attorney of the plaintiffs against the defendants on 19.1.2010, on the prevention of litigation and the request to stay: After the decision on the acceptance of the appeal petition, which is understood to be in time, the defendant LE requested that the judgment dated 12.12.2012 be examined by the Court of Cassation. Then, the file and all the papers in it were examined and the necessary thought was taken:
Decision: The plaintiffs stated that the defendants took the water from the immovable with parcel number 628 from the warehouse to the immovable number 744 by laying pipes and by motor, and requested that the interventions of the defendants on the water and the immovable be eliminated.
The defendants defended the dismissal of the case, alleging that the water subject to the case was taken out by their father and uncle sixty years ago and that they were used together. The court decided to accept the case. The defendant Lokman Engel appealed the judgment.
1-) According to the evidence gathered in the trial and the content of the file, it was necessary to reject the defendant’s other appeals, which are outside the scope of the paragraph below.
2-) According to Article 756 of the Turkish Civil Code No. 4721; It has been stated that the resources are an integral part of the land, and their ownership can only be acquired 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 (T.M.K.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 whose obtaining this water requires exorbitant costs, are specified in the regulation mentioned in Article 20 (Ground Water Law No. 167, Article 1-6).
In the concrete case, considering the water flow rate (0.8 lt/sec) which is the subject of the case, it is in the nature of general water. On the other hand, everyone can benefit from the general waters in proportion to their useful needs, by preserving their priority and ancient right. The local expert declared that the water subject to the case came out spontaneously between 1950-1955 and was used for years by agreement of the decedents of both sides.
In this case, the water need of the plaintiffs and the defendants should be determined by the agricultural expert in accordance with scientific data, with the execution of the exploration with the expert committee in which there is an agricultural expert and a geological engineer in the area when the water is the least, it should be investigated whether it meets the needs of the defendants from another source, water regime should be established by taking into account the use of water.
It was not considered right to make a written judgment with incomplete examination and research, without considering the mentioned aspects, and therefore the decision had to be reversed.
Conclusion: On 20.06.2013, it was unanimously decided to reject the defendant’s other appeal objections for the reasons stated in paragraph (1) above, to overturn the verdict with the acceptance of the objections for the reasons explained in paragraph (2), and to return the fee paid in advance to the depositor if requested. (¤¤)
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