Request For Collection Of Easement Rights
T.C. JUDICIARY
5th Civil Chamber
Basis: 2014/4788
Decision: 2014/12549
Decision Date: 06.05.2014
REQUEST FOR THE COLLECTION OF THE RIGHT OF USUFRUCT – OVERDETERMINATION OF THE RIGHT OF USUFRUCT FEE, THE APPLICATION AND ATTORNEY FEES PAID BY THE PLAINTIFF SHOULD BE REFUNDED – REVERSAL OF THE JUDGMENT
SUMMARY: Considering the nature, geometric condition, surface area and the route of the energy transmission line of the immovable subject to the lawsuit, it was not considered correct to over-determine the value of the easement right according to the report that determined a higher rate of impairment without considering that the rate of impairment due to the easement right cannot exceed (1) percent of the entire value of the immovable, and not to consider that the application and attorney fees paid by the plaintiff should be returned. The judgment must be reversed.
(4721 S. Code Art. 756)
Case and Decision: At the end of the trial held for the lawsuit between the parties for the collection of the cost of the pylon location and the easement right for the immovable property through which the energy transmission line was passed without expropriation: The Supreme Court of Appeals has been requested to review the judgment with the petition submitted by the attorney of the defendant administration, and after the documents in the file were read and the dispute was understood, the necessity was discussed and considered:
The lawsuit is related to the claim for the collection of the cost of the pylon location and the easement right for the immovable property through which the energy transmission line was passed without expropriation.
The court decided to accept the lawsuit and the judgment was appealed by the defendant administration.
There is no inconsistency in the valuation of the immovable land subject to the lawsuit according to the income method and the decision to collect the pylon location fee and the easement right.
However
1- Considering the nature, geometric condition, surface area and the route of the energy transmission line of the immovable subject to the lawsuit, considering that the rate of decrease in value due to the easement right cannot exceed (1) percent of the entire value of the immovable, over-determining the price of the easement right according to the report that determines a higher rate of decrease in value,
2- Failure to consider that the application and attorney fees paid by the plaintiff should be returned,
Not considered correct.
Conclusion: Since the appellate objections of the plaintiff’s attorney are appropriate, it was unanimously decided on 06.05.2014 that the judgment shall be DISMISSED in accordance with Article 428 of the Code of Civil Procedure for the reasons explained, the prepaid appeal fee shall be refunded upon request and the appeal fee shall be registered to the Treasury. (¤¤)
Synergy Legislation and Case Law Program