Request For Prevention Of Encroachment On Water
T.C. JUDICIARY
14th Civil Chamber
Basis: 2014/3367
Decision: 2015/1576
Decision Date: 16.02.2015
REQUEST FOR PREVENTION OF APPROPRIATION OF WATER – THE PARTIES’ NEED FOR WATER THE RATE OF INFLUENCE OF THE WELLS ON EACH OTHER WHETHER THE WATER WILL RETURN TO ITS FORMER LEVEL IN CASE THE DEFENDANT’S WELL IS CLOSED – INCOMPLETE EXAMINATION – NECESSITY OF REVERSAL OF THE JUDGMENT
SUMMARY: The court should first determine the water needs of the parties by conducting discovery in the presence of geology, science and agriculture experts during the period when the water is at its lowest, the extent to which the plaintiff’s source is affected by the well drilled by the defendant (by pumping, etc. tests) should be determined. If the plaintiff’s well has enough water to meet the plaintiff’s needs even though it is affected, the lawsuit should be dismissed, if there is not enough water to meet the plaintiff’s needs, a water regime should be established to ensure that the plaintiff is provided with water at the rate at which it is affected, In the event that it is understood that the plaintiff’s well has dried up due to the well drilled by the defendant, it should be determined whether the water will be restored if the defendant’s well is closed, and if it is understood that it will not be restored, a water intake arrangement should be established to take the water from the defendant’s source as much as the plaintiff’s unmet need and an enforceable judgment should be established.
(Art. 704, 718, 756, 780, 837 of 4721 S. Code)
Case: At the end of the hearing held on the petition filed by the plaintiff’s attorney against the defendants on 3.7.2012, the judgment dated 2.7.2013 on the acceptance of the lawsuit was requested to be examined by the attorney for the defendants, and after the acceptance of the petition of appeal, which was understood to be in due time, the file and all the documents contained therein were examined and considered:
Decision: The plaintiff stated that the water source in the immovable property numbered 224 parcel, which he owns, has decreased due to the drilling well drilled by the defendant in the immovable property numbered 746 parcel and requested the prevention of the defendant’s seizure of the water. The defendant’s attorney argued that the defendant’s well was licensed and did not affect the plaintiff’s well and defended the dismissal of the lawsuit.
The court decided to partially accept the lawsuit, to reduce the pump power of the defendant’s water borehole in parcel numbered 746 from 4 liters per second to 2 liters per second and to prevent the defendant’s interference with the water in this way, and to reject the plaintiffs’ requests for the stay and the establishment of a water regime.
The judgment was appealed by the defendant’s counsel and the plaintiff’s counsel.
Pursuant to Article 718 of the Turkish Civil Code No. 4721; the ownership on the land covers the air above it and the layers of land below it to the extent that it is beneficial to use it. This ownership also includes structures, plants and resources, without prejudice to legal limitations.
Pursuant to Article 756 of the Turkish Civil Code No. 4721, which is regulated in parallel with this article; “Resources are an integral part of the land and their ownership can only be acquired together with the ownership of the land from which they originate. The right over the springs located on someone else’s land is registered in the land registry as an easement right. Groundwater is one of the waters belonging to the public interest. The ownership of the land does not result in the ownership of the groundwater beneath it. The provisions of special laws regarding the manner and extent of utilization of groundwater by landowners are reserved.”
The springs mentioned in both Article 718 and Article 756/2 of the Turkish Civil Code are different from groundwater.
A spring is a natural and permanently emerging water, which has its origin in groundwater, and is a special water that can be privately owned, and water that emerges artificially or occasionally does not qualify as a spring (Gürsoy/Eren/Cansel, Turkish Property Law, Ankara 1978, p.618). In addition, if the water coming out of the spring is abundant enough to form a public stream, the spring can no longer be subject to private property. Again, the procedure of utilizing the water extracted from groundwater by artificial means such as drilling is also subject to the Law No. 167 on Groundwater.
In other words, if the spring water has a flow rate that exceeds the boundaries of the land from which it spontaneously springs or if there is excess after meeting the needs of the owner, it is considered public water and neighbors can also benefit from it. On the other hand, if the spring water originates from land that is not deeded (e.g. pasture, forest, etc.), it is general water regardless of the flow rate of the water. Everyone can benefit from this water in proportion to their needs, without violating the ancient and priority rights.
Private water, on the other hand, is water that comes out of the title deeded immovable and is sufficient to meet only the personal needs of that immovable and its owner.
The right holder has the authority to dispose of the spring water, in other words, private water, which is subject to the ownership of the land. He may use this water himself or grant an easement right to another person to use the water in the spring. In addition, it is also authorized to file lawsuits for the elimination of encroachment, if there is an encroachment on the resource based on the right of ownership.
Pursuant to Article 756/2 of the Turkish Civil Code No. 4721, “The right over the springs located on someone else’s land shall be registered in the land registry as an easement right.” The right to a spring can only be established with the consent of the owner of the title deed through an official deed to be issued in the land registry.
Similarly, Article 837 of the Turkish Civil Code No. 4721 stipulates that “The right of easement over the spring located on someone else’s land obliges the owner of this land to tolerate the taking and flowing of water. Unless otherwise agreed, this right may be transferred to another person and passes to the heir. If the spring right is independent and established for at least 30 years, it may be registered as immovable in the land registry.”
As stated in the Article, the resource easement may be established directly by the person or its transfer to others may be agreed upon. When it is established as an independent and permanent right, it is also possible to register it on a separate page in the land registry. Although there is no explicit provision in the law regarding the acquisition of the resource right, it is accepted that the provisions regarding the acquisition of immovable property shall be applied by making use of Article 780 of the Turkish Civil Code by analogy in accordance with the provisions on the acquisition of other easements attached to property (Art. 704/2). In this case, it is possible to register the resource right in the land registry with an official contract.
Indeed, the water that may be subject to the spring easement specified in Articles 756/2 and 837 of the Turkish Civil Code No. 4721 is private water, and groundwater, which is general water, is excluded from these regulations. As a matter of fact, general waters cannot be accepted within the scope of immovable property.
As for the concrete case in the light of the principles explained above; although it was decided to partially accept and partially reject the lawsuit, the examination and researches made by the court are not sufficient to establish a judgment. Namely; the parties’ need for the water subject to the lawsuit, the rate at which the wells subject to the lawsuit affect each other, and whether the water will return to its former level if the defendant’s well is closed have not been determined by an expert report.
For this reason, the court should first determine the water needs of the parties by conducting discovery in the presence of geology, science and agriculture experts during the period when the water is at its lowest, the extent to which the plaintiff’s source is affected by the well drilled later by the defendant (by pumping, etc. tests) should be determined. If the plaintiff’s well has enough water to meet the plaintiff’s needs even though it is affected, the lawsuit should be dismissed, if there is not enough water to meet the plaintiff’s needs, a water regime should be established to ensure that the plaintiff is provided with water at the rate at which it is affected, In the event that it is understood that the plaintiff’s well has dried up due to the well drilled by the defendant later, it should be determined whether the water will be restored if the defendant’s well is closed, and if it is understood that it will not be restored, a water intake arrangement should be established to take the water from the defendant’s source as much as the plaintiff’s unmet need and an enforceable judgment should be established.
Without considering the aforementioned aspects, it was not deemed correct to establish a written judgment with incomplete examination, and for this reason, the decision had to be reversed.
Conclusion For the reasons explained above, it was unanimously decided on 16.02.2015 to accept the appeal objections of the defendant’s attorney and to VACATE the judgment, to refund the prepaid fee to the depositor if requested, and to open the way for correction of the decision for 15 days after the notification of the decision. (¤¤)
Synergy Legislation and Case Law Program