Denial Of Intervention
T.C. JUDICIARY
14th Civil Chamber
Basis: 2013/6642
Decision: 2013/9428
Date of Decision: 20.06.2013
REQUEST FOR RESTRAINT AND STAY – CONDUCTING DISCOVERY WITH AN EXPERT COMMITTEE CONSISTING OF AN AGRICULTURAL EXPERT AND A GEOLOGICAL ENGINEER DURING THE PERIOD WHEN THE WATERS ARE AT THEIR LOWEST – INCOMPLETE INVESTIGATION – JUDGMENT REVERSED
SUMMARY: In the concrete case, the water needs of the plaintiffs and the defendants should be determined by the agricultural expert in accordance with scientific data by conducting discovery with an expert committee including an agricultural expert and a geological engineer, it should be investigated whether the defendants meet their needs from other sources, and the water regime should be established by taking into account that the parties have been using the water subject to the lawsuit since before. It has not been deemed correct to have made a judgment based on incomplete examination and research without considering the aforementioned aspects, and for this reason, the decision had to be reversed.
(Article 1, 2, 3, 4, 5, 6 of Law No. 167) (Article 756 of Law No. 4721)
Case: At the end of the hearing held upon the petition filed by the plaintiffs’ attorney against the defendants on 19.1.2010 for the prevention of encroachment on the water and the request for the stay, the judgment dated 12.12.2012 on the acceptance of the case was requested by the defendant L. E., and after the acceptance of the petition of appeal, which was understood to be in due time, the file and all the papers in it were examined and considered accordingly:
Decision: The plaintiffs stated that the defendants diverted the water from the immovable property numbered 628 parcel, which they own, to the immovable property numbered 744 parcel by motorizing and laying pipes from the tank and requested the removal of the interventions of the defendants to the water and the immovable property.
The defendants argued that the water subject to the lawsuit was extracted sixty years ago by their fathers and uncles and that they used it together and defended the rejection of the lawsuit. The court decided to accept the lawsuit. The judgment was appealed by the defendant Lokman Engel.
1-) According to the trial, the collected evidence and the contents of the file, it is necessary to reject the other appellate objections of the defendant which are not covered by the following paragraph.
2-) According to Article 756 of the Turkish Civil Code No. 4721; springs 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 water of a real spring comes from an aquifer. The water outlet can be from a point or an area. This area is called the source area. A spring is a natural occurrence of underground water coming to the surface of the earth.
If the spring water has a flow rate that exceeds the boundaries of the land where it spontaneously springs or if there is excess after meeting the needs of the owner, it is considered public water and neighbors can benefit from it.
In practice, a spring is defined as <the place where the upper level of underground water cuts the ground surface>. If the underground water does not come to the surface of the earth naturally, but is extracted through drainage, etc., it is not referred to as a spring, but as a drainage or well, etc. Water extracted by human hands in this way is considered groundwater.
Groundwater belongs to the public interest. The ownership of land does not result in the ownership of the groundwater beneath it (Art. 756/3 of the Turkish Civil Code).
The conditions of utilization of the groundwater in the neighboring land by a person who does not have sufficient amount of water for his useful needs on his land or whose obtaining this water requires an exorbitant expense shall be specified in the regulation mentioned in Article 20 (Article 1-6 of the Law No. 167 on Groundwater).
In the concrete case, when the flow rate of the water subject to the lawsuit is taken into consideration (0.8 lt/sec), it has the quality of general water. Everyone can benefit from general waters in proportion to their useful needs by protecting the priority and ancient right. The local expert stated that the water subject to the lawsuit emerged spontaneously in 1950-1955 and was used for years by the muris of both parties in agreement.
In this case, during the period when the water is at its lowest, the water needs 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 other sources, and the water regime should be established by taking into account that the parties have been using the water subject to the lawsuit since before.
It was not deemed correct to establish a written judgment with incomplete examination and research without considering the aforementioned aspects, and for this reason, the decision had to be reversed.
Conclusion For the reasons written in subparagraph (1) above, the other appellate objections of the defendant are rejected, and for the reasons explained in subparagraph (2) above, the appellate objections are accepted and the judgment is reversed, and the prepaid fee is returned to the depositor if requested, it was unanimously decided on 20.06.2013. (¤¤)
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