Preventing Interventions
T.C. JUDICIARY
14th Civil Chamber
Basis: 2013/8111
Decision: 2013/12750
Date of Decision: 03.10.2013
REQUEST FOR PREVENTION OF INTERFERENCE – THE SPRING WATER WAS TRANSFERRED WITH A PROTOCOL – THE FLOW RATE OF THE WATER SHOULD BE MEASURED – THE DEFENDANT VILLAGE CAN BENEFIT FROM THE EXCESS WATER AS MUCH AS ITS NEEDS – REVERSAL OF THE JUDGMENT
SUMMARY: The plaintiff M… Village stated that the spring water that 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 the defendant Ç… Village carried out excavation works to take the water subject to the lawsuit and requested the prevention of the defendants’ interference with the water. The court stated that discovery should be made by a board of experts (geologist, agriculture and science) during the period when the water is at its lowest (August-September), the ancient or priority rights of the parties in the water subject to the lawsuit should be determined by listening to the impartial local experts on site, the flow rate of the water should be measured, the water needs of the parties should be determined with scientific data, if it is understood that the people in the plateau have ancient or priority rights, the needs of the people and animals in the plateau should be met first, and the excess water should be transferred to the defendant Ç… Village. Considering that the village can benefit as much as it needs, a decision should be made accordingly. It has not been deemed correct to have made a judgment based on incomplete examination and research without considering the aforementioned issues, and for this reason, the decision had to be reversed.
(Article 756 of the Law No. 4721) (Article 1, 2, 3, 4, 5, 6 of the Law No. 167)
Case: At the end of the hearing held upon the petition filed by the plaintiff’s attorney against the defendants on 18.08.2004 for the prevention of encroachment on the water; the judgment dated 27.11.2012 on the dismissal of the lawsuit was requested to be examined by the plaintiff village attorney, and after it was decided to accept 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 plaintiff M… Village stated that the spring water that they have been using in the plateau since ancient times was transferred to the other defendant Ç… Village by the defendant A… Village with a protocol, and the defendant Ç… Village stated that the defendant Ç… Village carried out excavation works to take the water subject to the lawsuit and requested the prevention of the defendants’ interference with the water.
Defendant A… Village and Ç… Village argued that the use of the water subject to the lawsuit was left to Ç… Village for 49 years with the protocol dated 08.09.2003 between the two villages, but that the administrative court has jurisdiction if the annulment of this protocol is requested, and that the water subject to the lawsuit belongs to their villages and defended the dismissal of the lawsuit.
The court decided to dismiss the lawsuit.
The judgment was appealed by the plaintiff’s attorney.
According to Article 756 of the Turkish Civil Code, 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 may be from a point or an area. This area is called the source area. A spring is a natural occurrence of groundwater coming to the surface of the earth.
If the spring water is at 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 <where the upper level of groundwater cuts the surface of the earth>. If the groundwater 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 is one of the waters belonging to the public interest. The ownership of land does not result in the ownership of the groundwater beneath it (Article 756/3 of the 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 in his land or whose obtaining this water requires an exorbitant expense are specified in the regulation mentioned in Article 20 (Article 1-6 of the Law No. 167 on Groundwater).
In the concrete case, the court conducted a discovery on 04.06.2012, the agricultural expert was not present at the discovery, the flow rate of the water was not measured by the geological expert, and the water needs of the people and animals in the plateau were not determined.
In this case, the court should conduct discovery by a board of experts (geologist, agriculture and science) during the period when the water is at its lowest (August-September), the parties’ ancient or priority rights in the water subject to the lawsuit should be determined by listening to the impartial local experts on site, the flow rate of the water should be measured, the parties’ needs for water should be determined with scientific data, if it is understood that the people in the plateau have ancient or priority rights, the needs of the people and animals in the plateau should be met first, and the excess water should be transferred to the defendant Ç… Considering that the village can benefit as much as it needs, a decision should be made accordingly.
It was not deemed correct to make a written judgment with incomplete examination and research without considering the aforementioned issues, and for this reason, the decision had to be reversed.
Conclusion For the reasons explained above, it was unanimously decided on 03.10.2013 to accept the appellate objections of the plaintiff’s attorney and to VACATE the judgment, and to refund the prepaid fee to the depositor upon request. (¤¤)
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