Prevention Of Encroachment Case
T.C. JUDICIARY
14th Civil Chamber
Main article: 2015/9154
Decision: 2015/9176
Date of Decision: 19.10.2015
CASE FOR PREVENTION OF ENCROACHMENT – ACCORDING TO THE EXPERT REPORTS AND WITNESS STATEMENTS, THE PLAINTIFF DID NOT UTILIZE THE WATER FOR AGRICULTURAL ACTIVITIES ON HIS PROPERTY – REVERSAL OF THE JUDGMENT
SUMMARY: Although it is claimed that the plaintiff’s lands have been irrigated from the source subject to the lawsuit, according to the discovery and expert reports, local expert and witness statements, it is understood that the plaintiff does not benefit from the water in order to carry out agricultural activities on the immovable property, and that the water source is unable to meet the amount of water needed by the cultivated plants adapted to the region as of the growing season. While the court should have decided to dismiss the lawsuit, it was not deemed correct to make a judgment with an erroneous evaluation, and the decision should be reversed. The judgment is reversed.
(4721 S. Code Art. 718, 756, 837)
Case and Decision: At the end of the hearing held upon the petition filed by the plaintiffs’ attorney against the defendant on 23.11.2010 for the prevention of interference with the water and the stay; the Supreme Court of Appeal review of the judgment dated 23.12.2014, which was partially accepted and partially rejected, was requested by the defendant’s 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:
The lawsuit is related to the request for the prevention of encroachment on the water and the request for the stay.
The plaintiff requested the prevention of encroachment and the removal of the pipes by stating that the defendant made unauthorized excavation works and laid pipes in the water coming out of the immovable property numbered 165 block 13 parcel, of which he is a shareholder, and that his immovable property has lost its irrigated land feature and the trees have dried up.
The defendant village headman’s office defended that the water subject to the lawsuit was used as drinking water, the source and the immovable property where the pipes were located did not belong to the plaintiff and the lawsuit was dismissed.
The court decided to partially accept the lawsuit, to prevent the defendant village legal entity from seizing the water source shown with the letter (A) in the expert report and sketch, and to reject the request for the removal of the water line that the plaintiff claimed to have passed through his land, although the water subject to the lawsuit and the place where the work was carried out remained on the immovable property numbered 165 block 8 parcel registered in the name of the treasury, according to the report of the science expert obtained as a result of the on-site discovery.
The judgment was appealed by the defendant’s attorney.
Pursuant to Article 718 of the Turkish Civil Code; the ownership over the land includes the air above it and the layers of land below it to the extent that it is beneficial to use it. Without prejudice to legal limitations, structures, plants and resources are also included in the scope of this ownership.
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 subject to private property, 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 a surplus 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 only sufficient to meet the personal needs of the 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, if there is an encroachment on the source based on the right of ownership, it is also authorized to file lawsuits for the elimination of the encroachment.
The water that may be subject to the source easement specified in Articles 756/2 and 837 of the Turkish Civil Code 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; according to the scope of the file and the evidence collected, the water source subject to the lawsuit is located within the treasury land and is in the nature of general water. Everyone can benefit from general waters in proportion to their needs without violating the ancient priority right. However, the defendant village headman took the water to the village by laying pipes to meet the drinking water needs of the village. It is clear that the village’s need for drinking water takes priority over the plaintiff’s land irrigation. Although it is claimed that the plaintiff’s lands have been irrigated from the source subject to the lawsuit for a long time, according to the discovery and expert reports, local expert and witness statements, the plaintiff did not benefit from the water to carry out agricultural activities on his immovable property, and that the water source is unable to meet the amount of water needed by the cultivated plants adapted to the region as of the growing season, It is understood that there is no need for water for the meadow grass and trees on the plaintiff’s land, the trees preserve their vitality, the meadow and trees are fed by rainwater, the trees benefit from groundwater due to the deep roots of the trees, and the plaintiff does not need water.
In this case, while the court should have decided to dismiss the lawsuit, it was not deemed correct to make a written judgment with a wrong evaluation, and the decision should be reversed.
Conclusion For the reasons explained above, the appeal objections of the defendant’s attorney were accepted and the judgment was reversed, the prepaid fee was returned to the depositor upon request, and it was unanimously decided on 19.10.2015, within 15 days after the notification of the decision, the way of correction of the decision being open. (¤¤)
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