TURKISH SUPREME COURT
14th Civil Chamber
Main Case No.: 2014/3367
Decision No.: 2015/1576
Date of Decision: February 16, 2015
PREVENTION OF WATER SOURCE DEPLETION – THE PARTIES’ WATER NEEDS – THE DEGREE TO WHICH WELLS AFFECT ONE ANOTHER – WHETHER THE WATER LEVEL WILL RETURN TO ITS PREVIOUS LEVEL IF THE DEFENDANT’S WELL IS CLOSED – INADEQUATE INVESTIGATION – DUE TO A VIOLATION OF THE JUDGMENT
SUMMARY:
The parties’ water needs must first be determined through an investigation conducted with the assistance of geological, scientific, and agricultural experts, at least during the period the case was pending in court. The extent to which the plaintiff’s water source has been affected by the well subsequently opened by the defendant (e.g., pumping) must be assessed.
If there is sufficient water to meet the plaintiff’s needs, a water management system must be established to ensure that the affected water volume is provided to the plaintiff. If it is determined that the plaintiff’s well has dried up due to the well later drilled by the defendant and the defendant’s well has been closed, it must be determined whether water will be insufficient if the defendant’s well is closed. I f it is determined that there would be no shortage, a water extraction device should be established to draw water from the defendant’s source and to meet the plaintiff’s unmet needs, thereby facilitating water supply.
(Turkish Civil Code Art. 704, 718, 756, 780, 837)
Case:
Following the hearing held on July 3, 2012, regarding the complaint filed by the plaintiff’s attorney against the defendants, the Supreme Court reviewed the decision dated July 2, 2013, accepting the case, examined the file and all documents therein, and, after deciding to accept the appeal petition—which was found to have been filed within the prescribed timeframe as requested by the defendant’s attorney—deemed it necessary.
Decision:
Th e plaintiff claimed that the water source located on property No. 224, of which he is the owner, had diminished due to the well drilled by the defendant on property No. 746, and requested that the defendant be prohibited from drawing water from this well. The defendant’s attorney, however, argued that the well belonging to the defendant was licensed and did not affect the plaintiff’s well, and requested that the case be dismissed.
The court partially granted the claim, ordering the defendant to reduce the pumping capacity of the water well on parcel No. 746 from 4 liters per second to 2 liters per second, and dismissing the defendant’s claims regarding water intervention, while also dismissing the plaintiffs’ claims for the establishment of a water regime and the cessation of water supply.
Both the defendant’s and the plaintiffs’ attorneys filed objections to the decision.
According to Article 718 of the Turkish Civil Code No. 4721: “Ownership of land encompasses the air above it and the water resources beneath it to the extent that their use is beneficial. This ownership also includes structures, facilities, and resources, subject to legal limitations.”
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In accordance with Article 756 of the Turkish Civil Code No. 4721, which is aligned with the provisions of this article: “Resources are an inseparable part of the land, and ownership of such resources can only be acquired together with ownership of the land from which they originate. Rights regarding resources located on another’s land are registered in the land registry as an easement.” Groundwater is one of the waters belonging to the public interest. Ownership of a spring does not imply ownership of the underlying groundwater. Provisions of special laws regarding the manner and scope of landowners’ use of groundwater remain reserved.”
The springs referred to in Article 718 and Article 756/2 of the Turkish Civil Code are distinct from groundwater.
If groundwater—which is a source, origin, or a continuous flow of water subject to private ownership along a specific route—is obtained through artificial means or by extraction, the quality of the water source is also acquired in the same manner (Gursoy/Eren/Cansel, Turkish Property Law, Ankara, 1978, p. 618). Furthermore, if the water flowing from the spring is abundant enough to form a public watercourse, the spring can no longer be subject to private ownership. Similarly, the procedures for using water extracted from groundwater through artificial means, such as drilling, are regulated by the Groundwater Law No. 167.
In other words, if the spring water flows at a rate exceeding the boundaries of the land from which it naturally springs, or if there is excess water remaining after meeting the owner’s needs, this water is considered water for general use, and neighbors may also benefit from it. Furthermore, spring water obtained from unregistered lands (such as pastures, forests, etc.) is water for general use regardless of its flow rate. On the other hand, everyone may use this water to the extent of their needs without infringing upon prior and established rights.
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On the other hand, private water is water that emerges from registered real property and is sufficient only to meet the personal needs of that property and its owner.
In other words, the landowner has the right to retain spring water subject to land ownership as private water as they see fit. They may use this water themselves or grant another person the right to use water from the source. Additionally, based on their property rights, they have the authority to file a lawsuit to have the source removed.
Pursuant to Article 756/2 of the Turkish Civil Code No. 4721, which states that “Rights pertaining to water sources located on another person’s land shall be registered in the land registry as an easement,” a water source right may be established only with the landowner’s consent and through an official deed to be recorded in the land title deed.
Similarly, Article 837 of the Turkish Civil Code No. 4721 contains the following provision: “An easement right regarding a water source located on another person’s land obligates the owner of that land to tolerate the drawing and discharge of water. Unless otherwise agreed, this right may be transferred to another party and passes to heirs. If the water source right is of an independent nature and has existed for at least 30 years, it may be registered in the land registry as a separate property.”
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Pursuant to the provision in the article, a water source easement may be established directly in the name of an individual, or it may be decided to transfer it to others. When established as an independent and permanent right, it may also be registered in the land registry as a separate entry. Although there is no explicit provision in the law regarding the acquisition of the water rights, it is accepted that the provisions regarding the acquisition of real property under Article 780 of the Turkish Civil Code (Art. 704/2) apply, in accordance with the provisions governing the acquisition of other easements tied to ownership. In this case, the registration of the water rights in the land registry can be secured through a formally executed contract.
In fact, the water subject to the right of water use as specified in Articles 756/2 and 837 of the Turkish Civil Code No. 4721 is private water; underground waters of a public nature are excluded from these provisions. Indeed, public waters cannot be classified as real property.
In light of the principles outlined above, regarding the specific case at hand, although the court decided to partially grant and partially dismiss the claim, the examination and investigations conducted by the court are insufficient to determine the applicable provisions. Consequently, the parties’ need for the water in question, the extent to which the wells in question affect one another, and whether the water level would return to its previous level if the defendant’s well were closed were decided without being determined by an expert report.
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For this reason, the court must first conduct an investigation, accompanied by experts in geology, science, and agriculture, to determine the parties’ water needs and to ascertain the extent to which the plaintiff’s water source has been affected by the well subsequently opened by the defendant (e.g., through pumping).
If there is sufficient water to meet the plaintiff’s needs, a water management system must be established to ensure the affected water is provided to the plaintiff. I f it is determined that the plaintiff’s well has dried up due to the well the defendant later dug, and the defendant’s well has been closed, it must be determined whether water will be insufficient if the defendant’s well is closed. If it is determined that water would not be insufficient, a water extraction device should be established to draw water from the defendant’s source and to meet the plaintiff’s unmet needs, thereby facilitating water supply.
It was deemed inappropriate to issue a written judgment based on an incomplete investigation without considering the aforementioned matters; therefore, the decision was overturned.
Result:
For the reasons explained above, on February 16, 2015, by unanimous vote, the court accepted the defendant’s counsel’s objections and ruled to REVERSE the judgment; to refund the deposited amount to the depositor if requested; and to order that the correction be made within 15 days of the decision’s service, with the method of correction to be determined. (¤¤)