TC SUPREME
14th Civil Chamber
Main Case No.: 2015/9154
Decision No.: 9176/2015
Date of Decision: October 19, 2015
CASE REGARDING THE PROHIBITION OF WATER USE – ACCORDING TO EXPERT REPORTS AND WITNESS STATEMENTS, THE PLAINTIFF IS NOT USING WATER FOR AGRICULTURAL ACTIVITIES ON HIS OWN PROPERTY – VIOLATION OF THE RELEVANT PROVISION
SUMMARY:
In the action for injunction, regarding the plaintiff’s request to prevent the use of water on the land, based on the findings from the site inspection, expert reports, witness statements, the hearing of experts, and on-site examinations, it was determined that the water used for agricultural activities on the plaintiff’s property must compensate for the water deficiency necessary for the growth of plants adapted to the region and season. Although the court decided to dismiss the case, it was considered that rendering a judgment based on an erroneous assessment was incorrect and that the decision should be reversed. It was decided to reverse the judgment.
(Turkish Civil Code Art. 718, 756, 837)
Case and decision: The plaintiff, through his attorney’s petition dated November 23, 2010, filed a lawsuit against the defendant seeking, at the conclusion of the intervention, a hearing date for the claim regarding water retention and prevention; a ruling to partially grant and partially dismiss the claim; and, upon the attorney’s request dated December 23, 2014, for the defendant’s case to be decided by the High Court, but in a timely manner, with the decision regarding the acceptance of the appeal petition to be resolved through a review of all documents in the file; and:
…
T he case concerns a request to prevent water damage and stop flooding.
The plaintiff claimed that water from the 13 parcels comprising 165 islands where the property in question is located was being transported via pipes as a result of the defendant’s unauthorized excavation work, that the property had lost its ability to remain above water, and that the trees had dried up, and requested the removal of the pipes and the prevention of flooding.
The defendant village council argued that the water in question is used as drinking water, and that the property where the water source and pipes are located does not belong to the plaintiff; the case was dismissed.
According to the report, following an on-site inspection based on the scientific findings of the experts, in the case regarding the Treasury and the water at the worksite, the property registered under parcel number 8, 165, the court decided to reject the plaintiff’s claims regarding rights over the land where the water line is located, in conjunction with the expert report and the diagram specified in (A), as well as the defendant’s letter regarding the water source, despite the transfer of the property registered under the name of the defendant’s village council. The decision was appealed
by the defendant’s attorney.
Pursuant to Article 718 of the Turkish Civil Code, ownership of land encompasses the air above it and the water sources beneath it to the extent that their use is beneficial. This scope of ownership also includes structures, facilities, and sources, subject to legal limitations.
…
The sources referred to in Articles 718 and 756/2 of the Turkish Civil Code are distinct from groundwater. Th e source, origin, and quality of groundwater—as well as water obtained through artificial means or groundwater extraction—cannot be the subject of private ownership (Gursoy/Eren/Cansel, Turkish Property Law, Ankara, 1978, p. 618). Furthermore, if the flow of water from the source is abundant enough to form a public watercourse, the source can no longer be subject to private ownership. Similarly, the procedure for using water extracted from groundwater through artificial means, such as drilling, is regulated by Article 167 of the Groundwater Law.
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. Additionally, if spring water originates from unregistered land (such as pasture, forest, etc.), it is considered public water 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.
On the other hand, private water is water that flows from a registered property and is sufficient to meet only 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 spring. Additionally, based on the right of ownership, the owner also has the authority to file a lawsuit for the removal of the spring.
.
The water that may be subject to the right of spring use as stipulated in Articles 756/2 and 837 of the Turkish Civil Code is private water; underground waters of a general nature are excluded from these provisions. Indeed, general waters cannot be classified as real property.
In light of the principles outlined above, regarding the specific case at hand: based on the scope of the case file and the evidence gathered, the water source in question is located on public land and constitutes a public water source. Everyone may use public water resources to the extent of their need without infringing upon the prior right of others. However, the defendant, the village headman, laid pipes to bring water to the village to meet the village’s drinking water needs.
It is clear that the village’s drinking water needs take precedence over the plaintiff’s land irrigation. Although the plaintiff’s claim was made at a distance from the source, based on the site inspection, expert reports, witness statements, and on-site hearings, the provision of water used for agricultural activities on the plaintiff’s land, the growth of plants adapted to the region’s seasonal conditions, meets the water needs of the grasslands and trees on the plaintiff’s property and maintains the vitality of the trees, the grasslands and trees being nourished by rainwater, the trees benefiting from groundwater due to their deep roots, and the plaintiff’s lack of need for water.
In this case, the court should have dismissed the case, as the issuance of a written judgment containing an erroneous assessment was not deemed proper, and the decision should have been overturned.
Result:
For the reasons explained above, on October 19, 2015, by unanimous vote, it was decided to overturn the decision upon acceptance of the defendant’s counsel’s objections, to refund the previously deposited amount to the depositor upon request, and to open the avenue for correcting the decision within 15 days from the date of its notification. (¤¤)