Supreme Court of Turkey
14th Civil Chamber
Main Case No.: 2013/8111
Decision No.: 2013/12750
Date of Decision: October 3, 2013
TRANSFER OF SPRING WATER PURSUANT TO THE PROTOCOL – NECESSITY OF MEASURING WATER FLOW RATE – EXCESS WATER MAY BE USED BY THE DEFENDANT VILLAGE TO THE EXTENT OF ITS NEEDS – VIOLATION OF THE JUDGMENT
SUMMARY:
The plaintiff, M… Villa ge, stated that the spring water they have been using on the plateau since ancient times was transferred by the defendant A… Village to the other defendant, C… Village, in accordance with the protocol, and that C… Villa ge had conducted excavations to obtain the water in question. The plaintiff requested that the defendants prevent interference with the water.
The Water Court ruled that, at least during that period (August–September), an on-site inspection should be conducted by an expert panel (comprising a geologist, an agricultural expert, and a scientist) in a neutral setting, and the experts should be heard on-site; or, alternatively, the priority rights of the parties in the case should be determined, the flow rate of the water should be measured, and the parties’ water needs should be established based on scientific data; the designation of water sources on the plateau or highland that meet the needs of the local people and animals as priority rights, and, if there is excess water, allowing the defendant village to benefit from it to the extent of its needs, and that a decision should be made accordingly.
It was deemed incorrect to issue a ruling based on incomplete investigation and research without considering the aforementioned matters, and for this reason, the decision had to be overturned.
(Turkish Civil Code Art. 756) (Turkish Penal Code Arts. 1, 2, 3, 4, 5, 6)
Litigation process: The lawsuit filed against the defendant by the plaintiff’s attorney on August 18, 2004, regarding the request to prevent water cuts, was dismissed on the hearing date; On November 27, 2012, upon the plaintiff’s attorney’s request, the Supreme Court reviewed the case; however, in a timely manner, apparently after reviewing all documents in the file, it decided to accept the appeal petition and:
Decision: The plaintiff, M… Vill age, stated that the spring water they had been using on the plateau since ancient times had been transferred to the other defendant, C… Village, by the defendant A… Vi llage pursuant to a protocol, and that the defendant C… Village was conducting excavation work to obtain the water in question, and that the defendants’ interference with the water must be prevented.
Defendants A… Vi llage and Ç… Vil lage objected to the dismissal of the case, arguing that the use of the water in question had been assigned to Ç… Village for a period of 49 years under a protocol signed between the two villages on September 8, 2003; however, they contended that if the annulment of this protocol were sought, the administrative court would have jurisdiction, and that the water in question belonged to their own villages.
The court ruled to dismiss the case.
The plaintiff appealed this decision.
According to Article 756 of the Turkish Civil Code, springs are an inseparable part of the land, and ownership of them can only be acquired together with ownership of the land from which they originate.
True spring water originates from an underground aquifer. The water may emerge from a single point or an area; this area is called the spring area. A spring is the natural discharge of groundwater to the earth’s surface.
If the flow rate of the spring water exceeds the boundaries of the land from which it naturally emerges, or if excess water remains after the owner’s needs are met, it is considered public water use, and neighbors may also benefit from it.
In practice, a spring is defined as follows: If groundwater has not entered the soil through natural means, such as drainage; and if the water is extracted by human means—not through drainage or a well—it is referred to by its name. Water extracted in this manner is considered groundwater.
Groundwater is one of the waters belonging to the public interest. Owning a water source does not imply ownership of the groundwater beneath it (Turkish Civil Code, Art. 756/3).
A person who does not have sufficient water on their own property for their own needs, or who is forced to bear the excessive cost of obtaining such water, must use the groundwater on the neighboring property. This is explicitly stated in the relevant regulation (Groundwater Law No. 167, Articles 1-6).
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In a specific case, the court, during its on-site inspection on June 4, 2012, determined that no agricultural expert was present during the inspection, the flow rate of the water was not measured by a geologist, and the water needs of the people and animals on the plateau were not determined.
I n this situation, the water court should have ordered, at the very least during that period (August–September), an on-site inspection by a panel of experts (geologist, agricultural expert, and scientist) in a neutral setting, and the experts’ opinions should have been heard on-site, or the priority rights of the parties in the case should have been determined; existing water sources should be measured for flow rate, the parties’ water needs should be determined based on scientific data, and water sources on the plateau that meet the needs of the local people and animals should be recognized as having priority rights; if there is an abundance of water, a decision should be made based on the outcome, taking into account that the defendant village may utilize as much water as it requires.
It was determined that it was inappropriate to issue a written judgment without conducting a thorough review and investigation and without taking the relevant matters into account; therefore, the decision was overturned.
Result:
For the reasons explained above, it was decided by unanimous vote on October 3, 2013, to accept the plaintiff’s counsel’s objections and to REVERSE the judgment, and to order the refund of the advance payment deposited upon request to the depositor. (¤¤)