TC SUPREME
14th Civil Chamber
Main File: 2013/6642
Decision: 2013/9428
Date of Decision: June 20, 2013
During the period when the duration of the intervention and the amount of water are at their lowest, the site inspection must be conducted by a panel of experts including an agricultural specialist and a geologist; an incomplete inspection constitutes a violation of the relevant provision.
SUMMARY:
In a specific case, to determine the water needs of the plaintiffs and defendants based on scientific data during the period when water is at its lowest level, to investigate whether the defendants meet their needs from another source, and to establish a water regime taking into account that the parties had previously used the water in question, an expert panel consisting of an agricultural expert and a geological engineer must be formed at the site. Ruling based on an incomplete investigation and research without considering the aforementioned matters was deemed incorrect, and therefore the decision must be reversed.
(Civil Code Art. 1, 2, 3, 4, 5, 6) (Turkish Civil Code Art. 756)
Case: Following the conclusion of the hearing regarding the plaintiffs’ petition filed on January 19, 2010, seeking a right of water retention and an injunction against the defendants; after the decision to accept Defendant LE’s appeal petition was rendered, the review of the Supreme Court’s decision dated December 12, 2012, the examination of the case file and all documents therein, and the determination that it is necessary:
Decision: The plaintiffs stated that they had transported water from their property, Plot No. 628, to the defendants’ property, Plot No. 744, by installing a pump and pipes from the storage facility, and requested that the defendants’ interference with the water and the property be stopped.
The defendants argued that the water in question had been extracted by their fathers and uncles sixty years ago and that they had used it jointly, and they sought to justify the dismissal of the case. T he court decided to accept the case. The decision was appealed by the defendant Lokman Engel.
1-)
Based on the evidence gathered for the hearing and the contents of the file, it was necessary to rule that the defendant’s other objections, falling outside the scope of the following paragraph, be dismissed.
2 -) According to Article 756 of the Turkish Civil Code No. 4721, 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. Natural spring water originates from an underground aquifer. The water may emerge from a single point or an area; this area is referred to as the spring area. A spring is the natural emergence 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 have been met, general water use is permitted, and neighbors may also benefit from it.
In practice, a spring is defined as follows: If groundwater has not reached the surface through natural means, such as drainage; a spring refers to water extracted by human means, not through drainage or wells.
Groundwater is one of the waters belonging to the public interest. Owning a water source does not imply ownership of the underlying groundwater (Turkish Civil Code, Art. 756/3).
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A person who does not have sufficient water on their own property to meet their needs, or who is forced to bear the excessive cost of obtaining such water, must use the groundwater on the neighboring property. (As stipulated in Articles 1–6 of the Groundwater Law No. 167.)
In the specific example, when the flow rate of the water in question (0.8 L/s) is considered, this constitutes general water. On the other hand, while prioritizing and protecting prior and ancient rights, everyone may benefit from public waters in proportion to their own needs. The local expert stated that the water in question emerged naturally between 1950 and 1955 and has been used by the residents of both parties through mutual agreement for many years.
In this situation, during periods of water scarcity, an expert panel consisting of an agricultural specialist and a geologist at the site should determine the status of the plaintiffs’ and defendants’ water needs in accordance with scientific data, ascertain whether the defendants’ needs are met from another source, and establish a water regime taking into account that both parties have been using the water in question from the outset.
It was deemed inappropriate to issue a written decision based on insufficient investigation and research without considering the aforementioned matters; therefore, the decision was overturned.
Result:
On June 20, 2013, by unanimous vote, it was decided to reject the defendant’s other objections for the reasons stated in paragraph (1) above, to uphold the objections and overturn the decision for the reasons explained in paragraph (2), and to order the return of the advance deposit to the depositor if requested. (¤¤)