T.C. SUPREME
14.Legal Department

Basis: 2015/9154
Verdict: 2015/9176
Decision Date: 19.10.2015

THE CASE FOR PREVENTION OF ELATMA – ACCORDING TO EXPERT REPORTS AND WITNESS STATEMENTS, THE PLAINTIFF DID NOT USE WATER TO ENGAGE IN AGRICULTURAL ACTIVITIES IN HIS REAL ESTATE-IMPAIRMENT OF THE PROVISION

Summary: although it has been claimed that the plaintiff’s lands have been irrigated since the source in question, it is understood that the plaintiff did not use water to engage in agricultural activities in his real estate, and that the water supply was lacking to meet the amount of water needed by the developing season of the cultivated plants adapted to the region. While the court should have decided to dismiss the case, it was not considered right to establish a verdict with a misleading assessment, and it was necessary to have the verdict overturned. The verdict has been overturned.

(4721 P. K. m. 718, 756, 837)

Case and decision: at the end of the hearing held by the plaintiffs ‘ attorney against the defendant on 23.11.2010, the decision of the Court of Cassation on the 23.12.2014 day sentence of the case was partially accepted and partially rejected by the defendant’s attorney after the decision was made to accept the appeal petition, which is understood to be:

The case is related to the Prevention of water contamination and the request to stay.

The plaintiff asked for the Prevention of elatma and the Kal of pipes by stating that the defendant party had been laying pipes in the water coming out of the immovable no.165 island 13 parcel, where the stakeholder was located, by doing excavations without permission, that his real estate had lost its watery land feature and that the trees had dried up.

The defendant village head office argued that the water in the case was used as drinking water and that the real estate where the source and pipes were found did not belong to the plaintiff and rejected the case.

According to the scientific expert report obtained as a result of the discovery made in the area, the court decided to partially accept the case despite the fact that the water subject of the case and the place where the work was done remain in the immovable numbered 165 ada 8 parcel registered in the name of the Treasury, to prevent the elatmasının of the defendant village legal entity to the water source
The defendant’s attorney appealed the sentence.

718 Of The Turkish Civil Code. in accordance with the article, the property on the land covers the air above it and the supply layers below it to the extent that it is useful in its use. The scope of this property includes buildings, plants and resources, without prejudice to legal limitations.

718 Of The Turkish Civil Code. material and 756/2. the sources mentioned in the article are different from groundwater. Source, origin of the Earth, which will be in private ownership continuously and groundwater course and a special water and or water resource quality as well as the Earth in an artificial way Dec wins (Gursoy/Eren/Cansel Turkish property law, Ankara, 1978, p.618). Furthermore, the source may no longer be subject to private ownership if the benefit of the water from the source becomes abundant enough to form a public stream. Again, the procedure for using water extracted by artificial means such as drilling from groundwater is also subject to the groundwater Law No. 167.

In other words, if the flow of spring water will exceed the boundaries of the land where it is boiling spontaneously, or if there is more after meeting the needs of the owner, general water is accepted and the neighbors can also benefit. Besides, if spring water comes out of land that is not registered (e.g. pasture, forest, etc.), it is general water regardless of the flow of water. This sudan is ancient and everyone can benefit in the rate of need by not violating the right of priority.

Private water is the water that comes out of the real estate with the title deed and is sufficient only to meet the personal needs of that real estate and the owner.

Spring water, subject to the ownership of the land, in other words, on private water, the rightful owner has the power to save as he wishes. He may use this water himself or grant an easement to another person to use the water at his source. In addition, if there is an confiscation of the source based on the right of ownership, it is also authorized to file lawsuits for the removal of the confiscation.

756/2 and 837 of the Turkish Civil Code. the water which may be subject to the source easement mentioned in the article is special water and the groundwater which is of General water nature is outside these regulations. As a matter of fact, General waters cannot be accepted within the scope of immovable property.

As for the concrete incident in the light of the principles described above; according to the scope of the file and the evidence collected, the water source in the case remains within the land of the Treasury and is of General water nature. Everyone can benefit from the general waters as much as they need by ensuring that the right of priority is not violated. However, the defendant village headman brought the water to the village by laying pipes to meet the drinking water needs of the village. It is clear that the drinking water requirement of the village takes precedence over the land irrigation of the plaintiff. The plaintiff’s land has been claimed to have been irrigated since the source of the case, but according to the reports of discovery and expert witnesses, the statements of local experts and witnesses heard, the plaintiff did not use the water for agricultural activities in his real estate, the water supply was lacking to meet the amount of water needed by the, it is understood that the trees benefit from groundwater due to their roots going deep, nor does the claimant need water.

In this case, while the court should have decided to dismiss the case, it was not right to establish a written judgment with a misleading assessment, and it was necessary to have the decision overturned.

Conclusion: due to the reasons described above, a unanimous decision was made on 19.10.2015 to annul the provision by the acceptance of the appeal appeals of the defendant’s attorney, to return the fee paid in advance to the Depositor upon request, with the way to correct the decision within 15 days of the notification of the decision.