T.C. SUPREME COURT
14.law office

Base: 2014/3367
Decision: 2015/1576
Date of Decision: 16.02.2015

REQUEST FOR PREVENTION OF WATER ELIMINATION – THE NEEDS OF THE PARTIES FOR WATER THE RATE OF INFLUENCE OF WELLS ON EACH OTHER WHETHER THE WATER WILL RETURN TO ITS FORMER LEVEL IF THE DEFENDANT’S WELL IS CLOSED – INCOMPLETE EXAMINATION – THE NEED TO VIOLATE THE PROVISION

ABSTRACT: During the period when the waters are minimal, the parties’ needs for water should first be determined by conducting explorations accompanied by geology, science and agriculture experts, and the plaintiff’s source should be affected by the well drilled later by the defendant to what extent (pumping v.b. if the plaintiff’s well is affected but has enough water to meet the plaintiff’s need, the water regime should be established to ensure that the plaintiff is given as much water as this affected rate, if it is understood that the plaintiff’s well is dry due to the well that the defendant subsequently drilled, if the defendant’s well is closed, it should be determined whether the water will become obsolete if the plaintiff’s well is closed, in case it is understood that it will not become obsolete, a provision favorable for execution should be established by creating a water intake device for removing as much water from the defendant’s source as the plaintiff’s unmet need.

(4721 Pp. K. m. 704, 718, 756, 780, 837)

Case: At the end of the hearing held by the deputy plaintiff with the petition filed against the defendants on 3.7.2012; the decision to accept the appeal petition, which is understood to have been requested by the deputy defendants to examine the judgment of 2.7.2013 given by the Supreme Court, was considered necessary by examining the file and all the documents in it after the decision was made to accept the appeal petition:

Decision: The plaintiff stated that the water supply in the immovable property numbered 224 parcels owned by the defendant decreased due to the drilling well drilled by the defendant in the immovable property numbered 746 parcels and asked that the defendant be prevented from sifting into the water. The defendant’s deputy argued for the rejection of the case by claiming that the well belonging to the defendant was licensed and did not affect the plaintiff’s well.

The court decided to partially accept the case, reduce the pump power of the defendant’s water well located in parcel 746 from 4 liters per second to 2 liters per second and deny the defendant’s requests for the men’s intervention in the water in this way, the plaintiffs’ stay, and the establishment of a water regime.

The decision was appealed by the defendant’s deputy and the plaintiff’s deputy.

718 of the Turkish Civil Code No. 4721. according to the article; property on land covers the air above it and the supply layers below it to the extent that it is useful to use it. This property also includes structures, plants and resources, subject to legal restrictions.

756 of the Turkish Civil Code No. 4721, which is regulated in parallel with the provision of this article. according to the article; “Resources are an integral part of the land, and their ownership can only be acquired together with the ownership of the land on which they boil. The right to resources located on someone else’s land is registered in the land registry as an easement right. Groundwater is one of the waters belonging to the public interest. Being the owner of arza does not result in being the owner of the underground waters underneath it. The provisions of the special law on the form and measure of use of groundwater by land owners are reserved.”

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 and the groundwater which will be in a special course and private ownership water continuously, and in an artificial way or DEC of the earth as well as the water resource quality wins (Gursoy/Eren/Cansel Turkish property law, Ankara, 1978, p.618). In addition, the source can no longer be the subject of private ownership if the benefit of the water coming out of the source is so abundant as to form a public stream. Again, the procedure for using water extracted from groundwater by artificial means, such as drilling, is also governed by the Groundwater law No. 167.

In other words, if the spring water has a flow rate that will exceed the limits of the land where it boils spontaneously, or if there is an excess after meeting the needs of the owner, the general water is accepted and the neighbors can also benefit. In addition, spring water is supplied from land that does not have a title deed (for example, pasture, forest, etc.) if it comes out, it is general water regardless of the flow rate of the water. In this case, everyone can benefit as much as they need by not violating the ancient and priority right.

Private water is the water that comes out of the registered real estate and is only sufficient to meet the personal needs of that real estate and its owner.

In other words, the rightful owner has the right to save the spring water subject to the ownership of the land on private water as he wishes. He can use this water himself, as well as grant an easement to someone else to use the water at its source. It is also authorized to file lawsuits for the elimination of elat, if there is an elat to the resource based on the right of ownership.

756/2 of the Turkish Civil Code No. 4721. according to the article “The right to resources located on someone else’s land is registered in the land registry as an easement right.” in accordance with the provision, the right of resource can be established only with the consent of the landowner with an official deed to be issued in the title deed.

Similarly, Article 837 of the Turkish Civil Code No. 4721. the article also states that “The easement right on the resource located on someone else’s land obliges the owner of this land to endure the receipt and discharge of water. This right can be transferred to someone else and passed on to the heir, unless otherwise agreed. The right to resource may be registered as immovable in the land registry if it is of an independent nature and has been established for at least 30 years. it is arranged as ”.

As stated in the provision of the article, the resource easement can be established directly depending on the person, as well as its transfer to others can be decided. When it is established as an independent and permanent right, it is also possible to register it on a separate page in the land registry. Although there is no explicit provision in the law on the acquisition of the right of resource, 780 of the Turkish Civil Code in accordance with the provisions on the acquisition of other easements related to the property. it is accepted that the provisions on the acquisition of real estate using the article by comparison will be applied (m.704/2). In this case, it is possible to obtain the right to source registration in the land registry with a contract to be issued in an official manner.

In fact, 756/2 and 837 of the Turkish Civil Code No. 4721. the water that may be subject to the resource easement specified in the article is private water, and groundwater of a general water nature is excluded from these regulations. As a matter of fact, general waters are unacceptable within the scope of real estate ownership.

As for the concrete case in the light of the principles described above, although it has been decided to partially accept and partially reject the case, the examination and research conducted by the court are not sufficient to establish a verdict. As a matter of fact, the parties’ needs for the water subject to the case, the rate of influence of the wells subject to the case on each other, and whether the water will return to its former level if the defendant’s well is closed were decided without being determined by an expert report.

For this reason, during the period when the waters are minimal, the court should first determine the needs of the parties for water by conducting an exploration accompanied by geology, science and agriculture experts, and the proportion of the plaintiff’s resource affected by the well drilled later by the defendant (pumping v.b. if the plaintiff’s well is affected but has enough water to meet the plaintiff’s need, the water regime should be established to ensure that the plaintiff is given as much water as this affected rate, if it is understood that the plaintiff’s well is dry due to the well that the defendant subsequently drilled, if the defendant’s well is closed, it should be determined whether the water will become obsolete if the plaintiff’s well is closed, in case it is understood that it will not become obsolete, a provision favorable for execution should be established by creating a water intake device for removing as much water from the defendant’s source as the plaintiff’s unmet need.

Without considering the mentioned aspects, it was not considered correct to make a provision in writing with incomplete review, so the decision had to be overturned.

Conclusion: For the reasons described above, it was decided unanimously on 16.02.2015 that the defendant’s attorney would OVERTURN the provision by accepting appeals, that the fee deposited in advance would be returned to the depositor if requested, and that the decision would be corrected within 15 days from the notification of the decision, with the path open for correction. (¤¤)

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