T.C. SUPREME
14.Legal Department

Basis: 2014/3367
Verdict: 2015/1576
Decision Date: 16.02.2015

REQUEST FOR PREVENTION OF WATER ELATION-NEEDS OF THE PARTIES TO WATER THE RATE AT WHICH THE WELLS AFFECT EACH OTHER WHETHER THE WATER WILL RISE TO ITS FORMER LEVEL IN CASE OF CLOSURE OF THE DEFENDANT’S WELL-INCOMPLETE EXAMINATION-THE NEED FOR A BREAKDOWN OF THE PROVISION

Summary: the court should determine the water needs of the parties by making a discovery with the help of experts in geology, science and agriculture during the period when the water was minimal, and the extent to which the source of the plaintiff was affected by the well that was subsequently drilled by the defendant (pumping v.b. if the well belonging to the plaintiff is affected but has enough water to meet the plaintiff’s needs, a water regime should be established to provide the amount of water affected if there is not enough water to meet the plaintiff’s needs, if it is understood that the well belonging to the plaintiff is dry due to the well that the defendant, if it is understood that it will not become obsolete, a water supply system should be established to obtain water from the defendant’s source as much as the plaintiff’s unmet need and a provision suitable for execution should be established.

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

Case: at the end of the hearing with the petition filed against the defendants on the day 3.7.2012, the Court of Cassation will examine the verdict of 2.7.2013 on the acceptance of the case, and after the decision was made to accept the appeal petition, which is understood to be in its time by the:

Verdict: plaintiff, owner of 224 parcels of real estate located in the water supply of the defendant 746 parcels of Real Estate opened due to the borehole water decreased by stating that the defendant wanted to prevent elatmasının water. The defendant’s attorney argued that the defendant’s well was licensed and did not affect the plaintiff’s well, arguing that the case was dismissed.

The court decided to partially accept the case, reducing the flow rate of the water well belonging to the defendant in parcel 746 from 4 lt per second to 2 lt per second, thus preventing the defendant’s intervention in water, and rejecting the plaintiffs ‘ demands for the establishment of a water regime.

The defendant’s attorney and the plaintiff’s attorney appealed the sentence.

718 Of The Turkish Civil Code No. 4721. 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.

756 of the Turkish Civil Code No. 4721, which is organized in parallel with the provision of this article. in accordance with the article; “resources, the land is an integral part of the ownership of them can only be gained with the ownership of the land they boil. The right to resources on someone else’s land is registered in the land registry as an easement right. Groundwater is public-interest water. Being an Arza malik does not result in being an owner of the groundwater beneath it. The provisions of the special law on the way and extent of land owners ‘ use of ground water 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, 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. In addition, spring water from land not registered (e.g. pasture, Forest v b.) 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 Of The Turkish Civil Code No. 4721. in accordance with the article “the right on the resources on someone else’s land shall be registered in the land registry as an easement right.”in accordance with the provision of the right to source can only be established with the consent of the title deed owner with the official deed to be held in the deed.

Similarly, Turkish Civil Code No. 4721 837. “the right of easement on the resource on someone else’s land obliges the owner of this land to endure the taking and draining of water. This right may be transferred to someone else and passed on to the heir, unless otherwise agreed. If the resource right is established for at least 30 years of independent nature, it can be registered as immovable in the land registry. arranged in the form of”.

As stated in the article, the resource easement can be established directly depending on the person or it can be decided to transfer it to others. 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 clear provision in the law on the acquisition of the right to source, 780 of the Turkish Civil Code in accordance with the provisions of the acquisition of other easements related to goods. it is accepted that the provisions relating to acquisition of immovable property shall be applied in comparison with the article (m.704/2). In this case, it is possible to gain the registration of the resource right to the land registry with the contract to be arranged in a formal manner.

In fact, 756/2 and 837 of the Turkish Civil Code numbered 4721. 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.

In the light of the principles described above, as regards the concrete event, the court’s investigations and investigations are not sufficient to establish a verdict even if the case has been partially accepted and partially rejected. As such, the needs of the parties to the water subject to the lawsuit, the rate at which the Wells subject to the lawsuit affect each other, whether the water will come to its former level in case of closure of the defendant’s well has been decided without being determined by the expert report.

For this reason, the court should first determine the water needs of the parties by making a discovery with the help of geology, science and agricultural experts during the period when the water was minimal, and the extent to which the source of the plaintiff was affected by the well that was subsequently drilled by the defendant (pumping v.b. if the well belonging to the plaintiff is affected but has enough water to meet the plaintiff’s needs, a water regime should be established to provide the amount of water affected if there is not enough water to meet the plaintiff’s needs, if it is understood that the well belonging to the plaintiff is dry due to the well that the defendant, if it is understood that it will not become obsolete, a water supply system should be established to obtain water from the defendant’s source as much as the plaintiff’s unmet need and a provision suitable for execution should be established.

It was not considered right to establish a written judgment without taking into consideration the aspects mentioned, and therefore the decision had to be overturned.

Conclusion: due to the reasons described above, it was decided by unanimous decision on 16.02.2015 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 if requested, and to correct the decision for 15 days from the notification of the decision.