T.C. SUPREME COURT
14.law office

Base: 2013/6642
Decision: 2013/9428
Date of Decision: 20.06.2013

STAY PROMPT INTERVENTION – CONDUCTING AN EXPLORATION WITH AN EXPERT TEAM CONSISTING OF AN AGRICULTURAL EXPERT AND A GEOLOGICAL ENGINEER IN THE NEIGHBORHOOD DURING THE PERIOD WHEN THE WATERS ARE MINIMAL – INCOMPLETE INSPECTION – WHERE THE PROVISION IS VIOLATED

SUMMARY: in a concrete case of water, at least during that period, agriculture and geological witnesses at the scene of the discovery by the engineer where it is located with the execution of a commission of experts, the plaintiff and the defendants water requirement of the situation, determined in accordance with scientific data must be maintained to agricultural experts, which meets the need of the defendants from other sources must be investigated, since the parties involved in the case before considering the use of water the water regime should be established. It was not considered correct to establish a verdict with incomplete examination and research without taking into account the mentioned aspects, so the decision had to be overturned.

(167 P. K. m. 1, 2, 3, 4, 5, 6) (4721 P. K. m. 756)

Case: At the end of the hearing held by the deputy plaintiffs on the request to prevent and stay in the water with a petition filed against the defendants on 19.1.2010: examination of the judgment of 12.12.2012 issued on the acceptance of the case by the Supreme Court defendant L. E. after the decision was made to accept the appeal petition, which was apparently requested by the court, the file and all the papers in it were examined and considered necessary:

Decision: The plaintiffs stated that the defendants took the water in their immovable property numbered 628 parcels from the warehouse by motor and laying pipes to their immovable property numbered 744 parcels and asked that the defendants’ interventions in the water and immovable be eliminated by staying.

The defendants defended the rejection of the case by claiming that the water subject to the lawsuit was extracted by their fathers and uncles sixty years ago and that they used it together. The court has decided to accept the case. The defendant Lokman Engel appealed the verdict.

1-) According to the evidence collected during the trial and the contents of the file, it was necessary to decide on the rejection of the defendant’s other appeals that fell outside the scope of the following paragraph.

2-) Article 756 of the Turkish Civil Code No. 4721. according to the article; Resources are an integral part of the land, and it is stated that their ownership can only be acquired together with the ownership of the land on which they originate. The water of the actual source comes from an aquifer. The water outlet can be from a point or an area. This area is called the resource area. The source is the natural occurrence of groundwater on the earth.

If the spring water is at 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 benefit.

In practice, the source is defined as <the place where the upper level of groundwater cuts off the surface of the earth>. Groundwater has not come out of the natural way to the earth, drainage, etc. if it has been removed by roads, not as a source, but as a drain or well, etc. he is referred to by names. Waters extracted by human hands in this way are considered groundwater.

Groundwater is one of the waters belonging to the public interest. Being the owner of the land, being the owner of the groundwater beneath it does not lead to the result of being the owner (T.M.K.md.756/3).

A person who does not have enough water for his useful needs on his land or who incurs an exorbitant cost to obtain this water will benefit from groundwater in the neighboring land 20. it is specified in the statute referred to in article (Groundwater Law No. 167 1-6. substance).

In a concrete case, when the water flow rate of the subject of the case is taken into account (0.8 lt/sec), it is of a general water nature. On the other hand, everyone can benefit from public waters at the rate of their beneficial needs by protecting their priority and ancient rights. The local expert stated that the water subject to the case came out spontaneously in 1950-1955 and was used by the muris of both parties by agreement for many years.

In this case, during the period when the waters are minimal, the need for water of plaintiffs and defendants should be determined by the agricultural expert in accordance with scientific data, whether the defendants meet the needs of another source should be investigated, the water regime should be established taking into account that the parties have been using the water subject to the case since time immemorial, with the execution of exploration with an expert panel with an agricultural expert and a geological engineer at the scene.

It was not considered correct to make a decision in writing with incomplete examination and research without taking into account the mentioned aspects, so the decision had to be overturned.

Conclusion: It was decided unanimously on 20.06.2013 to reject the defendant’s other appeals for the reasons written in paragraph (1) above, to overturn the provision by accepting appeals for the reasons described in paragraph (2), to return the deposited fee to the depositor if requested, on 20.06.2013. (¤¤)

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