T.C. SUPREME COURT
14.law office

Base: 2013/8111
Decision: 2013/12750
Date of Decision: 03.10.2013

REQUEST TO PREVENT THEIR INTERVENTION – THE TRANSFER OF SPRING WATER BY PROTOCOL – THE NEED TO MEASURE THE FLOW RATE OF WATER – THE DEFENDANT CAN USE AS MUCH WATER AS THE VILLAGE NEEDS – VIOLATION OF THE PROVISION

SUMMARY: Plaintiff M… Village, defendant of the spring water they have used in the plateau since ancient times By the court of water, at least during that period (August-September) the board of expert witnesses (geologist, agriculture, and science), the discovery should be made by means of a neutral scene and heard at the scene of experts or priority rights of the parties in the case should be determined as ancient water, water flow rate should be measured, the water needs of the scientific data with the parties should be identified in the Highlands, or plateau that they met the needs of ancient humans and animals should be the first priority rights, if there is an excess of water, it should be decided according to the result, taking into account that the defendant’s village can benefit as much as it needs. It was not considered correct to establish a verdict with incomplete examination and research without taking into account the issues mentioned, so the decision had to be overturned.

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

Case: At the end of the hearing held by the plaintiff’s deputy on the request to prevent water elation with a petition filed against the defendants on 18.08.2004; the Supreme Court’s review of the 27.11.2012-day decision to dismiss the case was requested by the plaintiff’s village attorney, and after it was decided to accept the appeal petition, which is understood to be ongoing, the file and all the papers in it were examined and considered necessary:

Verdict: Plaintiff M… Village, defendant of the spring water they have used in the plateau since ancient times

Defendant A… The village and

The court decided to dismiss the case.

The decision was appealed by the deputy plaintiff.

756 of the Turkish Civil Code. 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 ground naturally, 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. The waters extracted by human hands in this way are considered to be groundwater.

Groundwater is one of the waters belonging to the public interest. Being the owner of the land, being the owner of the underground waters below it does not lead to the result (TMK. 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 mentioned in the article (Groundwater Law No. 167 1-6. substance).

In a concrete case; the court made a discovery at the scene on 04.06.2012, no agricultural expert was present at the discovery, the flow rate of water was not measured by the geological expert, and the needs of people and animals on the plateau for water were not determined.

In this case by the court of water, at least during that period (August-September) the board of expert witnesses (geologist, agriculture, and science), the discovery should be made by means of a neutral scene and heard at the scene of experts or priority rights of the parties in the case should be determined as ancient water, water flow rate should be measured, the water needs of the scientific data with the parties should be identified in the Highlands, or plateau that they met the needs of ancient humans and animals should be the first priority rights, if there is an excess of water, it should be decided according to the result, taking into account that the defendant’s village can benefit as much as it needs.

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

Conclusion: For the reasons described above, it was decided unanimously on 03.10.2013 that the decision to OVERTURN the decision by accepting the appeals of the plaintiff’s attorney and to return the advance payment to the depositor upon request would be overturned. (¤¤)

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