[통로방해배제(본소),경계선확인등(반소)][집14(3)민,003]
Cases where it cannot be deemed that the requirements for acquiring easement have been met;
Even if there has been long passed through a certain place without the establishment of a passage, or the owner of the land: Provided, That even if there has been an implied passage through a neighboring part of land, such fact alone cannot be acquired, and when acquiring servitude under this Article, the owner of the dominant land has entered into a contract for the period stipulated in Article 235 of the Civil Code.
Article 294 of the Civil Act, Article 245 of the Civil Act
Plaintiff (Attorney Jeong-sung et al., Counsel for plaintiff-appellant)
Defendant (Attorney Kim Jong-hwan, Counsel for defendant-appellant)
Gwangju District Court Decision 65Na252, 256 delivered on October 12, 1965
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
We examine the grounds of appeal by the Plaintiff’s attorney.
(1) Examining the statement of each witness in the lawsuit, there are parts the same as the statement pointed out at the place of the lawsuit, and there are parts the same as the theory of the lawsuit in the inspection protocol. However, the judgment of the court below does not judge that there was no use of the traffic area, such as the passage of harsh people. However, since the establishment of traffic area is an illegitimate purpose, each of the evidence parts such as the statement at the place of the lawsuit does not conflict with the judgment of the court below. There is no argument on this point.
(2) Even if a certain place without a passage has long passed through a certain place without a passage, or the owner of the land has impliedly passed through the passage of a part of the adjoining land, such fact alone cannot acquire a servitude. In acquiring a servitude under Article 294 of the Civil Act, the owner of the dominant land has to have continued the objective situation in which the owner of the dominant land has opened a passage on the dominant estate and used it at the time on the dominant estate under Article 245 of the Civil Act. In this case, it cannot be deemed that the plaintiff met the requirements for acquiring such easement, and therefore the judgment of the court below which rejected the plaintiff's above assertion is justified.
(3) Based on legitimate evidence, the court below recognized the fact that there was a discharge pipe on the land in the dispute of this case and about five years prior to the removal of the discharge pipe. However, this is merely an ordinary judgment on the establishment of a regional area, and therefore it is not necessary to examine and determine whether there is a need to install a discharge pipe.
There is no error of incomplete deliberation or lack of reason in the judgment below.
Therefore, it is so decided as per Disposition by the assent of all participating Justices.
Supreme Court Judge Lee Young-sub (Presiding Judge)