[토지인도청구사건][고집1973민(2), 382]
The case holding that the right to water use area was acquired by prescription
If a farmer of a monarched land who had been incorporated into a part of the site for 20 years and has continuously and openly acquired it from his/her maintenance for 20 years, and provided it to the monarched land, his/her acquisition or use of water was expressed, and the farmer of the monarched land acquired the right of water area by prescription in accordance with Article 294 and Article 245 of the Civil Act as to whether the land was incorporated into the site for the said maintenance.
Articles 294 and 245 of the Civil Act
Supreme Court Decision 65Da2305, 2306 Decided September 6, 1966 (Supreme Court Decision 2207Da 1433 delivered on July 21, 1970, Supreme Court Decision 70Da772, 773 delivered on July 21, 1970 (Supreme Court Decision 902Da 9022 delivered on September 3, 196, Supreme Court Decision 294Da354 delivered on September 6, 196)
Plaintiff
Defendant 1 and 24 others
Daejeon District Court of the first instance (65 Gohap1638 delivered on April 1, 200)
Supreme Court Decision 68Da65 Decided March 26, 1968, Supreme Court Decision 69Da560 Decided June 27, 1972
(1) Revocation of the original judgment shall be revoked.
(2) The plaintiff's claim is dismissed.
(3) The total costs of the lawsuit are assessed against the Plaintiff.
(1) The Defendants deliver to the Plaintiff the 197 Seocheon-gun, Yacheon-gun, Yacheon-gun, Yacheon-gu, the 1,049 square meters.
(2) The costs of lawsuit are assessed against the defendants and a declaration of provisional execution.
Preliminary Claim added by Party Members
(1) The Defendants jointly and severally pay to the Plaintiff KRW 94,200 and KRW 40,000 at the end of each year from December 31, 1967 to the completion of the delivery of land.
(2) The costs of lawsuit are assessed against the defendants and a declaration of provisional execution.
The same shall apply to the order.
1. The facts that the land written in the purport of the claim (hereinafter referred to as this case's land) was originally owned by the plaintiff, and the facts that the defendants occupied and used for the maintenance of this case's land do not conflict between the parties (after the confession that the defendants occupied the land as the maintenance of this case's land, the confession is cancelled, and this case's land is only managed by the Bobi repair fraternity, which is composed of the defendants except the defendant 2, and there is no fact that the defendants had occupied it. Thus, it is reasonable to view that the plaintiff was taken over from the maintenance that the members of the repair fraternity were managed by the repair fraternity and carried out a monet. Accordingly, the defendants' assertion against the defendants' own possession of this case's land except the defendant 2 is without merit, and the defendant 2 also is not allowed to revoke the confession because the confession is contrary to the truth and there is no evidence to acknowledge that the confession or the above mistake was caused).
2. (1) The Defendants asserted that this land was lawfully purchased on December 1, 1943 or legitimately expropriated it for the purpose of performing the construction project for the creation of the land owned by Ocheon-do as part of the second emergency expansion facility project plan of the 1943 Chocheon-si's Department of Shipbuilding at the time of a political party. Thus, the Defendants merely asserted that the Plaintiff is the owner of the land of this case and the Defendants are legally taking over the land from the maintenance of the original state. Thus, the Defendants asserted that this land is not owned by the original state of this case. Accordingly, the Defendants asserted that this land is consistent with Eul evidence Nos. 5-2 (official text), the lower court witness Nos. 1, 2, 3, 4, and 1 remanded, Nonparty 5, the second trial witness prior to the second return, Nonparty 6, 7, the lower court and the second trial witness of the non-party 8 after the second remand of this case. The Defendants' evidence No. 3 (Evidence evidence No. 8) cannot be accepted by the lower court's evidence No. 73).
(2) Even if the above assertion is not accepted, the Defendants asserted that they acquired the above land from 1945.4.1 to 20 years after the completion of the above maintenance work on the land owned by the Defendants, and that they acquired the ownership of the land or the right to use water on the land for 20 years. Thus, the Defendants asserted that they had acquired the ownership of the land or the right to use water on the land for 194.4 years since 1945 to 196, the above construction work on the above 4th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 1st of the 196th of the 196th of the 196th of the 1st of the 196th of the 1st of the 196th of the 1st of the 1st of the 196th of the 1st of the 194th of the 1st of the 196th of the 1st of the 1st of the 1st of the 3th of the 1st of the land.
Therefore, since April 1, 1945, the defendants acquired the land from the above maintenance and provided it to the joint owner of the said mony land, and reached the present time. Thus, it is obvious that the defendants did not have an intention to own the land at the time of acquisition or the present or present site of the said maintenance including the instant land, the acquisition by prescription of ownership of the instant land under the premise of the autonomous possession shall return to the beginning without any reason. However, the defendants' exhibition and use of water are the contents of the rights to acquire or use water, and its situation was continued and expressed, as it continued for 20 years or more, it is deemed that the defendants acquired the right to use water as a result of April 1, 1965 by the Civil Code294 and Article 245.
However, in regard to the above recognition, the Plaintiff argued that (1) around 1947, the Defendants agreed to pay land usage fees according to the precedent with Nonparty 13, who was the representative of the Defendants, before receiving farmland distribution, and (2) around December 1964, there was an agreement between Defendant 1 and the Plaintiff to conclude a sale and purchase contract on the land. Accordingly, there is no evidence to acknowledge that this constitutes a cause for suspending the prescriptive acquisition of the wartime community area, and (2) there is no evidence to acknowledge that the testimony of Nonparty 11 was consistent with the above, but the testimony of the witness was too long long, and it is difficult to believe that the testimony of the witness is too long, and there was no evidence or support on the documents, such as the fact that the testimony of the witness was made, and thus, it is difficult to believe that the testimony of the witness was in good faith, and there is no other evidence to prove the facts alleged by the Plaintiff (1) and (2).
Therefore, the defendants, from April 1, 1945 to the effect of the prescriptive acquisition of the right to use water in wartime, acquired from the maintenance of the above land including this land based on the right to use water as a real right and acquired the right to use water for irrigation. Thus, the plaintiff's land ownership of this case cannot be restricted to the extent of the restriction, and therefore, it cannot be requested to transfer the land of this case.
3. Judgment on the plaintiff's conjunctive claim
The plaintiff asserts that even if the above request for extradition is not accepted, the defendants caused damage corresponding to the plaintiff by preventing the plaintiff from cultivating the land in this case due to his joint tort. Thus, the plaintiff should compensate the plaintiff for the damage amounting to KRW 94,200 and KRW 40,000, which is the damage in the current year, at the end of each year until the delivery of this case is completed, every year. However, as seen above, the defendants acquired by prescription the right to use the water in this case's land, and the effect of the prescriptive acquisition is retroactive to April 1, 1945. Thus, the defendants are not liable for the illegal possession. Thus, the plaintiff's conjunctive assertion on the premise of the defendants' unlawful possession is without merit.
4. Conclusion
If so, the plaintiff's claim for objection is without merit, and it is dismissed, and since the original judgment differs from this conclusion, it is unfair to cancel it, and the total costs of lawsuit shall be borne by the plaintiff who has lost, and it is so decided as per Disposition.
Judges Kim Hong (Presiding Justice)