[손해배상청구사건][고집1976민(2),140]
The case holding that the owner of a private road cannot claim damages equivalent to the rent for a person who uses the private road.
In the event that the private road is merely used as a road provided for the passage of the general public, not exclusively controlling and exclusively occupying the private road, the owner of the private road may not claim compensation for the rent equivalent under the premise that the user of the private road occupies the private road.
Article 750 of the Civil Act, Articles 6 and 7 of the Private Road Act
Plaintiff
Defendant 1 and one other
Daegu District Court of First Instance (75 Gohap696)
The appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The original judgment shall be revoked.
Defendant 2 paid the Plaintiff the amount of KRW 55,936 and KRW 17,460 each year from April 16, 1975; Defendant 1 paid the amount of KRW 132,389; and KRW 41,328 each year from April 16, 1975.
All the costs of lawsuit shall be borne by the defendants in the first and second instances.
A provisional execution may be effected only under the above paragraph (2).
The Plaintiff’s legal representative, on August 14, 1959, formed a housing site with the construction line designation and permission for opening a private road for about 9,00 square meters located in the Nam-gu 40-dong 40-dong 40. The Plaintiff concluded a housing site sale contract with the purchaser of the housing site who will use the road for about 70-meter long-term 6 meters long-term 4 meters long-term 700 meters long-term 4 meters long-term 9. The Defendants did not conclude such contract with the Plaintiff, and owned the building site and housing adjacent to the part of the above private road to the 19-dong 40-dong 40-dong 40-dong 7. Since there was no dispute between the Plaintiff and the 16-gu 17-dong 13-dong 46-dong 17-dong 16-dong 17. The Plaintiff’s assertion that the above construction site was owned by the Plaintiff from around 11, 1970 to the 16-party 17.
The facts that the above road is provided for free passage of all persons and vehicles, and the land located on the road of this case included in the above fire fighting road, and Defendant 1 entered the building site of 109-16, Defendant 2 owned the above site of 109-1, and Defendant 2 entered the building site of the same 109-1, and the Plaintiff constructed each building before the construction of the above site and provided the gate in the letter of the same site. As the Plaintiff's construction of the above road, it can be recognized that the gate was returned to the head of the e-mail at the time of the e-mail. However, there is no evidence to deem that the Defendants, like the head of the e-mail, occupied the land of this village by exclusively and exclusively controlling the land of this village, and merely used the land as a road provided for the passage of the general public. Furthermore, even if the Plaintiff obtained designation of the building line and permission for opening the private road market, the Plaintiff did not have any authority to restrict or collect the use fees under Article 7 of the Private Road Act.
Therefore, the plaintiff's claim for objection shall be dismissed without merit. The judgment of the court below with the same conclusion is just, and the plaintiff's appeal is dismissed by Article 384 of the Civil Procedure Act with no merit, and it is so decided as per Disposition by applying Articles 95 and 89 of the same Act with respect to the burden of litigation costs.
Judges Park Jae-sik (Presiding Judge)