주위토지통행권확인
1.The judgment of the first instance, including a claim added and modified in the trial, shall be modified as follows:
The plaintiff.
1. Basic facts
A. The Plaintiff is the owner of 255 square meters (hereinafter “Plaintiff’s land”). The Defendant is the owner of 435 square meters (hereinafter “Defendant’s land”) adjacent to the Plaintiff’s land.
B. After acquiring the Plaintiff’s land by auction on May 10, 2012, the Plaintiff entered the Plaintiff’s land by using the part (B) of the Defendant’s land (hereinafter “instant passage”) which successively connected each point of the attached table 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 1 of the attached drawing No. 1 among the Defendant’s land. From around 2013, the passage of the instant passage has been hindered as of the date of the instant passage.
[Reasons for Recognition] Each entry or video of the facts without dispute, Gap 1, 2, 4, and 5 evidence (including each number; hereinafter the same shall apply), the purport of the whole pleadings
2. Judgment as to the main claim
A. H, the former owner of the Plaintiff’s land, used the instant passage to pass the Plaintiff’s land, and the Plaintiff succeeded to the occupation and has used the instant passage as a passage until now. As such, the Plaintiff acquired the right to pass the instant passage by prescription.
B. Inasmuch as Article 245 of the Civil Act shall apply mutatis mutandis only to cases where the right of determination is continued and expressed, the right of passage can be recognized only if the objective situation where the owner of the dominant land installs a road on the top of the servient tenement and uses the servient tenement continues to exist for the period stipulated in Article 245 of the Civil Act.
(See Supreme Court Decision 2009Da74939, 74946 Decided January 28, 2010). However, the Plaintiff is also the Plaintiff’s use of the part of the road which has been naturally formed for a long time, and there is no other evidence to acknowledge that the Plaintiff or H opened the road as the passage of this case. Thus, the Plaintiff’s above assertion is without merit without further review.
3. A determination is made with respect to preliminary claims.