[지역권설정등기][집19(1)민,335]
As long as the owner of the dominant land has not been able to obtain the registration of the establishment of the easement even though the dominant land was divided and the ownership of the part was transferred to another person, the part of the land which was owned by another person may be requested to implement the registration of the establishment of the easement.
Even if the ownership of a part of the dominant land has been transferred to another person due to the subdivision of the dominant land, the owner of the dominant land may request the implementation of the registration of the establishment of the easement.
Article 291 of the Civil Act, Article 292 of the Civil Act
Plaintiff
Defendant
Seoul High Court Decision 70Na1250 delivered on December 18, 1970, Seoul High Court Decision 70Na1250 delivered on December 18, 1970
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The grounds of appeal No. 1 by the defendant's attorney are examined.
If comprehensive review is conducted by comparing all the evidences presented by the original judgment with the records, it is sufficient to accept the fact that, at the time when the plaintiff entered into a contract to purchase the above site from the defendant, the defendant has an agreement to open a passage in the original market by providing the above part of the (number 2 omitted) to the plaintiff's passage in the same place (number 2 omitted) between 590 and 326 square meters, which was owned by the defendant (number 1 omitted) and 263 square meters (number 2 omitted) which was divided into the same place (number 2 omitted) and 263 square meters (number 1 omitted) which was owned by the defendant, for the convenience of purchase and sale of the above site, the non-party's testimony cannot be viewed as any evidence and fact that the non-party's testimony by the court of first instance cannot be cited as evidence for lack of credibility in ordinary real estate sale or ordinary experience, and there is no other evidence to find the non-party's testimony as legitimate evidence.
The second ground of appeal is examined.
In this case where the plaintiff purchased the same place (number 1 omitted) as the above (number 1 omitted), large 263 square meters and one hundred and thirty square meters in the same place (number 1 omitted), large 133 square meters and 30 square meters in different lots (number 3 omitted), and even if the ownership of the part was transferred to another person, the plaintiff did not acquire the easement because it was not yet implemented ( therefore, there is no easement to transfer part of the ownership of the above site). The court below may accept the part of the land owned by the above other person as the part of the contract between the defendant and the defendant for demanding the performance of the registration of the establishment of servitude, which the plaintiff seeks against the defendant for the execution of the registration of the establishment of servitude as the part of the land owned by the above other person, on the ground of the contract for the establishment of servitude which was made by the establishment of the passage between the defendant and the defendant. Therefore, there is no error in the misapprehension of legal principles as to the servitude as pointed out in the judgment of the court below.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges by applying Articles 95 and 89 of the Civil Procedure Act to the burden of the costs of appeal.
Justices of the Supreme Court (Presiding Judge) Kim Young-chul Kim Young-ho (Presiding Judge)