[출입방해금지등][공1993.7.15.(948),1664]
Requirements for the prescriptive acquisition of traffic area;
Article 294 of the Civil Code provides that "The provisions of Article 245 shall apply mutatis mutandis only to cases where servitude is continued and expressed." Thus, in order to acquire the right of passage due to the expiration of the acquisition period of servitude due to possession, the owner of the dominant land must have opened a passage on the dominant estate owned by another person.
Article 294 (Civil Act Article 245)
Supreme Court Decision 90Da15167 delivered on April 23, 1991 (Gong1991, 1458) 90Da16283 delivered on October 22, 1991 (Gong1991, 2795) 92Da20385 delivered on September 8, 1992 (Gong192, 2846)
Attorney Kim Jae-chul et al., Counsel for the plaintiff-appellant
Defendant
Seoul High Court Decision 90Na45146 delivered on November 6, 1991
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal by the Plaintiff’s attorney are examined (the grounds of appeal stated in the supplementary grounds of appeal are examined within the scope of the supplement).
1. The judgment of the court below as to the point that the theory of lawsuit points out (the rejection of the plaintiff's claim on the premise of the plaintiff's claim on the ground that there is no evidence to acknowledge the plaintiff's claim that the plaintiff received a donation from the deceased non-party 1, the heir, who is the original situation, who is the deceased non-party 1's successor, who is the original situation) is just and acceptable, by comparing the evidence relations prepared by the court below with the records and review, and it cannot be viewed that there is an error of law such as the main claim
2. Article 294 of the Civil Act provides, “The provisions of Article 245 shall apply mutatis mutandis only to cases where the servitude is continued and expressed.” Accordingly, in order to acquire the passage right due to the expiration of the acquisition period of the servitude due to possession, the opinion of party members is that the owner of the dominant estate should have opened a passage on the servient tenement owned by another person (see Supreme Court Decision 90Da16283, Oct. 22, 1991).
The court below rejected the plaintiff's motion of prescriptive acquisition on the ground that the plaintiff used the passage of the land in the dispute of this case as a passage along the neighboring residents and did not recognize the fact that the plaintiff opened it as a passage for his own own land site. The above measures of the court below can be justified if compared with the above legal principles and evidence-related records, and it cannot be viewed that there was an error such as the plaintiff's motion of lawsuit, and therefore the above argument is without merit.
3. The court below held that the land owned by the plaintiff is located at the corner of the four streets from the government Dog-si, and the remaining boundary of the land adjoining to the second line from the government Dog-dong to the government Dog-dong, and there is a fence with a height of 2.5 square meters stockpiled by the plaintiff. The plaintiff's site inside the fence is lower than 60 cm to 70 cm to the outside of the road. The delivery of the above road's edge of the road is that the above road's entrance and use of the above part of the building site was within the boundary of the road 200 m3 to the above road's entrance and use of the building site as part of the adjoining road's entrance and use of the building site by the road 100 m3 to the above road's entrance and use of the building site. The plaintiff's use of the building site as part of the above road's entrance and use of the building site can not be seen as an infringement of the plaintiff's right to occupy and use of the building site.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man (Presiding Justice)