[1] The extent to which the owner of a electric cable may receive unjust enrichment from the owner of a electric cable, in case where the owner of a electric cable passes through the airspace above land and is subject to restriction on its use

[2] Whether a landowner may seek a return of unjust enrichment against the owner of a high voltage cable over the airspace within the maximum crossing distance (affirmative with qualification)

[1] Where the owner of land is restricted from using the airspace above the land by passing a high voltage cable over the airspace above the land, the owner of the land can seek a return of unjust enrichment equivalent to the rent for the airspace above the airspace over which the use of the said cable is restricted, and where the provisions of the statutes governing the airspace above the airspace through which the high voltage cable is passing and the airspace above the airspace over which the high voltage cable is required to maintain a certain distance between the high voltage cable and the structure, the use of the airspace above the distance can be deemed restricted.

[2] In the case of high-tension electric wires, there may occur a cross-virative phenomenon where the wind is coming from both steel towers. However, the part over the airspace within the maximum crossing distance is likely to cause a cross-virative phenomenon, and thus, it cannot be deemed that the landowner is subject to restrictions on the use of the above part. However, in special circumstances where the landowner’s use of the above part is limited even within the maximum crossing distance, the landowner may seek the return of unjust enrichment from the owner of high-tension electric wires equivalent to the rent for that part.

[1] Article 741 of the Civil Code / [2] Article 741 of the Civil Code

[1] Supreme Court Decision 2005Da14083 Decided April 13, 2006

Plaintiff (Attorney Doh-man, Counsel for the plaintiff-appellant)

Korea Electric Power Corporation (Attorney Kim Jae-soo, Counsel for defendant-appellee)

Gwangju High Court Decision 2006Na2259 Decided July 27, 2007

The part of the judgment of the court of first instance against the plaintiff regarding the claim for return of unjust enrichment against the airspace above the judgment of the court of first instance is reversed, and this part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

In a case where a landowner is restricted from using the airspace above the land by passing through a high voltage cable over the airspace above the land, barring any special circumstance, the owner of the land may seek return of unjust enrichment equivalent to the rent for the airspace over which the use is restricted to the owner of the said cable. In this case, in a case where the provisions of the above airspace passing through a high voltage cable and the relevant Acts and subordinate statutes provide that a certain distance between the high voltage cable and the structure shall be maintained, the part over the airspace within the distance may be deemed restricted by the owner of the land (see Supreme Court Decision 2005Da14083, Apr. 13, 206). Meanwhile, in the case of a high voltage cable, if there is a strong wind due to the increase from both the steel tower on both sides in the case of a high voltage cable, the owner of the land is subject to restriction on the use of the airspace above the maximum crossing distance, but it can be deemed that there is a special reason for the landowner’s return of the portion over the airspace above the distance.

According to the facts and evidence established by the court below, ① between October 198 and September 1989, the Defendant installed a special high-tension electrical wire (hereinafter “instant electric wire”) of 154 KV over 18m above the ground level of 1752m2 in Yasan-si (number omitted), Yasan-si (hereinafter “instant land”) owned by the Plaintiff. ② The instant land was “natural green belt area” under the former Urban Planning Act (repealed by Act No. 6655, Feb. 4, 2002), but, in the event that the instant land was located within the scope of 200-416 of the public notice of Jeollabuk-do, the Defendant changed the construction-based general residential area to “No. 2,” and ③ the Plaintiff’s opinion on the construction permit of the instant land to the effect that the construction permit of the instant land would not have been implemented within the maximum distance of 16m from the construction permit of 200-14m of the instant land to the Plaintiff.

If the facts are as above, it is reasonable to view that only the portion of the airspace through which the instant cable is passing on the instant land does not restrict the Plaintiff’s use, but also the portion of the airspace within the distance where the instant cable can cross by the strong wind, and the portion of the airspace within the separation distance in accordance with the technical standards for electrical facilities, from the place where the said electric cable can cross by the strong wind,

Nevertheless, the court below rejected the plaintiff's application for return of unjust enrichment on the portion above the ground that the portion above the land of this case passing through the electric wire of this case and the part above the distances under the electrical equipment technical standards are restricted from the area above the land of this case due to the installation of the electric wire of this case. The court below erred in the misapprehension of legal principles as to the extent to which the use of land ownership is restricted in cases where high-tension electric wires pass through the airspace above the land of this case.

Therefore, among the judgment of the court below, the part against the plaintiff regarding the claim for return of unjust enrichment against the air space above the first instance judgment is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)