[1] In a case where the development and intake of new groundwater causes or is likely to cause an obstacle to the existing water for living of neighboring land owners, whether a neighboring land owner's right to claim the obstruction, removal and prevention of the water for living (affirmative)

[2] Whether interference with water supply for neighboring landowners is justified solely on the ground that a person obtained permission from an administrative agency for new groundwater development is justified (negative)

[3] Whether a person can claim suspension of the development work of groundwater to the extent necessary to prevent interference with the water for living caused by mass water intake (affirmative)

[1] Since the ownership of land is below the upper limit of the land within the scope of a legitimate interest, the owner of the land may develop and utilize groundwater below the ground surface of the land owned within the scope of the law. However, in full view of Article 214 of the Civil Act on the right to claim the obstruction of, removal of, and prevention of the ownership and Article 236 of the Civil Act on the right to claim the compensation for damages from water use damages and the right to claim restitution to the original state, in a case where the owner of a land newly collects groundwater through the water-take hole installed after the execution of the construction work for the development of groundwater, thereby hindering the neighboring land owner's drinking water or other water necessary for living, or there is a concern about such obstruction, unless there is any reason to justify the obstruction of water supply, the neighboring land owner may claim the removal or prevention of the obstruction of water supply.

[2] In a case where there is an obstacle to the daily life of a neighboring land owner who has utilized groundwater generated from the existing source due to the development of a new source and the utilization of groundwater by the landowner, such obstruction of daily life is unlawful unless there are special circumstances to deem that such obstruction of daily life does not go beyond the generally acceptable level under social norms. The ground that the land owner obtained a permit from the competent administrative agency for the development of groundwater under the Management of Drinking Water Act with respect to the development of groundwater shall not be justified.

[3] Even if the groundwater development project itself does not interfere with the neighboring land owner's water for living, the neighboring land owner may seek the suspension of the development project of groundwater for mass water intake to the extent necessary to prevent the mass water leakage.

[1] Articles 212, 214, 235, and 236 of the Civil Act / [2] Articles 214, 236, and 750 of the Civil Act, Article 9 of the Management of Drinking Water Act / [3] Articles 214 and 236 of the Civil Act

Applicant 1 and one other

Claimant 1 and 17 others

Geumcheon and one other (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Busan High Court Decision 97Na2597 delivered on September 25, 1997

All appeals are dismissed. The costs of appeal are assessed against the respondent.

The grounds of appeal are examined (to the extent of supplement in the supplemental statement of grounds of appeal).

1. According to the reasoning of the judgment below, the court below recognizes that neighboring land owners, such as the supplementary intervenor, etc., are expected to receive significant obstacles to water for living due to a decrease in water intake, and in light of the records, the above recognition of the court below is acceptable, and there is no violation of the rules of evidence or any violation of the rules of evidence, or incomplete deliberation, as otherwise alleged in the grounds of appeal, in case where the court below acknowledged that neighboring land owners, such as the supplementary intervenor, etc., are expected to receive significant obstacles to water for living due to a decrease in water intake, in case where the court below collects groundwater in a large amount of not less than 500 tons per day from the target production through the water intake hole installed after executing the water intake development work in the Busan Suwon-gu ( Address 1 omitted) forest (hereinafter referred to as the "land in this case") which is the owner of Geumcheon-gu (hereinafter referred to as the "land in this case").

2. Since the ownership of the land is below the upper limit of the land within the scope of legitimate profits, the owner of the land may develop and utilize the underground water below the ground surface of the land owned within the extent of law. However, in full view of the provisions of Article 214 of the Civil Act on the right to claim the obstruction of, removal from, and prevention of the ownership and the provisions of Article 236 of the Civil Act on the right to claim the damage of the owner of the water using the water due to the obstruction of water use and the right to claim restitution to the original state, in a case where the owner of a land newly collects the underground water through the water-take hole installed after the execution of the development of the underground water and thereby causes or is likely to cause an obstacle to the drinking water or other water necessary for living of the owner of the neighboring land who uses the underground water coming from the source within the neighboring land, the owner of the neighboring land may request the removal

As the court below duly admitted, if the respondent collects large volume of groundwater through the water-take hole installed on the land of this case, if there is a concern that the applicant who is the owner of the adjacent land may interfere with the water of living, the applicant may file a claim necessary to prevent such interference with the water of living. Thus, at least the court below is justified to the extent that the applicant's right to prevent interference with the water of living is regarded as the preserved right of the provisional disposition of this case

Therefore, although the ground water buried on the ground surface cannot be seen as the source under Article 235 of the Civil Act, etc., the court below must explain as if the ground water buried on the ground surface was the source of source, and even if that ground water is connected with one another under the neighboring land, it cannot be deemed as the common property of the adjoining neighbors, although the court below did not consider as being the common property of the adjoining neighbors, it should not be viewed as if the ground water buried on the ground surface, such as the land in this case and neighboring land, is a common property that can be used only within the scope of the provisions of Article 235 of the Civil Act by the applicants, supplementary intervenors, and neighboring residents, etc., even if the court below erred in the misapprehension of the legal principles as to source and the right to use the ground water, such error does not affect the conclusion of recognizing the right to be preserved in the provisional disposition in this

3. In a case where there is an obstacle to the daily life of a neighboring land owner who used groundwater generated from the existing source due to the development of a new source and the utilization of groundwater by the landowner, such obstruction of daily life is illegal unless there are special circumstances to deem that such obstruction of daily life does not go beyond the generally acceptable level under social norms. The ground that the land owner obtained permission from the competent administrative agency for the development of the groundwater pursuant to the Drinking Water Management Act cannot be justified, and therefore, the above interference of daily life cannot be justified. Therefore, the court below's disposition is just in rejecting the respondent's assertion that the construction of groundwater permitted by the competent administrative agency cannot be suspended, and there is no error of law in the misapprehension of legal principles as to the illegality of infringement of the groundwater use right, such as the tenant. There is no ground

4. Even if the groundwater development project itself does not interfere with the neighboring land owner's water for living, a neighboring land owner may seek suspension of the development project of groundwater for mass water intake within the necessary limit in order to prevent interference with daily life by mass water intake. The court below held that there is a need to prohibit the continuation of appurtenant works, such as the entry of water pipes into the above water intake hole, as a temporary remedy in order to prevent interference with the applicant's water for living due to mass water intake, such as the approval by the court below, from the water intake hole installed by the respondent. In light of the above legal principles and records, the above determination by the court below is acceptable, and there is no error of law such as misunderstanding of legal principles as to the necessity of infringement of water rights or preservative measures such as the small water intake site. The argument is without merit.

5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)