2018Da214128, Delivery of Land

2018Da214135 (Counterclaim) Confirmation, etc. of traffic rights over surrounding land

A

B

Suwon District Court Decision 2017Na200581, 2017Na200598 decided January 31, 2018

6,2018. 28

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

The grounds of appeal are examined.

1. As to the grounds of appeal on the right to passage over surrounding land and water supply

A. The right of passage over surrounding land under Article 219 of the Civil Act is acknowledged in a case where there is no passage between a certain land and a public road necessary for the use of the surrounding land, and the owner of the surrounding land is unable to enter the public road at all without passing over or passing over the surrounding land, as well as where excessive costs are required.

In addition, since the right to passage over surrounding land is limited to the use of surrounding land for the use of the land without a passage necessary for the use of the land between the public service and the public service, the scope of the right to passage is not only necessary for the owner of the right to passage, but also within the scope of the place and method where the owner of the surrounding land suffers from the infringement of the right to passage, and the scope should be determined by considering the topography, location, shape and use of the surrounding land in light of social norms, neighboring geographic situations, understanding of users of the surrounding land, and all other circumstances (see, e.g., Supreme Court Decision 94Da43580, Sept. 29

In addition, a person who has a traffic right to another person's own land can only use the land within the scope of the traffic right, and does not have the right of exclusion from the possession of the owner of the traffic right to the surrounding land. However, a person who has the traffic right to the surrounding land may, if necessary, establish a passage on the surrounding land. Therefore, if the passage is not exclusively occupied to the extent that the possession of the owner of the traffic right is excluded, the person who has the traffic right to the surrounding land cannot seek delivery of the passage part within the scope of the traffic right to the surrounding land. Furthermore, if the owner of the surrounding land fails to pass through another person's land, if it is impossible or excessive to install the passage part within the scope of the traffic right to the surrounding land, the person who has the traffic right cannot seek removal of the passage part by passing through another person's land (see Article 218 of the Civil Act), and the person who has the traffic right cannot seek removal of the passage part by satisfying the above requirements (see Supreme Court Decision 2002Da5469, Aug. 29, 2003).

On the other hand, if there are special circumstances, such as that it is possible to use facilities such as passage and water supply using another parcel of land without causing damages to the neighboring land owners, the parties may waive the right to passage and water supply around the surrounding land under the Civil Act. However, in order to recognize such renunciation, the renouncer should be aware that there are facilities such as the right to passage over surrounding land under Article 219 of the Civil Act and the water supply under Article 218 of the Civil Act,

B. The lower court acknowledged the following facts based on the facts stated in its judgment.

1) The former owner of the land in the instant dispute seems to have permitted the use of the land in the instant dispute to the network H on the premise that he/she uses part of the land owned by the network H as the site of the building owned by him/her.

2) After constructing a building on the land owned by the network H, the land in the dispute part of this case located on the front of the building was used as a passage to the public road.

3) Since then, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) who acquired the ownership of the land in the instant dispute and the building above, exchanged land to the Plaintiff (Counterclaim Plaintiff; hereinafter “Defendant”) in line with the current state so that the said building owned by the Plaintiff and the building owned by the Plaintiff can be used in modern times, and the remaining part was referring to the sale and purchase defect.

4) The network H and the Defendant refused the above proposal and responded to the purport that “it is allowed to enter and exit from the road following the building even if the land in the dispute part of this case is not used.” As such, the Defendant respondeded to the purport that “I remove the building.”

5) Accordingly, the Plaintiff removed the above provisional building, and the network H opened a route leading to the road behind the building on the land where the building was located. The lower court determined that: (a) the deceased H and the Defendant sought removal of the provisional building on the land where the building was located; (b) under the premise that they would waive the use of the part of the instant dispute owned by the Plaintiff; and (c) as long as the Plaintiff removed the provisional building, the network H and the Defendant should, as a matter of course, remove the facilities installed on the land in the instant dispute part and return the said land to the Plaintiff.

Following the judgment below, the court below accepted the plaintiff's claim against the main lawsuit seeking delivery of the part of the dispute of this case and prohibition of passage, and removal of various facilities installed on the part of the dispute of this case, and dismissed the defendant's claim for the confirmation of the defendant's right to passage over surrounding land and the prohibition of interference with passage, on the ground that "if the defendant uses the new access route, access to the second floor of the building owned by the defendant is impossible, access to the second floor of the building, the use of the existing water supply and drainage facilities becomes impossible, etc.," and there is a new alternative to install the water supply and drainage facilities on the side or the rear side of the above building, and there is an alternative to install the new water supply and drainage facilities on the other part of the building owned by the defendant.

D. Examining the facts and circumstances acknowledged by the court below in light of the legal principles as seen earlier, in the course of consultation with the Plaintiff, which is the new owner of the land in the dispute of this case, the deceased H and the Defendant expressed an intention not to use the land in the dispute of this case, and cannot be deemed to have expressed an intention to waive the right to use the land in the dispute of this case with the knowledge of the existence of the right to use the land in the surrounding land under Article 219 of the Civil Act and the water under Article 218 of the Civil Act.

Therefore, the lower court should have further determined whether there is excessive cost of installing new passages and water supply and sewerage facilities, and if the right of passage over surrounding land is recognized by requiring excessive cost, not only the person with the right of passage but also the place and method where the damage of the owner of surrounding land is the lowest, and whether the Defendant has exclusive possession of the passage recognized as such, to the extent that it excludes the Plaintiff’s possession.

Nevertheless, the court below rejected all of the defendant's arguments without examining the requirements for the right of passage over surrounding land and water supply, solely on the ground that the defendant renounced his right of use, and accepted the plaintiff's claim, which affected the conclusion of the judgment by misapprehending the legal principles on the right of passage over surrounding land and water supply, and failing to exhaust all necessary deliberations. The ground of appeal assigning this error has merit.

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

2. Judgment of the presiding judge

Justices Kim Jae-han

Chief Justice Park Sang-ok

Justices Lee Dong-won