Whether the right to use water has been infringed

The defendant's beams are located above approximately 200 meters above the plaintiff's beams, and except in extenuating circumstances, it is used from the defendant in accordance with the principle of running water, and the defendant's beams and ditches installation itself cannot be viewed as infringing the plaintiff's right of using water as a matter of course on the ground that the plaintiff's beams and ditches installation itself is in short of quantity.

Articles 231, 233, 234, and 236 of the Civil Act

Plaintiff 1 and one other

Defendant

Seoul Central District Court (61 Ghana7201) in the first instance trial

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

The plaintiff et al. shall pay to the plaintiff et al. an amount of 128,00 won and 5 percent per annum from the following day from the day of service to the day of full payment.

It is so decided as per Disposition 2 and 3 that the defendant would bear the costs of lawsuit and make a declaration of provisional execution.

The defendant's appeal is dismissed as shown in the Disposition.

The costs of appeal are assessed against the defendant.

First, as to the claim for damages due to infringement of water right, the plaintiff et al. can be presumed to have the title of water exclusively used for the plaintiff et al., in full view of the testimony of evidence Nos. 1 (the case of cancellation of permission to occupy and use a river site) and evidence Nos. 2 (the case of cancellation of permission to occupy and use a river site), evidence Nos. 4 (the case of cancellation of permission to occupy and use a river site), and evidence Nos. 8 (the permission to continuously occupy and use a river site) and testimony of non-party 1, 2, 3 (1, 2) (excluding the part not trusted in the rear) (the court below and the decision of the court below) from the first instance and the first instance of the parties, and the whole purport of the parties' arguments as a result of each verification, the plaintiff et al. can be presumed to have the title of water exclusively used for the plaintiff et al., which had been constructed at a point of 10 years prior to the first of 10 years ago at the public river.

The plaintiff et al. asserted that the plaintiff et al. had been at least 20 percent of the total amount of water supply for the plaintiff et al. al. located at 1,543 on his own outside-gun 247 on the ground that the plaintiff et al. installed a beam at the upper level map (3) without the right of water supply between April 1960 and the end of the same month, or the defendant's witness and the defendant's witness at the location of the plaintiff et al. were installed at the point of the attached drawing (5) so that the plaintiff et al. violated the above water right of the plaintiff et al., and the above water supply right of the plaintiff et al. al. at 35,00 square meters (175 cc.) due to the plaintiff et al.'s infringement of the water supply right of the plaintiff et al. at the lower court's 1,543 on the ground that the plaintiff et al.'s testimony and the non-party 2's testimony were not established.

In addition, as the defendant's beams are located above approximately 200 meters (m) compared to the plaintiff's beams, it should be used from the defendant in accordance with the principle of running water unless there is a special reason, and the defendant's beams and ditches installation itself cannot infringe the plaintiff's right to collect running water which the plaintiff et al. can use as a matter of course due to the lack of quantity due to the high wave at the time.

In addition, the defendant's arguments are 1,543 square meters, and the plaintiff's arguments are 35,000 square meters and 1,543 square meters, and it is 35,000 square meters.

Therefore, the claim of the plaintiff et al. on the premise that the right to use water of the plaintiff et al. was infringed shall be groundless without any need to determine the remaining points. Next, the plaintiff et al. asserted that the plaintiff et al. suffered damages of 3,000 won to the plaintiff et al. by cutting the beams and posts accumulated by the plaintiff et al. around the new flag room in March 1962. Thus, the part of the testimony of the non-party 1 and the non-party 3 of the court below, who seem to correspond thereto, shall be rejected on the ground that there is no other evidence supporting this.

In the end, since the plaintiff et al.'s claim for principal lawsuit is without merit, the original judgment that differs from this conclusion is unfair, and the defendant's appeal is with merit, so it is so decided as per Disposition by applying Articles 386 and 89 of the Civil Procedure Act.

Judges Kim Jung-tae (Presiding Judge)