In a case where Party A, a local government, buried waste in the process of reclaiming waste into a landfill site for more than 30 years, and Party B, who acquired the ownership of the adjoining land, excavated the land at a large quantity of waste to the adjoining land that bordered with the reclaimed land, and subsequently, Party B, who acquired the ownership of the adjoining land, was buried in a mixture of various household garbage, such as plastic, wood, waste clothing, sludge, and construction waste, and the surrounding soil was found to have been contaminated, and Party B filed a claim against the local government for removal, etc. of the buried waste, the case holding that the lower court erred by misapprehending the legal principles, which held that Party B’s claim for removal of disturbance is admitted, even though the result of Party A’s illegal dumping by the local government was caused by Party A’s illegal dumping, and it cannot be deemed that Party B’s household garbage currently continues to violate Party B’s ownership.

In a case where Party A’s local government buried waste in the process of reclaiming waste into a landfill site for more than 30 years, and Party B’s land acquired ownership of the adjoining land, and then buried in a mixture of various household garbage, such as plastic, wood, waste clothing, sludge, construction waste, etc. between 1.5 through 4 meters underground, and the surrounding soil was contaminated, and Party B sought a removal of the buried waste against the local government, the case held that the lower court’s claim for removal of the buried waste from the above ground was justifiable to deem that it was difficult to distinguish the contaminated waste from the surrounding soil, and that there was no violation of the current ownership of the household garbage, even though Party A’s claim for removal of the buried waste from the above ground was no longer than 30 years after the buried waste was contaminated, and there was no error of misapprehending the legal principles as to the claim for removal of the buried waste from the ground.

Articles 214 and 750 of the Civil Act

Plaintiff (Law Firm Han, Attorneys Kang Shin-chul et al., Counsel for the plaintiff-appellant)

Kimpo-si (Attorney Lee Im-soo, Counsel for defendant-appellee)

Seoul High Court Decision 2015Na2027895 decided January 13, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to whether the Defendant buried waste without permission

Based on its stated reasoning, the lower court determined that the Defendant buried household garbage in the instant land without permission.

In light of the relevant legal principles and the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations or by violating the rules of evidence, etc.

2. Concerning the establishment of the claim for exclusion of disturbance

A. In this case where the Defendant buried household garbage, such as vinyl, ceiling, construction waste, etc., on the instant land without the consent of the landowner at around 1984 and the household garbage continues to exist on the ground of the instant land, the lower court held that, as long as the Defendant’s act of reclaiming household garbage continues to exist on the ground of the instant land without the consent of the landowner at the time of 1984, whether the Defendant’s act of reclaiming household garbage continues to exist, and whether the Defendant’s act of reclaiming household garbage continues to exist on the surface of the instant land, and whether the act of reclaiming household garbage cannot be seen as an obstruction due to the termination of the contract and only compensation for the damage incurred therefrom, the lower court accepted the Plaintiff’s claim for the removal of interference.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) From April 1984, the Defendant used a river of 16,296 square meters in Kimpo-si ( Address omitted), Kimpo-si (hereinafter “the instant garbage reclaimed land”) as a garbage reclaiming site, buried household garbage, etc., and terminated the use thereof on April 1988.

B) In the process of reclaiming garbage to the instant reclaimed land, a considerable amount of garbage was buried in the instant land among the adjoining land that share the boundary of the said reclaimed land.

C) On July 8, 2010, the Plaintiff acquired ownership of the instant land and excavated the instant land. The Plaintiff was buried in a mixture of household garbage, such as vinyl, wood, waste clothing, sludge, construction waste, etc. between 1.5 through 4 meters underground, and the surrounding soil was contaminated.

2) Examining the above facts in light of the relevant legal principles, it is reasonable to view that the household garbage buried under the ground of the instant land has been buried for more than 30 years since it was buried, and there is a mixture of sludge and various household garbage mixed with the surrounding soil to the extent that it is difficult to pollute the soil and in fact separate from the soil. Such a situation is merely the damage inflicted on the Plaintiff, the landowner, and it cannot be deemed that the household garbage continues to be a separate infringement on the Plaintiff’s ownership. Accordingly, the Plaintiff’s claim for removal of disturbance cannot be accepted.

Nevertheless, the lower court determined otherwise, that the Plaintiff’s right to claim for removal of disturbance is recognized as long as the household garbage buried by the Defendant on the ground of the instant land continues to exist. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment requirements of the right to claim removal of disturbance, thereby adversely affecting the conclusion

3. Conclusion

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.

Justices Kim Seon-soo (Presiding Justice)