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The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. citing the reasoning of the judgment of the court of first instance, the lower court determined that the Plaintiff owned the Plaintiff’s ownership of the Plaintiff with a 3,309 square meters in 1,09 square meters in Chungcheongnam-gun, Chungcheongnam-gun, E (hereinafter “instant land”) and F 1,010 square meters in 1,00 square meters in 1,69 square meters and F 113,302 square meters in Do, adjacent to the instant land, and that it is owned by the Defendant. However, according to the images of photographs taken by the court of first instance at the time of the closing of argument, it would be sufficiently possible for the Defendant to pass along the existing road according to the images of the photographs taken by the court of first instance. The Defendant owned most of the land that is passing through the existing road, and the Plaintiff expressed his intent to use the existing road for the Plaintiff’s passage is the most damage to himself, and thus, it is possible for the Defendant to pass along the instant land along the existing road. The Plaintiff dismissed the Plaintiff’s claim seeking confirmation of the right of passage.
2. However, the above determination by the court below is difficult to accept. A.
The right of passage over surrounding land may be recognized not only in cases where a certain land cannot be controlled by a public road surrounded by another person's land, but also in cases where a certain passage has already been established but also in cases where the passage is inappropriate for the use of the land so that it does not actually function as a passage.
(See Supreme Court Decision 94Da14193 delivered on June 24, 1994, and Supreme Court Decision 2004Da63521 delivered on December 9, 2005). B
The record reveals the following circumstances.
1) The instant land is surrounded by the aforementioned DB and C forest owned by the Defendant, and has been left unattended without any long-term cultivation. The Plaintiff acquired the ownership of the instant land and developed land on October 12, 2010, and cultivated crops as a dry field farming shed. 2) The existing passage road is a farming road in the past.