The Taiwan High Court rendered the 106-Shang-Yi-443 Civil Decision of December 13, 2017 (hereinafter, the “Decision”), holding that if a land is used for the installation of a water tower in accordance with the Water Supply Law, the superficies shall be deemed to exist and this constitutes rightful occupancy, then the refusal to relocate the water tower to an inappropriate location is not an abuse of rights.
According to the facts underlying this Decision, the Plaintiff filed a complaint to assert ownership over the land at issue. However, the Defendant, i.e., the Management Committee of Community A, had occupied part of the land at issue to install the water tower at issue without authorization. Even if the superficies could be deemed to have existed pursuant to the Water Supply Law, the Defendant’s refusal to relocate the water tower to a vacant land in the community was obviously an abuse of rights. Therefore, the Plaintiff requested to demolish the water tower at issue and return the land at issue and the unjust enrichment as a result of unrightful occupancy in accordance with Articles 767 and 179 of the Civil Code. The original trial court ruled against the Plaintiff. Dissatisfied, the Plaintiff appealed.
It was first pointed out in this Decision that pursuant to Article 61-1, Paragraph 4 of the Water Supply Law, the land used by pressured water receiving equipment of water users shall not belong to the users. However, if the use has continued for over 10 years since the date of water supply by the water supply enterprise, such users shall be deemed to have superficies over the land. The superficies shall be deemed to have existed due to use of the land at issue by the water tower at issue pursuant to the above provision. The land installed by a water towerwas not unrightful occupancy.
It was further pointed out in this Decision that an abuse of rights requires both impairment to others subjectively as the primary objective and inconsistency between the benefit obtained by an exercise of right and the impairment to others. Therefore, when an individual exercising a right does not subjectively seek to impair others as the primary objective, even though the exercise of the right undermines the interest of a counterparty, it can hardly be regarded as an abuse of right.
Hence, according to this Decision, if the water tower at issue had been set up in Community A, the households would not have had access to water supply since it would have been impossible to deliver water to such location due to height limitation, based on the investigation conducted by the Taipei Water Department. This shows that Community A was not an appropriate location for setting up the water tower at issue. To safeguard the right of all households in the community to access water supply, although the refusal to relocate the water tower at issue to the Community, which was not an appropriate location, impaired the interest of the Appellant, still impairment to the Appellant’s interest was not the primary objective. Therefore, refusal to relocate the water tower to Community A certainly was not an abuse of rights. In addition, the Appellee’s use of the land at issue was based on the above superficies and had a lawful legal basis, and it was not true that such use was unlawful, it was concluded that the original decision was not erroneous. After the Appellant’s appeal was dismissed, this matter was concluded.