If a landowner’s right to property is constrained in order to fulfill specific public interest objectives, the constraint of the right is valid only when the constraint is properly exercised to fulfill the objectives; and if it goes beyond specific common use purposes or is not properly exercised, a request may be lodged to claim exclusion or compensation (Taiwan)
Emily Chueh
The Tainan Branch of the Taiwan High Court handed down the 108-Shang-Guo-Gent-Two-1 Decision of February 12, 2020 (hereinafter, the “Decision”), holding that if a landowner’s right to property is constrained in order to fulfill specific public interest objectives, the constraint of the right is valid only when the constraint is properly exercised to fulfill the objectives; and if it goes beyond specific common use purposes or is not properly exercised, a request may be lodged to claim exclusion or compensation.
According to the facts underlying this Decision, the Appellee previously used the land at issue for fish farming. The Liaoxiao drainage of Dongan Creek, which had been managed by the Appellant’s irrigation association, discharged farm wastewater to the land at issue. The gutters ancillary to the community roads which had been set up and managed by the Appellant’s district office also discharged sewage to the land at issue directly or through the drainage of Dongan Creek. The resultant pollution made it impossible for the Appellee to continue his fish farming operation. As a result, the Appellee suffered a loss of income. In addition, the cost to restore the land at issue to its original state after years of pollution was estimated at NT$3,668,000. The Appellee sought a decision that required that the Appellant pay for the loss of income on a monthly basis from January 11, 2018 until the day when the discharge of polluted water to the land at issue stopped, stop discharging polluted water to the land at issue, and pay NT$3,668,000 in accordance with Article 2, Paragraph 2 and Article 3, Paragraph 1 of the National Compensation Law, the middle part of Article 767, Paragraph 1, Article 184 and Article 185 of the Civil Code, Article 69 of the Water Law and Article 70 of the Water Pollution Control Law (hereinafter, the “Law”).
According to this Decision, practical opinions indicate that although property rights are expressly protected under Article 15 of the Constitution, still the exercise of such rights shall not impair public interest. Therefore, land ownership obtained by the people pursuant to law is still protected and constrained by law. Therefore, when a private land is provided for public use to further public interest, a public easement relationship is formed. However, if the property right of a landowner is constrained in order to fulfill social obligations in order to achieve specific public interest, the exercise of the right is constrained only when the constraint is properly exercised to further such specific public interest. The owner may seek exclusion or compensation if the exercise of the constraint exceeds specific common use purposes or is improper to the extent of wrongfully violating the rights of the owner.
The Decision further states that the sources of the polluted water flowing into the land at issue also include the district office’s community road gutters in addition to the Dongan Creek drainage managed and maintained by the irrigation association. According to the report of the irrigation association, it can be concluded that no gutters were set up with respect to the discharge from the irrigation association’s Tongan Creek drainage to the land at issue, and that wastewater was allowed to overflow to the entire land at issue. Notwithstanding the fact that the land at issue owned by Appellee was subject to public easement and a portion of the land should be provided for drainage purposes, it is not necessary to provide all of the land at issue for drainage purposes. Domestic wastewater was discharged to the land through the gutters set up by the district office without the Appellee’s consent. In addition, a technology company was retained in this case to conduct sampled testing on the accumulated water at the entrance to the land issue from the Andong Creek drainage and to produce a test report. This was sufficient to corroborate the Appellee’s assertion that the quality of the water discharged to the land at issue from the Andong Creek drainage and the community gutters did not meet the standard for fish farming. The establishment of this inherent public easement was merely a constraint on the exercise of ownership by the owner and could not be translated into a permission that allowed the Appellant to discharge sewage to the Appellee’s land at will. It is believable that the sewage discharged by the Appellant’s irrigation association and the district office exceeded the scope of use under the public easement, which was not a proper exercise of public easement.