August 2017
Since a public servitude formed by a land is exercised for water discharge and irrigation of farms as the purpose of use, public use of lands should not go beyond such purpose, or inappropriate exercise of a public servitude is constituted(Taiwan)
2017.5.25
Luke Hung
The Supreme Court rendered the 106-Tai-Shang-1009 Civil Decision of May 25, 2017 (hereinafter, the "Decision"), holding that since a public servitude formed by a land is exercised for water discharge and irrigation of farms as the purpose of use, public use of lands should not go beyond such purpose, or inappropriate exercise of a public servitude is constituted.
According to the facts underlying this Decision, Individual A used the land at issue for freshwater fish cultivation. However, the Taiwan Chia-nan Irrigation Association (hereinafter, the "Irrigation Association") and the Houbi District Office of Tainan City (hereinafter, the "Houbi District Office") discharged polluted water into the land at issue, making fish cultivation impossible in the land at issue. Since a loss of income for two years was incurred, a court decision was sought to award damages and stop the discharge of waste water into the land at issue.
According to the Decision, a public servitude on a private land is formed when the private land is provided for public use for public interest. The exercise of rights associated with the land is constrained only when a public servitude is properly exercised for such specific public interest. If the exercise exceeds the objectives of such specific public use or is improper to an extent that the owner's right is illegally impaired, it is not true that the owner cannot exclude such exercise or seek damages.
It was further pointed out in the Decision that the public servitude on the land at issue has been formed over a long period of time and has been exercised for water discharge and irrigation of farms. Therefore, the public use of the land at issue should not go beyond the above purpose or an improper exercise of a public servitude will be constituted and remedies such as damages may be sought.
It was further held in the Decision that since irrigation water for farms should still meet a certain water quality standard, this calls into question if the discharge of polluted water under the management and maintenance of the Irrigation Association met the quality standard for irrigation water. The installation of gutters by the Houbi District Office to accommodate the need to improve community roads has exceeded the purpose of the above-mentioned public servitude for water discharge and irrigation of farms. This calls into question if the land at issue was used based on a public servitude. Another question is whether Appellant A could exclude such use and seek damages on the ground of unlawful use. Since it was still necessary to conduct further investigation before this matter can be decided, the original decision was reversed and remanded.
Luke Hung
The Supreme Court rendered the 106-Tai-Shang-1009 Civil Decision of May 25, 2017 (hereinafter, the "Decision"), holding that since a public servitude formed by a land is exercised for water discharge and irrigation of farms as the purpose of use, public use of lands should not go beyond such purpose, or inappropriate exercise of a public servitude is constituted.
According to the facts underlying this Decision, Individual A used the land at issue for freshwater fish cultivation. However, the Taiwan Chia-nan Irrigation Association (hereinafter, the "Irrigation Association") and the Houbi District Office of Tainan City (hereinafter, the "Houbi District Office") discharged polluted water into the land at issue, making fish cultivation impossible in the land at issue. Since a loss of income for two years was incurred, a court decision was sought to award damages and stop the discharge of waste water into the land at issue.
According to the Decision, a public servitude on a private land is formed when the private land is provided for public use for public interest. The exercise of rights associated with the land is constrained only when a public servitude is properly exercised for such specific public interest. If the exercise exceeds the objectives of such specific public use or is improper to an extent that the owner's right is illegally impaired, it is not true that the owner cannot exclude such exercise or seek damages.
It was further pointed out in the Decision that the public servitude on the land at issue has been formed over a long period of time and has been exercised for water discharge and irrigation of farms. Therefore, the public use of the land at issue should not go beyond the above purpose or an improper exercise of a public servitude will be constituted and remedies such as damages may be sought.
It was further held in the Decision that since irrigation water for farms should still meet a certain water quality standard, this calls into question if the discharge of polluted water under the management and maintenance of the Irrigation Association met the quality standard for irrigation water. The installation of gutters by the Houbi District Office to accommodate the need to improve community roads has exceeded the purpose of the above-mentioned public servitude for water discharge and irrigation of farms. This calls into question if the land at issue was used based on a public servitude. Another question is whether Appellant A could exclude such use and seek damages on the ground of unlawful use. Since it was still necessary to conduct further investigation before this matter can be decided, the original decision was reversed and remanded.
