Abstract

In the commented judgment, the Supreme Court rightly held that, alongside the concept of ownership defined in Article 140 of the Civil Code, ownership should also be differentiated in another sense, specifically in the sense which appears in water law. The right to water is indeed an absolute right, but it constitutes a legal category separate from ownership within the meaning of Article 140 of the Civil Code. This distinctness arises from the fact that water existing in its natural state - due to the lack of independent existence - does not constitute an object within the meaning of Article 45 of the Civil Code. Whether, in a specific case, we are dealing with ownership in the sense of civil law or in the sense of water law is determined by the provisions of water law in conjunction with Article 143 of the Civil Code. Pursuant to Article 14(2) of the 2001 Water Law, land covered by flowing surface waters that constitute public property is excluded from civil-law transactions, except in cases specified by the statute. The concept of exclusion of real property from civil-law transactions should be understood as a prohibition of any change in the person of the owner, including acquisition by way of adverse possession. Under the second sentence of Article 292 of the Civil Code, the provisions on the acquisition of ownership of real property by adverse possession apply accordingly to the acquisition of a land easement by adverse possession. Through Article 305⁴ of the Civil Code, the provisions on land easements apply accordingly to transmission easements. Consequently, encumbering land covered by inland flowing waters with a transmission easement is not possible.