Abstract:

Water property was acknowledged in the first years of the Republic. In this sense, the legal regulation in Turkish Law Number 743 is similar to that of the Swiss Civil Code. According to this, both the resources and the underground waters are in the property of the land owner from whose land they flow. Because resources are the integral part of the supply. Therefore, the ownership of the source can not be transferred independently from the land to the others. This is as required by Civil Code Articles 684, 718 and 756, respectively. In Turkish law, a trend started in 1945, especially after the 1950s, that water property belonged to the State. The first regulation on this subject was made in the Mining Law Number 6309. This mentality brings the interests of the State into the forefront. Law amendments envisage that the property of water belongs to the State were made in those years. Indeed, in 1960, the article of 679 of Civil Code was changed by the Law Number 138 and the ground waters have been removed from being a private property issue. Later on, by the Law Number 167, this situation was expanded and made permanent in the manner covering not only the land but all the underground waters. In the period of Turkish Civil Code Number 4721, it was accepted that only the resources are belong to the property of supply (Article 756). On the other hand, water resources were taken under the possession of an absolute right of the State in the Water Law Draft which has been prepared for many years. Accordingly, waters are not subject to the ownership of the supply in which they are in (Article 3 / I). As it can be seen that with the draft law, the existing provisions were improved. Thus, all waters sources have been removed from being a private property issue. This result is contrary to Article 35 of The Constitution which guarantees the ownership and the Articles 718 and 756 of Civil Code. This conclusion is also contrary to the liberty regime or the ownership mentality of our century

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