BEIHAI MARITIME COURT

PEOPLE??S REPUBLIC OF CHINA

CIVIL JUDGMENT

No.Hai-Shi-Chu 009(2001)


Plaintiff:       Zhang Yuanbin, 47 years old, male, Han nationality

Domicile:       No.12Caixi Road, Xichang Town, Hepu County,Guangxi

Zhuang Autonomous Region

Agent ad Litem:  Pang Xingzhong, attorney-at-law of Xiandao United

Law Firm, Guangxi Zhuang Autonomous Region


Defendant:      Han Qiyao, male, 30 years old, Han nationality, farmer

Domicile:        Dashitun Village, Bantang Villagers Committee,

Lianzhou Town, Hepu County, Guangxi Zhuang Autonomous Region


Defendant:     Han Yuzhi(father of Han Qiyao), male, 56 years,old, Han

 nationality, farmer

Domicile:       the same as above

Agent ad Litem:  Lin Xiang, staff of Haining Law Office, Nanning City


Defendant:     Pang Huang, male, 42 years old,Han nationality, farmer

Domicile:      Lianchang Road, Xichang Town, Hepu County, Guangxi

Zhuang Autonomous Region


This court, on May 29, 2001, accepted the cases of dispute over neighbor relations concerning the shrimp pond and formed a collegial bench for hearing the case. The litigants were the plaintiff Zhang Yuanbin, and the defendants Han Qiyao, Han yuzhi and Pang Huang. The case was transferred to this court by Hepu County People??s Court of Guangxi Zhuang Autonomous Region. The bench held public hearings on July 3 and August 9 respectively with the presence of the plaintiff Zhang Yuanbin and his Agent ad Litem Pang Xingzhong, the defendants Han Qiyao and Han Yuzhi and their Agent ad Litem Lin Xiang. The defendant Pang Huang refused to appear before the court without proper reasons after being summoned. The hearing of this case has now been concluded.


The plaintiff alleged that since 1994 the plaintiff had been going to his shrimp pond neighboring the defendants?? shrimp pond through the dike built by both the plaintiff and the defendants. However, in January 2001 the defendants Han Qiyao and Han Yuzhi piled the silt on the dike while clearing the pond. In April the defendant Pang Huang built a house on the dike, which blocked the sole path to the plaintiff??s shrimp pond. As a consequence, the plaintiff was unable to take care of and fish for the raised winter shrimp to sell in the peak period. The winter shrimp thus died and spring shrimp seedlings could not be bred in time. Therefore, the plaintiff demanded that the defendants clear away the obstruction, restore the dike to its original conditions and compensate for the losses of ?¤80,000.  


The defendants Han Qiyao and Han yuzhi argued that the dike of their shrimp pond was not the only passage to the plaintiff??s shrimp pond because the plaintiff could go to and come back from his shrimp pond via the seaside embankment. The plaintiff was not entitled to the right to pass through the dike. The defendants legally ran their shrimp pond by raising the dike with silt from the bottom of the pond, which did not infringe on or interfere with the plaintiff??s rights. Furthermore, the raised dike was still passable. The defendant demanded that the court reject the plaintiff??s litigant requests because the plaintiff did not present the evidence for the causes and the amount of his losses of ?¤80,000. In addition, Han Qiyao should not be the defendant of this suit because the shrimp pond was the property of Han Yuzhi and had nothing to do with Han Qiyao.

The defendant Pang Huang made no argument.


The following facts were affirmed: the plaintiff, along with Pang Huang and Pang Xong as his partners, bought a shrimp pond of an area of 50 mu. They had applied to the Office of Development and Administration of Beaches of Xichang Town, Hepu County for the certificate of temporary use of beach No. he-di-lin-yong-16(1994) which stated: applicants: Pang Huang, Zhang Yuanbin and Pang Xong; item: shrimp breeding; location and catalogue: the beach of Dongjiang River estuary; usable area:50 mu


Around 1997, the shrimp pond was divided among the plaintiff, the defendant Pang Huang and the outsider of this case Pang Xong. The plaintiff had the right to utilize the shrimp pond of the size of 18-mu extending in the east to Pang Xong?? pond, in the west to Shuigou Road??in the south to the uncultivated land and in the north to Han Yuzhi??s pond. In 1996 the defendants Han Yuzhi and Han Qiyao bought a shrimp pond of 40-mu. Both the plaintiff??s pond and the defendants?? pond were located on the beach of Dongjiang River estuary of Xichang Town in Hepu County. The north of the plaintiff??s shrimp pond was bordering part of the south side of the defendants?? (Han Qiyao and Han Yuzhi) shrimp pond. The most convenient passage for the plaintiff to get to and back from his shrimp pond was the dike of the defendants?? (Han Qiyao and Han Yuzhi) shrimp pond. Besides, the plaintiff had been going to and coming back from his shrimp pond through this dike ever since he bought the shrimp pond. This dike was 3 metres wide and open to traffic for vehicles. The plaintiff may make a detour through the seaside embankment, but the walking distance to the plaintiff??s shrimp pond via the embankment would be more than double the distance at least as via the dike. Besides, it would be unsafe and inconvenient. 


In January, 2001 the defendants Han Qiyao and Han Yuzhi cleared the shrimp pond and piled the silt up on the dike. With the dike bumpy and overgrown with weeds, it was not passable for both foot passengers and vehicles. In April, the defendant Pang Huang built his house on the dike. The kitchen of the house took up in width of approximately two thirds of the dike, the necessary passage for the plaintiff. The plaintiff claimed the losses of ?¤80,000 resulting from the deaths of winter shrimp and failure to breed spring shrimp due to the blocked dike. However, the plaintiff did not present sufficient evidence for his claim. 


The aforementioned facts, after cross-examination and being ascertained and verified by the court, had been entered in the court records and proved by the following evidence:?¨1??evidence presented by the plaintiff??the certificate of temporary use of the beach and photos of the locale???¨2??evidence presented by the defendants Han Qiyao and Han Yuzhi??the certificate of use of the sea beach, receipts of shrimp pond administration fee and the photos of the locale???¨3??investigation records of Hepu County People??s Court. 


In accordance with the facts affirmed and related evidence, this court held: 

This case was about a dispute over neighbor relations regarding shrimp ponds. The legally prescribed neighbor relations existed between the plaintiff and the defendants, viz. Han Qiyao and Han Yuzhi on the basis of their geographically adjacent shrimp ponds. Neighboring users of shrimp ponds should make things convenient for each other or accept necessary restrictions, i.e. it was a must to properly expand or restrict the right of using shrimp ponds owing to the existing neighbor relations. It was the most convenient way for the plaintiff to go to and come back from his shrimp pond through the defendants?? (Han Qiyao and Han Yuzhi) dike.  The plaintiff could reach his shrimp pond through the seaside embankment, but the detour unnecessarily increases the distance and costs. Besides, it was unsafe and inconvenient. Hence, for the plaintiff, reaching his shrimp pond through the defendants?? (Han Qiyao and Han Yuzhi) dike best accords with the spirit of promoting production and facilitating people's life. Besides, the fact that the plaintiff had been passing by this dike to his pond was a long-time practice and should be protected by law. The defendants Han Qiyao and Han Yuzhi had the right of using their shrimp pond, but the exercise of this right shall be restricted according to law. In the spirit of facilitating people's life and enhancing unity and mutual assistance, the defendants should pay due regard to the existing practice and permit or at least not to obstruct the plaintiff??s passing through the dike. In neighbor relations, neighboring users should respect each other??s rights and consider each other??s interests. It was prohibited to benefit oneself at the expense of others. In this case the defendants Han Qiyao and Han Yuzhi improperly blocked the dike while clearing their shrimp pond and refused to make it passable.Thus, the two defendants at fault shall be responsible for the removal of obstacles and restoration to the original passable conditions of the dike.  The defendant Pang Huang built his house on the dike and the kitchen of the house took up in width of about two thirds that of the dike, which resulted in impassability of the dike. Therefore, the defendant Pang Huang should demolish the kitchen, i.e. he should undertake the responsibility to remove obstacles and restore the dike to its original conditions. Although the right of using shrimp pond was under the name of the defendant Han Yuzhi, the shrimp pond was mutually operated and managed by the Hans?? and was the main source of income for the whole family. And, withal, Han Qiyao, as the son of Han Yuzhi, mainly operated and managed the shrimp pond. Consequently, it was correct to have Han Qiyao as a defendant and demand him to bear civil liability. The argument of the defendant??s representative that Han Qiyao should not be qualified for the defendant of the case did not agree to the facts found out by this court and shall be rejected.  On the other hand, the plaintiff did not present sufficient evidence to prove the existence of the losses and the inevitability of the losses resulting from the dike??s being blocked and made impassable. That is, the plaintiff did not prove the causality between the acts of the defendants and the losses of the plaintiff. Hence, the losses of ?¤80,000 claimed by the plaintiff shall  not be supported by this court. 


Pursuant to Article 83 of the General Principles of the Civil Law of the People's Republic of China:?°In the spirit of facilitating production, making things convenient for people's life, enhancing unity and mutual assistance, and being fair and reasonable, neighboring users of real estate shall maintain proper neighbor relations over such matters as water supply, drainage, passageway, ventilation and lighting. Anyone who causes obstruction or damage to his neighbor, shall stop the infringement, eliminate the obstruction and compensate for the damage?±,  this Court hereby decides as follow:


1.The defendant shall restore the shrimp pond dike to its original passable condition and remove the obstacles to the passage through the dike by the plaintiff Zhang Yuanbin within 15 days after the judgment becomes effective;


2. The defendant Pang Huang shall demolish the kitchen of the temporary house built on the shrimp pond dike and remove the obstacles to the passage through the dike by the Plaintiff within 15 days after the judgement becomes effective;


3. The other litigant requests of the plaintiff shall be dismissed. 

The fee for acceptance of the case is ?¤3,520 and other litigation fees are ?¤300, being totally?¤3,820, of which the plaintiff Zhang Yuanbin shall bear the sum of ?¤2,520, the defendants Han Qiyao and Han Yuzhi shall bear the sum of ?¤900, the defendant Pang Huang shall bear the sum of ?¤400. The three defendants shall pay directly to the plaintiff within 10 days after the judgment becomes effective. This court shall not refund the fee for the acceptance of the case paid in advance. 


If any litigant contests this judgment, it may submit a written appeal to this court within 15 days upon the delivery of the judgment with number of copies corresponding to the number of litigants from the opposing party and appeal to the Higher People??s Court of Guangxi Chuang Autonomous Region. The appeal fee of ?¤3,520 yuan shall be paid in advance within 7 days upon the date of the expiration of the appeal period (the account: the special account for litigant fee, the Higher People??s Court of Guangxi Zhuang Autonomous Region; the number of the account: 886100010; the deposit bank: Gucheng Road Branch of Nanning City, China Agriculture Bank). If the payment is delayed without application for postponement, the appeal shall automatically be deemed as being withdrawn.


Presiding Judge  Zhang Qiancheng

Judge          Ni Xuewei

Judge          Liu Qiaofa

(Official Chop of Beihai Maritime Court)


Date  5th September, 2001

 Certified true copy

Clerk          Chen Bo