甲、乙、丙三村分别按20%、30%、50%的比例共同投资兴建一座水库,蓄水量10万立方米,约定用水量按投资比例分配。某年夏天,丙村与丁村约定当年7月中旬丙村从自己的用水量中向丁村供应灌溉用水1万立方米,丁村支付价款10000元。供水时,水渠流经戊村,戊村将水全部截流灌溉本村农田。丁村因未及时得到供水,致秧苗损失5000元。丁村以为丙村故意不给供水,遂派村民将水库堤坝挖一缺口放水,堤坝因此受损,需花20000元方可修复。问:
(1)丙村与丁村之间的约定是否有效为什么
(2)对于堤坝的毁坏,谁可以作为原告起诉丁村,要求丁村承担赔偿责任为什么
正确答案及解析
正确答案
解析
(1)丙村和丁村的协议有效。根据民法原理,按份共有人行使其财产所有权时,应当按协议办理,如没有协议,则可由共有人协商一致或按多数共有人的意见办理。本案中丙村根据协议享有10万立方米蓄水量中的50%即5万立方米的用水量,其向丁村转让1万立方米的用水权的协议,经过双方协商一致,并且没有损害甲、乙两位共有人的利益,应为合法有效。 (2)甲、乙、丙三村可以以侵权为由,作为原告起诉丁村。因为水库的所有权属于甲、乙、丙三村共有,虽然丁村认为丙村故意不按约定供水,违约在先,但其挖坏堤坝的行为不仅侵犯了丙村的财产权,同时也侵犯了甲、乙两村的财产权。所以,甲、乙、丙三村可作为共同原告,要求丁村赔偿损失。
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