ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA and

ANTONIO SISON, petitioners,

vs.
HON. INTERMEDIATE APPELLATE COURT, 4th CIVIL CASES
DIVISION, MARSAL & CO., INC., and MARCELINO FLORETE, SR.,
respondents.
G.R. No. 72837
April 17, 1989
PARAS, J.:
NATURE OF THE CASE
Petition for certiorari to review the Decision 1 dated August
14,1985 promulgated by respondent Intermediate Appellate Court in ACG.R. C.V. No. 03781 which set aside the decision 2 rendered by the
Regional Trial Court, 6th Judicial Region, Branch XXVI, Iloilo City, dated
December 15, 1983 in Civil Case No. 12791.
BRIEF OF THE CASE
The case at bar arose from a complaint for recovery of damages
filed by Marsal & Co., Inc. and Marcelino Florete, Sr. (private respondents
herein) against defendants Jose C. Hernani, Ester J. Javellana, Rolando
Demafiles, Cesar Crusada and Antonio Sison for allegedly denying
plaintiffs' access to, and use of a canal leading to plaintiffs' property and
to enjoin the City Mayor and City Engineer of Iloilo City from demolishing
the existing structures within plaintiffs property serving as dike entrance
gate to said canal situated at Barangay Navais, Mandurriao, Iloilo City.
Before the pre-trial conference the complaint as against the City
Mayor and City Engineer, was dismissed at the instance of plaintiffs on the
ground that said defendants had agreed not to demolish the pendency of
the action.
FACTS
Plaintiff Marsal & Co., Inc., is presently the owner of the parcel of
land adjoining the Iloilo River up to and adjacent the lot where the
L. Borres Elementary School is located at Barangay Navais
Mandurriao, Iloilo;
In 1961, when Marcelino Florete, Sr. was still the owner of said
Marsal property having acquired the same by purchase from its
former owners sometime in 1959, there existed a main canal from
the Iloilo River cutting across said property towards the lot where
the said school is located and thru a canal that traverses the
school premises going towards Lot 2344;

Before 1971, there were no houses standing within the school

compound and premises of L. Borres Elementary School;
At present, there are 15 to 16 houses in the said school compound
one of which is the house of the barangay captain of Barangay
Navais
Sometime in July 1978, plaintiffs closed the dike entrance of the
main canal to the canal running across the L. Borres Elementary
School premises to Lot 2344;
On petition of school P.T.A. officials of Barangay Navais, an ocular
inspection of the premises was made as a result of which a report
dated November 7, 1978 was prepared and submitted by 2nd Asst.
City Fiscal Serafin Abogado;
The plaintiffs had demolished the dike connecting the main canal
in plaintiffs' property with the canal running thru the school
premises toward 2344.

ISSUES
Whether or not an easement or servitude of water-right-of-way was
constituted on the property of the plaintiffs as servient estate in favor of
the L. Borres Elementary School land and nearby lands as dominant
estates.
COURTS RATIONALE ON THE ABOVE FACTS
The Court finds from the evidence that the main canal had been in
existence long before defendant Marcelino Florete, Sr. acquired ownership
of the land thru which the same passes from the Iloilo River up to the
premises of what is now known as the L. Borres Elementary School. This
fact was clearly brought to light by the testimonies of at least three
witnesses, including a member of the Maranon family from whom Florete,
Sr. acquired the land, in addition to the testimony of defendant Antonio
Sison, Barangay Captain of Barangay Navais where the subject canal is
situated. The Court, indeed, finds no reason to doubt the testimonies of
these witnesses not only because they ring true throughout but also
because the same emanate from reliable sources who had been actual
residents of the place, having had occasions to take their bath in the
same canal and with separate individual experiences incident thereto to
relate.
As heretofore stated, the main canal had long been in existence
even before plaintiff Marcelino Florete Sr. acquired ownership of the
fishpond of the Maranons thru which the same passes. This canal served
as passage of salt water from Iloilo River to the school fishpond and at the
same time, as outlet and drainage canal or channel of rainwater from the
school premises and adjacent lands that empties to the Iloilo River. An
easement or servitude of water-right of way had thus been

constituted on the property of the plaintiffs as the servient estate

in favor of the L. Borres Elementary School land and the nearby
lands as the dominant estates.
Even on the assumption that it was plaintiff Florete Sr. who
constructed the subject canal in 1961, an easement or servitude of waterright-of-way had nonetheless been constituted on subject property
because since then the same had been in continuous use for no less than
fifteen (15) years by the school fishpond as well as by the adjacent
lands.
A positive easement (Art 616, New Civil Code) had thereby been
created and plaintiffs have no right to terminate it unilaterally without
violating Art. 629 of the New Civil Code which provides:
Art. 629: The owner of the servient estate cannot impair, in any
manner whatsoever, the use of the servitude. Nevertheless, if by reason
of the place originally assigned or of the manner established for the use
of the easement, the same should become very inconvenient to the
owner of the servient estate, or should prevent him from making any
important works, repairs or improvements thereon, it may be charged at
his expense, provided he offers another place or manner equally
convenient and in such a way that no injury is caused thereby to the
owner of the dominant estate or to those who may have a right to the use
of the easement.
Plaintiffs, however, did not recognize, much less, follow the abovequoted law on easement. They closed the entrance of the canal and
demolished portions of the main dike thus impairing the use of the
servitude by the dominant estate. And by so doing, plaintiffs violated not
only the law on easement but also Presidential Degree No. 296 which
enjoins any person, natural or juridical, to demolish structures or
improvements which tend to obstruct the flow of water through
rivers, creeks, esteros and drainage channels.

For this canal did not serve merely to supply salt water to the
school fishpond but also serves as drainage charged or channel of
rainwater from adjacent lands to the Iloilo River. Before the canal was
closed, the residents had not experienced any flood in the area or in the
school premises. It was only after the canal was closed by plaintiffs on July
25, 1978, that the residents began to experience flood in the school
premises particularly in the month of August every year thereafter when
rainy season comes. Rainwater from adjoining areas accumulate at the
school premises without any chance of going out. Flood waters remain
stagnant for days and became filthy and veritable breeding place of
mosquitoes.
Plaintiffs claimed that they closed the canal because the residents
of the place threw waste matter and garbage into the canal and so the
waters therein were dirtied and rendered totally unsanitary for human
use, particularly for salt-making. But this claim was belied by defendants'
showing that what motivated plaintiffs to close the canal was the fact that
the residents engaged in salt-making using plastic bags and thus,
somehow, competed with plaintiffs in the production of salt in the area.
At any rate, regardless of what motivated plaintiffs into closing the
canal, the fact is that plaintiffs act ran roughshod over the aforequoted
provisions of law on easement and transgressed Presidential Decree No.
296.
SUPREME COURT RULING
WHEREFORE, premises considered, the assailed decision of the
respondent appellate court is hereby REVERSED and SET ASIDE, and the
judgment of the Regional Trial Court in Civil Case No. 12791 is hereby
REINSTATED.
SO ORDERED.