Javellana vs.

Intermediate Appellate Court

GR NO. 72837
April 17, 1989

MAIN ISSUE: Whether or not the Marsal & Co. and Marcelino Florete Sr., as the owner of servient estate
impaired the use of the servitude making it liable to restore and reopen the dike entrance connecting the main
canal with the canal running thru the premises of L. Borres Elementary School, the owner of the dominant
estate, and to demolish any and all structures within the former’s property that impede the free flow of water to
and from the Iloilo River thru the said canals

SUB ISSUES:
1) Whether or not an easement or servitude of water right of way had been constituted on the property of
Marsal & Co. and Marcelino Florete, Sr. in favor of the L. Borres Elementary School and the nearby
lands
2) Whether or not Marsal & Co. and Marcelino Florete Sr. violated PD 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
ANALYSIS OF FACTS:

 Marsal & Co., Inc. is the present owner of the land adjoining the Iloilo River up to the adjacent lot
where the L. Borres Elem. School is located.
 Since years before when Florete, Sr., the then owner of the Marsal property, purchased the
aforementioned lot that is now known as Lot 2344, a main canal existed therein from the Iloilo River
cutting across the Marsal property down towards the L. Borres Elem School and thru a canal that travels
the school property. Later after his purchase of the said lot, he made the subject canal deeper up to his
land starting from his fishpond adjoining the school premises. The 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 the Iloilo River.
 However, Marsal & Co., Inc. and Florete, Sr. closed the dike entrance and later on demolished the
portions of the main dike connecting the main canal to the canal running thru the school grounds.
 This closure caused flooding in the premises of the school and its vicinity prompting the school and
barangay officials to complain to higher authorities about the closure of the canal.
 Meanwhile, when Florete, Sr. was about to bury a pipe in lieu of an open canal, he was prevented from
doing so by the district supervisor, Javellana.
 Thereafter, Marsal & Co., Inc. and Florete, Sr. instituted a complaint for recovery of damages for
allegedly being denied access to the use of the canal to his property.
CONCLUSION: SUB ISSUE

Yes. An easement or servitude of water right of way had been constituted on the property of Marsal & Co. and Marcelino
Florete, Sr. as the servient estate in favor of the L. Borres Elementary School and the nearby lands as the dominant estates.

 The 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 the Iloilo River.
 A positive easement had thereby been created.

CONCLUSION: MAIN ISSUE

Marsal & Co. and Marcelino Florete Sr., as the owner of servient estate impaired the use of the servitude making it
liable to restore and reopen the dike entrance connecting the main canal with the canal running thru the premises of
L. Borres Elementary School, the owner of the dominant estate, and to demolish any and all structures within the
former’s property that impede the free flow of water to and from the Iloilo River thru the said canals.

■ An easement of water-right of way had already been constituted on the property of the Marsal Co. as the servient
estate in favor of the L. Borres Elementary School premises and the nearby lands as the dominant estates.

■ Private respondents violated Art. 629 of the Civil Code when they closed the entrance of the canal and demolished
portions of the main dike thus impairing the use of the servitude by the dominant estates.

CONCLUSION: SUB ISSUE

Marsal & Co. and Marcelino Florete, Sr. violated PD 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.

 The canal also served as drainage canal or channel of rainwater from the adjacent land to the Iloilo River.