Case Digest: Javellana vs. IAC G.R. No. 72837 I April 17, 1989

FACTS:

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. 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.

In July 1978, Marsal & Co., Inc. closed the dike entrance of the main canal to the canal running across the L. Borres Elementary School premises to Lot 2344.   As a result to such closure, the premises of the school and its surrounding vicinty was flooded and that flood waters remain stagnant for days without the canal serving as the outlet of rain and flood water unto the river.

ISSUE:

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.

DECISION:

An easement or servitude of water-right of way had 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. An easement or servitude of water-right-of-way had been constituted on subject property because 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: “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 above-quoted law on easement.