JAVELLANA V. IAC- Positive Easement

When a positive easement is constituted, the servient owner is prevented from impairing the use of such by the dominant estate.

FACTS:

Marsal & Co., Inc., and Marcelino Florete, Sr. is the present owner of the land adjoining the Iloilo River up to the adjacent lot where the L. Borres Elem. School is located. There existed a main canal from the Iloilo River which passes through the Marsal property and thru a canal that traverses the school property going towards Lot 2344. Marsal & Co. 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 because the canal serves as outlet of rain or flood water that empties into the river. This prompted the school and barangay officials to complain to higher authorities about the closure of the canal. When Florete was about to bury a pipe in lieu of an open canal, he was prevented from doing so by the district supervisor, Javellana, thus he instituted a complaint for recovery of damages for allegedly denying his access to the use of the canal to his property.

The RTC ruled in favor of Javellana thus Florete appealed to the IAC which reversed the decision thus the case at bar.

ISSUE:

Whether or not an easement was established in favor of the school property

RULING: YES

A positive easement of water-right-of-way was constituted on the property of Florete as the servient estate in favor of the L. Borres Elementary School and the nearby lands as dominant estates since it has been in continuous use for no less than 15 years by the school fishpond as well as by the nearby adjacent lands.

As a positive easement, Florete had no right to terminate the use of the canal without violating Art. 629 of the CC which provides that “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.”

When Florete closed the entrance of the canal and demolished portions of the main dike it impaired the use of the servitude by the dominant estates.

Additional Facts:
> One witness almost drowned
> One witness saved a woman, who while picking shells fell into the canal
> 2 witnesses took a bath in the canal, 1 when he was still a child, the other when he was still single
> Canal is used by residents for salt-making using plastic bags, which is in competition with Marsal & Co. in the production of salt
> the canal is a source of salt water, it is fresh and clean since the tide changes from the Iloilo River while the fishpond is stagnant and polluted
> before the closure of the dikes, there were no floods in the vicinity
> tube to be buried: 10-inch rubber tube
> canal:
     o for the 1st 100 meters = 3 meters wide
     o 200 meters = 2 meters
> depth of canal:
     o high tide or rainy season = main canal = ½ meter; canal that traverses school = 2 meters
     o ordinary days = no water
> Florete only caused the canal to be deeper