CRISPINA SALAZAR, PETITIONER, VS. GUILLERMO GUTIERREZ, AND DAMASO MENDOZA, RESPONDENTS.

Judgment was rendered by the Court of First Instance of Bataan (Civil Case No. 2269)
in favor of the plaintiff, Crispina Salazar, now
petitioner; on appeal by the defendants, Guillermo Gutierrez and Damaso Mendoza, the Court of Appeals reversed (CA- G. R.
No. 19489-R); and the plaintiff elevated the case to us for review by certiorari.

Crispina Salazar is owner of a piece of
land (Lot 436 of the Cadastral Survey of Balanga)
situated in Tuyo, Balanga, Bataan, covered by Transfer Certificate of Title 1578 issued by the Register of Deeds of the
said province, and acquired by her from the municipality
of Balanga on May 4, 1949.  The lot is bounded on the northeast by Lot 361, on the southeast by Sapang
Tuyo, on the southwest by Lot 435,
and on the northwest by Lot 433.

Lot 433 was registered under the Torrens system on July 23, 1923, with Original
Certificate of Title 2162.  Ownership
passed to respondent Guillermo Gutierrez by in­heritance in 1927, and Transfer Certificate of Title No. 1059 was issued
in his name on June 11, 1928.  No
annotation of any lien or encumbrance affecting the land appears on either
title.

Before the present controversy arose, Lot
436 and some of the surrounding estates, including Lot
433, were irrigated with water from Sapang Tuyo, a public stream, flowing through a
dike that traversed Lots 431, 434, 433 and 461. 
The portion of this dike that passed through Lot
433 branched near the boundary between this lot and Lot
434 into a canal which ran across the rest of Lot 433 up
to Lot 436.  It
was with the water flowing through this canal that Lot
436 used to be irrigated.

On February 24, 1953
respondent Damaso Mendoza, a lessee of Lot
433, demolished the said canal, thereby stopping the flow of the water and
depriving Crispina Salazar’s Lot
436 of the irrigation facilities which it had formerly enjoyed.  Her requests that the canal be re­built and
the water flow restored having been turned down, Salazar commenced the present
suit on March 2, 1953, pray­ing that these reliefs be
granted her by the Court and that the defendants be ordered to pay her actual
damages in the sum of P900, moral damages in the sum of P5,000,
and P1,000 for attorney’s fees, plus costs.

The trial court issued a writ of preliminary injunction as prayed
for by the plaintiff, ordering the defendants to restore the demolished portion
of the canal and to refrain from again demolishing the same pending trial, but
the writ was dissolved on March 9, 1953,
upon a counterbond filed by the defendants.  The latter answered with their
own counterclaim for damages, denied the sub­stantial averments of the
complaint and put up a number of affirmative defenses.

After trial, the Court of First Instance of Bataan,
finding that the demolished canal had been in existence for more than thirty
years and that the big dike from which it extended had been constructed for the
use of Lot 436 as well as several other lots belonging to different owners,
rendered judgment on April 10, 1956, ordering the defendants to restore at
their expense the canal in question, to connect it with the canal found in Lot
436 and to cause the corresponding annotation of the encumbrance on Transfer
Certificate of Title 1059 cowering Lot 433; and ordering the defendants to pay
the plaintiff the sum of P1,360 an­nually beginning the agricultural year
1956-1957 until the restoration of the canal, P4,700 as actual damages, P5,000 as moral damages, and P1,000 as
attorney’s fees, plus costs.

On July 26, 1963, the Court of Appeals reversed the decision of
the Court of First Instance and held that since the easement of aqueduct over
Lot 433 for the benefit of Lot 436 was a voluntary one, the same was
extinguished when Lot 433 was registered on July 23, 1923 and the corresponding
certificate of title was issued without the annotation of said easement as a subsisting
encumbrance.

The respondents have raised a preliminary procedural question,
alleging that Section 1 of Rule 46 (now Section 1 of Rule 45), requiring proof
of service of a copy of the petition upon the Court of Appeals, was not
complied with.  Such omission, however,
is not of jurisdictional import.  In an
appeal by certiorari upon a question of law, as distinguished from an
original petition for certiorari under Rule 65, the Court of Appeals is
merely a nominal party respondent.  The original
parties in the trial court are the same parties in the appeal.

The
main issue as set forth in the decision of the Court of Appeals is the nature of the easement of aqueduct claimed by the petitioner.  If voluntary, accord­ing to the said Court,
the easement was extinguished upon the registration of Lot 433 in 1923,
pursuant to Section 39 of Act No. 496, which provides:

“But if there are easements or other rights appurtenant to a parcel of registered land which for any reason have
failed to be registered, such easements or rights shall remain so appurtenant
notwithstanding such failure and shall be held to pass with the land until cut off or extinguished by the registration of the servient estate, or in any other manner.”
(underscoring supplied).

In arriving at the conclusion that the easement in question was
voluntary and not legal or compulsory, the Court of Appeals took into
consideration the pro­visions of Articles 557 and 558 of the Spanish Civil Code, now Articles
642 and 643 of the new Civil Code
respective­ly, as follows:

“ART. 642.  Any person
who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through
the intervening estates, with the obligation to indemnify their owners, as well
as the owners of the lower estates upon which the waters may filter or
descend.”

“ART. 643.  One desiring
to make use of the right granted in the preceding article is obliged:

“(1) To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended;

“(2) To show that
the proposed right of way is the most convenient and the least onerous to third
persons;

“(3)
To indemnify the owner of the servient estate in the
manner deter­mined by the laws and
regulations.”

Specifically the appellate court held that there is no evidence
to show that the petitioner has
complied with the three requisites laid down in Article 643 in order to entitle
her to claim a legal easement of aque­duct under Article 642.  It bears repeating that the finding thus
made, although apparently factual in charac­ter, is premised upon supposed
absence of evidence, and therefore is reviewable by
this Court if the premise is clearly contradicted by the record or unjustified
upon other considerations which logically lead to a different conclusion, but
which the decision under review did not take into account.

On the first requisite of Article 643 – that the petitioner must
prove that he can dispose of the water and that it is sufficient for the use
for which it is intended –
there is the statement of the trial court that the disputed
canal had been in existence since the Spanish regime, or at least prior to the
original registration of Lot 433 in 1923, and that of the Court of Appeals
itself confirmatory of this second alternative finding.  If, as thus found, the petitioner had been
using water from Sapang Tuyo
to irrigate Lot 436 since she acquired said lot in 1949, as the municipality of
Balanga had been
doing before her, and that such use had lasted continuously for at least
thirty years, it is a fair presumption that she had a
right to do so and that the water she could dispose of was sufficient for the
purpose.  Indeed it would be a
superfluity to require her to produce a permit from the proper authorities, for
even without it the right had already become vested both under Article 194 of
the Spanish Law of Waters and under Article 504 of the Civil Code, which
respectively state:

“ART. 194. 
Any person who has enjoyed the use of public waters for a term of
twenty years
without ob­jection on the part of the authorities or of any third
person, shall continue in its enjoyment, even though he may not be able
to show that he secured proper permission.”

“ART. 504.  The use of
public waters is acquired:

(1)  
By administrative concession;

(2)  
By prescription for ten years.

The extent of the rights and obligations of the use shall be that
established, in the first case, by the terms of the concession, and, in the second case, by
the manner and form in which the waters have been used.”

The third requisite of Article 643 of the Civil Code refers to
the matter of indemnity to the owner of the servient
estate.  As correctly pointed out by the peti­tioner, it would be nigh
impossible now to present actual proof that such indemnity has been paid,
considering the number of years that have elapsed since the easement had first
come into existence and the subsequent changes in ownership of the lots
involved.  It stands to reason, however,
that if the easement had continued for so long – in fact, not only before Lot
433 Was registered in 1923 bat for thirty years thereafter, until cut off by
the respondents in 1953 – the legal requirement in question must have been
complied with.

The other requisite of Article 643 is that “the proposed
right of way is the most convenient and the least onerous to third
persons.” The Court of Appeals stated that the petitioner has not established
this fact, and that “her own evidence reveals that her lot is abutting Sapang Tuyo on
its southern boundary, wherefrom she can easily and directly draw the water
necessary to irrigate her land.” 
This statement is an oversimplication.  Pro­ximity or abutment of a piece of land to
a stream does not necessarily carry with it the conclusion that water
may conveniently be drawn directly therefrom for
irrigation.  In the first place, the
petitioner has pointed out in her brief, without contradiction by the
respondents, that the portion of her land which abuts Sapang
Tuyo is a precipice.  Secondly, the trial court made an ocular
inspection of the premises and observed that the eastern and northeastern
portions of Lot 436 are lower than the southwestern,
western and north­western (the point where Lot 436
adjoins Lot 433) portions of the same. 
Finally, it would appear from the observation made by the same court
that the demolished canal is part of a system of conduits used to irrigate the
lands of the petitioner and the respondents as well as the surrounding estates
belonging to other owners, and that this system of conduits is of a
permanent nature.  The trial court’s
description bears repeating:

“At the ocular inspection conducted on September 22, 1953, it
was found that the eastern and northeastern portions of Lot No. 436 are lower
than the southern, western and northwestern portions of the same; that about
one-fourth (1/4) only of the lot is planted to palay and this palay is yellowish, scarce and could hardly merit attention
to produce any substantial quantity of palay; that this
palay is planted in the eastern portion of the same; that the palay planted on the land of
defendant Gutierrez and on the lot east of the land of the plaintiff is luxuriant, green and had all the earmarks of producing a
good harvest; that the ‘pinitak‘ on the northwestern
portion of the land of the plaintiff is higher than the rest of the land; that
on this portion is found a canal
about one and a half (1-1/2) meters deep which canal runs south and parallel to
the boundary line of Lot 436 owned by the plaintiff and Lot No. 435 and is one
and a half (1-1/2) meters from this boundary; that along the southern boundary
of Lot No. 433 that separates it from Lot No. 436 is a ‘minangon‘
or a dike and water flaws continuously from one ‘pinitak‘
to another of said Lot No. 433 up to a point between points ’15’ and ’14’ of
said lot as shown on Exhibit ‘A’ x x x that this water passes from one ‘pinitak‘
to another through openings made on the ‘pilapils‘ or
small dikes that separate the several ‘pinitaks‘ on
this Lot No. 433; that the western side of the canal that was demolished is located on the boundary line of
Lots Nos. 433 and 434 and this boundary line is higher and some trees are found
therein; that the new canal x x x
is short and the old canal from point ‘131’ to about point ‘7’ of Lot No. 433
on this exhibit is still in use
although it is not clean; that Lot No. 434 owned by Antonio Mendoza is
irrigated by two (2) pipes coming from Lot No. 431 and by a canal that comes
from Lot No. 431 and by a canal that
comes from the main irrigation canal located on the boundary line of these two
(2) lots 431 and 434; that this main irrigation canal is the canal that goes
through Lot No. 443 x x x
which canal ends farther east of Lot 448 x x x; that this canal begins from the dam farther west of
these Lots Nos. 431, 434, 433 and 436.

x x
x

The boundary line of the two (2) lots Nos.
433 and 434 shows, that it is a ‘minangon‘, a
dike.  It is extraordinarily high.  From this situation, it can be concluded that the canal along this boundary
line must be big.  To irrigate the
southern part of Lot No. 433 would not
require a big and permanent canal if the same was used to irrigate the
southern part of Lot No. 433.  Canal marked ‘W’ which is a substitute canal is small and shallow.  From the remnants of the old and demolished canal, it is safe to assume that the canal has been in
existence for a long time as shown by some big trees on the high ‘minangon‘.  If it
were to water only the southern part of the lot as claimed by the defendants, it would
have been the same in size as the new canal marked ‘W’ on Exhibit ‘A.’
The construction of the new canal marked ‘W’ on the exhibit is a feeble attempt
to justify the alleged purpose of the old canal, but this attempt at coverage is laid bare by the existence of the old canal that crossed Lot
No. 433 x x x.  Considering that the southern
portion of said lot is lower
than the rest of the same, the Court
believes that the openings on the dike of the old canal would be sufficient to let water flow to the southern portions of this
lot.  The western portion of this lot
could have been watered from the old canal (‘X’) or from the existing canal (‘Z’) on Exhibit ‘A’.  That being so, there is only one explanation why the old canal
(‘X’) is in
existence and that is for the use of Lot No. 436 and other lots farther east of
Lot No. 436.”

It is a reasonable
conclusion from the foregoing that the
demolished canal supplying water to Lot 436 of the petitioner was merely an extension of the system of conduits
established long ago, considering that in view of the topography of the area
and the proximity of the said lot to
the main dike in Lot 433 it was more convenient to make the connection
therewith than to draw water directly from Sapang Tuyo.  Article
118 of the Spanish Law of Waters allows the creation of a compulsory easement of aqueduct for the
purpose of establishing or extending an irrigation system, and there is nothing to the contrary in the
Civil Code.

In any case the
respondents are hardly in a position to avail of the registration of Lot 433 in
1923 without the corresponding registration of the easement on the title as an excuse to summarily terminate it thirty years thereafter.  The original registered owner allowed the
easement to continue in spite of such non?registration:  the least that can be said is that he either recognized its
existence as a compulsory servitude on his estate or voluntarily agreed to its
establishment and continuance.  And the
respondent Guillermo Gutierrez, as the
successor-in-interest to the said owner by inheritance, is not an innocent
third person who could plead the absence of annotation on the title.  Not only was he aware of the existence of the
easement when he inherited the property in 1927, but he likewise allowed it to
continue for twenty-six years after he acquired title.  He is bound both by the act of his
predecessor and by his own.

Wherefore, the decision of the Court of Appeals is
set aside, and that of the Court of First Instance of Bataan
affirmed, with costs against the respondents.

Concepcion, C.J., Reyes, Dizon, Zaldivar, Fernando, Barredo, and Villamor, JJ., concur.

Castro, J., on leave.

Teehankee, J., did not take part.