BIENVENIDO AMISTOSO, PETITIONER, VS. SENECIO ONG, EPIFANIA NERI & HON. PRESIDING JUDGE, ESTEBAN M. LISING OF THE COURT OF FIRST INSTANCE OF CAMARINES SUR, BRANCH VI, RESPONDENTS.

This is a Petition for Review on Certiorari of the Order of the
defunct Court of First Instance of Camarines Sur, Branch VI dated
January 14, 1981, dismissing its Civil Case No. p-153, for lack of
jurisdiction.

The pertinent antecedents are as follows:

On July 27, 1978, petitioner as plaintiff, filed before the then
Court of First Instance of Camarines Sur, a complaint for Recognition of
Easement with Preliminary Injunction and Damages. The complaint which
was docketed in the aforesaid Court as Civil Case No. p-153 among others
alleged, that plaintiff (now petitioner) and defendant Epifania Neri
(one of the herein private respondents) are the owners of adjoining
parcels of agricultural land situated in Cauayanan, Tinambac, Camarines
Sur; that an irrigation canal traverses the land of defendant Neri
through which irrigation water from the Slimod River passes and flows to
the land of the petitioner for the latter’s beneficial use; and that
respondent Neri, owner of the land on which said irrigation canal exists
and Senecio Ong, the cultivator of the said property, despite repeated
demands refused to recognize the rights and title of the petitioner to
the beneficial use of the water passing through the aforesaid irrigation
canal and to have petitioner’s rights and/or claims annotated on the
Certificate of Title of respondent Neri….. Hence, the filing of the said
complaint.

In their Answer, private respondents denied the existence of any
right on the part of the petitioner to the use of the canal mentioned in
the complaint nor any contract, much less any deed or encumbrance on
their property and assert that they have not performed any act
prejudicial to the petitioner that will warrant the filing of the
complaint against them. By way of affirmative and special defenses,
private respondents alleged that petitioner’s complaint states no cause
of action and that the Court has no jurisdiction over the same.

Issues having been joined, trial was held. After petitioner has rested
his case by a formal offer of his testimonial and documentary evidences,
private respondents instead of presenting their evidence, filed a
motion to dismiss. In the said motion, respondents contend that the
instant case, involving as it does development, exploitation,
conservation and utilization of water resources falls with­in the
exclusive jurisdiction of the National Water Resources Council pursuant
to P.D. NO. 424, Section 2(b) and Section 88 thereof. Acting on private
respondents’ motion, respondent Judge dismissed petitioner’s complaint
for lack of jurisdiction in an Order dated January 14, 1981. The
pertinent portion of that Order reads as follows:

“x x x The basis of the motion to dismiss are the provisions of
Presidential Decree No. 424 and the Water Code known as Presidential
Decree No. 1067. In opposing the motion to dismiss, plaintiff contends
that the present action does not involve water dispute and that since
the present action was filed before the court prior to the effectivity
of the Presidential Decree No. 424, it is the old law on the matter that
should be applied. These contentions of the plaintiff are with­out
merit. The complaint belies the plaintiff’s contention. Allegations in
the complaint are explicit regarding the claim of the right of plaintiff
over the water passing through his land. The right over irri­gation
water not having been shown as established or vested or that said vested
right, if any, has not been alleged to be registered in accordance with
the water code, the provisions of Presidential Decrees 424 and 1067
shall govern. As stated by the Supreme Court in the case of Abe-Abe vs.
Manta, No. L-4827, May 31, 1979, 90 SCRA 523, to wit:

“It is incontestable that the petitioner’s immediate recourse is
to ventilate their grievance with the National Water Resources Council
which, as already noted, is the administrative agency exclusively vested
with original jurisdiction to settle water rights disputes under the
water code under Presidential Decree No. 424.

The code assumes that it is more expeditious and pragmatic to entrust to
an administrative agency the settlement of water rights disputes rather
than require the claimants to go directly to the court where the
proceedings are subject to unavoidable delays which are deterimental to
the parties x x x

That jurisdiction of the Council under Section 2(b) of Presidential
Decree No. 424 is reaffirmed in Sec. 88 of the Water Code and in Section
3(d) thereof which provides that ‘the utilization, exploitation,
development, conservation and protection of water resources shall be
subject to the control and regu­lation of the government through
Council.”

Failing to obtain a favorable reconsideration of the Order of dismissal,
petitioner now comes before Us through the instant petition contending:

(1) That the case at bar is not to settle any water dispute between
the parties but a complaint which calls purely for a determination of
the right of the plaintiff to have an established right amounting to an
easement annotated on the certificate of title of the defendant, hence
the question is judicial which may be taken cognizance of by the
respondent court;

(2) That since the case was filed on July 26, 1972, which was before
the effectivity of P.D. NO. 424, therefore even if defendant’s
contention is correct – that the case involved water rights dispute –
the old law on water applies and not the present water code of the
Philippines of 1976; otherwise, the Court shall lose jurisdiction by
subsequent legislation contrary to the well-settled rule that once
jurisdiction is acquired it cannot be lost;

(3) That the herein defendant can no longer raise the question of
plaintiff’s right to the beneficial use of irrigation water since the
right to use had already been determined, decided and laid to rest when
the Department of Public Works, Transportation and Communications
awarded petitioner Water Rights Grant after complying with all the legal
requirements such as publication, payment of fees, survey,
investigation, etc.; and

(4) That the issue in the case at bar which was erro­neously
overlooked by the respondent Judge does not in­volve a determination of
the right of the parties to the utilization, conservation and protection
of the parties’ respective water rights, hence it does not fall within
the competence nor jurisdiction of the National Water Resources Council.

In a Resolution promulgated on August 11, 1982, we required the
respondents to comment on the petition. Private respondents’ COMMENT was
filed on March 2, 1984. Petitioner’s REPLY thereto on the other hand
was filed on May 10, 1984.

We considered the COMMENT as an Answer and gave due course to the petition.

Private respondents contend that the assailed order of dismissal was in
order since a mere cursory reading of the complaint shows that
petitioner claims for the right to use water coming from the Silmod
River and prays that his right to the utilization thereof be respected
and not be disturbed and/or obstructed by the respondents. On its face
then, the dispute is on the use, conservation and protection of the
right to water either by the petitioner or by the private respondents.
The annotation of the alleged encumbrance on the title of the private
respondent is merely the relief prayed for on the basis of the claim to
the use and protection of water passing through the land of the
respondents. And since the controversy hinges on the right to use and
protect the water from the Silmod River that passes on the land of the
private respondents to the petitioner’s property, the proper authority
to determine such a controversy is the National Water Resources Council
which is vested with exclusive jurisdiction over such question pursuant
to P.D. NOS. 424 and 1067.

We find the petition impressed with merit.

Private respondents’ insistence that what is involved in the instant
case is the right to use, exploit and convey water is controverted by
the “STIPULATION OF FACTS” entered into between them and the petitioner
in the court below which was approved in an Order dated February 20,
1975, the pertinent portion of which reads as follows:

“1. That there exists an irrigation canal for the use of the
defendants diverting water coming from the Silmod River, Tinambac,
Camarines Sur, passing on the ricelands of the latter to the plaintiff’s
land irrigating the land of the latter, although plaintiff claims it
existed since 1952 up to the present, but disputed by the defendants.

2. That the plaintiff has an approved water rights Grant issued
by the Department of Public Works, Transportation and Communications, which plaintiff claims it for beneficial use to irrigate their land from the Silmod River and defendants dispute said claim.

3. That as of now, defendants have no approved Water Rights Grant
issued by the proper authorities for the use of the water for irrigation
purposes from the Silmod River. However, defendants have a pending
application for Water Rights, the water of which shall pass thru a
different irrigation canal.

4. That one of the defendants’ predecessors-in-interest, Abundio
Barallas had a written contract with the plaintiff, which defendants
claim easement of aqueduct. Defendants are questioning the legality,
enforceability and validity of such contract.

x        x          x          x          x

6. That defendants re­fused to surrender their Transfer
Certificate of Title of her land for purposes of annotation of the
contract, allegedly an easement of aqueduct, on the ground that she
questions the validity, enforceability, legality and therefore they are
not bound by the same.”

From the foregoing stipulations, private respondents admit that
petitioner, then plaintiff, has an approved Water Rights Grant issued by
the Department of Public Works, Transportation and Communications.
Private respondents, however, contend that the said grant does not
pertain to the beneficial use of irrigation water from Silmod River. The
records, however, do not show any other irrigation water going to
petitioner’s property passing thru respondents’ lot aside from that
coming from the Silmod River. Respondents’ controversion of petitioner’s
right to irrigation water specifically from Silmod River is undoubtedly
a lame denial.

Aside from this admission, the record clearly discloses an approved
Water Rights Grant in favor of petitioner. Dr. Bienvenido V. Amistoso,
which was approved on November 13, 1973 by the Acting Secretary of
Public Works and Communications, David M. Consunji. (Exh. I) The grant
was made three (3) years before the promulgation of P.D. 1067 on
December 31, 1976, known as the Water Code of the Philippines, which
revised and consolidated the laws governing ownership, appropriation,
utilization, exploitation, development, conservation and protection of
water resources thereby repealing among others, the provisions of the
Spanish Law of Water of August 3, 1866, the Civil Code of Spain of 1889,
and the Civil Code of the Philippines on ownership of water, easement
relating to water and of public water and acquisitive prescription on
the use of water which are inconsistent with the provisions of said Code
(Art. 10, P.D. 1067).

The water rights grant partakes the nature of a document known as a water permit recognized under Article 13 of P.D. 1067, which provides:

“Article 13. Except as otherwise herein provided, no person,
including government instrumentalities or government-owned or controlled
corporations, shall appropriate water without a water right, which
shall be evidenced by a document known as a water permit.

Water right is the privilege granted by the government to appropriate and use water.”

As to the validity of the WATER RIGHTS GRANT of Amistoso upon the
promulgation of P.D. 1067 on December 31, 1976, the governing provision
of law is found in the Transitory and Final Provisions of P.D. 1067. It
falls under “acts and contracts under the regime of old laws”. Article
97 provides, thus:

“Article 97. Acts and contracts under the regime of old laws, if
they are valid in accordance there­with, shall be respected, subject to
the limitations established in this Code. Any modification or extension
of these acts and contracts after the promulgation of this Code, shall
be subject to the provisions hereof.”

It may be observed that the WATER RIGHTS GRANT of Amistoso does not fall
under “claims for a right to use water existing on or before December
31, 1974” which under P.D. 1067 are required to be registered with the
National Water Resources Council within two (2) years from promulgation
of P.D. 1067, otherwise it is deemed waived and the use thereof deemed
abandoned. It is no longer a mere “claim” inasmuch as there was already a
GRANT by the Secretary of Public Works, Transportation and
Communications (the official then authorized to issue said grant) on
November 13, 1973 after complying with all the requirements then
prescribed by law for such grant.

The grant contradicts the erroneous findings of the respondent Judge,
and incontrovertibly entitles petitioner to the beneficial use of water
from Silmod River. That right is now a vested one and may no longer be
litigated anew so as to bring petitioner’s case within the jurisdiction
of the National Water Resources Council. To resurrect that issue – –
right to the use of irrigation water from Silmod River – – will be
violative of the rule on res judicata which also applies with
equal vigor and effect to quasi judicial tribunal (Bril­lantes vs.
Castro, 99 Phils. 497, Ipekdjian Merchandising, Inc. vs. Court of Tax
Appeals, 9 SCRA 72, September 30, 1963).

As correctly postulated by the petitioner, the court a quo is
not being asked to grant petitioner the right to use but to compel
private respondents to recognize that right and have the same annotated
on respondent Neri’s Torrens Certificate of Title. Resort to judicial
intervention becomes necessary because of the closure made by the
respondents of the irri­gation canal thus depriving the petitioner to
continue enjoying irrigation water coming from Silmod River through
respondents’ property. The interruption of the free flow of water caused
by the refusal to re-open the closed irrigation canal constituted
petitioner’s cause of action in the court below, which decidedly do not
fall within the domain of the authority of the National Water Resources
Council.

Respondents, however, rely very heavily on the dictum laid down in the
Abe-Abe vs. Manta, No. L-4827, May 31, 1979, 90 SCRA 524, wherein it was
held that –

“It is incontestable that the petitioner’s immediate recourse is
to ventilate their grievance with the National Water Resources Council
which, as already noted, is the administrative agency exclusively vested
with original jurisdiction to settle water rights disputes under the
water code and under Presidential Decree No. 424.

The Code assumes that it is more expeditious and pragmatic to entrust to
an administrative agency the settlement of water rights disputes rather
than require the claimants to go directly to the court where the
proceedings are subject to unavoidable delays which are detrimental to
the parties x x x

That jurisdiction of the Council under Section 2(b) of Presidential
Decree No. 424 is reaffirmed in Section 88 of the Water Code and in
Section 3(d) thereof which provides that ‘the utiliza­tion,
exploitation, development, conservation and protection of water
resources shall be subject to the control and regulation of the
government through the Council.”

The said pronouncement, however, finds no application to the instant
case for in there, both petitioners and respondent have no established
right emanating from any grant by any governmental agency to the use,
appropriation and exploitation of water. In the case at bar, however, a
grant indubitably exists in favor of the petitioner. It is the enjoyment
of the right emanating from that grant that is in liti­gation.
Violation of the grantee’s right, who in this case is the petitioner, by
the closure of the irrigation canal, does not bring the case anew
within the jurisdiction of the National Water Resources Council.

WHEREFORE, the Order of the Honorable respondent Judge of January 14,
1981, is hereby SET ASIDE. Private respondents are hereby ordered to
RECOGNIZE petitioner’s EASEMENT of water and to surrender to the
Register of Deeds of Camarines Sur the owner’s duplicate Transfer
Certificate of Title No. 14216 covering respondent Epifania Neri’s
property so that petitioner’s right to the beneficial use of said
irrigation canal and water passing through the same may be annotated
thereon.
v
SO ORDERED.

Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.

Aquino, J., concur in the result. Private respondents should REOPEN the irrigation canal which they closed.

Abad Santos, J., see separate opinion.

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SEPARATE OPINION

ABAD SANTOS, J.:

The petitioner’s right to establish an easement of aqueduct over the
lands of the private respondents appear to be indubitable in the light
of the facts given in the main opinion. However, before the easement of
aqueduct can be formally established certain requirements must be
observed. I refer to the provisions of Articles 642 and 643 of the Civil
Code. Among other things, the petitioner must show that the situation
of the aqueduct is the most convenient and the least onerous to third
persons and he should pay indemnity to the owners of the servient
estates. The case should be remanded to the trial court which should
adjudicate on these matters before the petitioner’s easement of aqueduct
is annotated on the certificates of title.