ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA AND ANTONIO SISON, PETITIONERS, VS. HON. INTERMEDIATE APPELLATE COURT, 4TH CIVIL CASES DIVISION, MARSAL & CO., INC., AND MARCEL…

Before Us is a Petition for Certiorari to review the
Decision^[1]
dated August 14, 1985 promulgated by respondent intermediate Appellate Court in
AC-G.R. C.V. No. 03781 which set aside the decision^[2]
rendered by the Regional Trial Court, 6th
Judicial Region, Branch XXVI, Iloilo City, dated December 15, 1983 in Civil
Case No. 12791.

The case at bar arose from a complaint for recovery of damages
filed by Marsal & Co., Inc. and Marcelino Florete,
Sr. (private respondents herein) against defendants Jose C. Hernani,
Ester J. Javellana, Rolando Demafiles,
Cesar Crusada and Antonio Sison
for allegedly denying plaintiffs’ access to, and use of a canal leading to
plaintiffs’ property and to enjoin the City Mayor and City Engineer of Iloilo
City from demolishing the existing structures within plaintiffs’ property
serving as dike entrance gate to said canal situated at Barangay
Navais, Mandurriao, Iloilo
City.  Before the pre-trial conference
the complaint as against the
City Mayor and City Engineer, was dismissed at the instance of plaintiffs on
the ground that said defendants had agreed not to demolish the existing
structures in plaintiffs’ property during the pendency
of the action.

At the pre-trial conference, on June 5, 1979 the parties stipulated:

“xxx (1) that plaintiff 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 at Barangay Navais, Mandurriao, Iloilo; (2)
that 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 2-344; (3) that sometime in
July, 1978, plaintiffs closed the dike entrance of the main canal to the
canal  running across the L. Borres Elementary School premises to Lot 2344; (4) that on
petition of school P.T.A. officials of Barangay Navais, an ocular
inspection of the premises was made as a result of which a report dated November 7, 1978 was prepared
and submitted by 2nd Asst.  City Fiscal Serafin
Abogado; (5) that before 1971, there were no houses
standing within the school compound and premises of L. Borres
Elementary School; (6) that at present, there are 15 to 16 houses in the
said school compound one of which is the house of the barangay captain of Barangay
Navais; (7) that some of those who signed the
petition (Exh. “7”) are not residents or occupants of the houses within the
school compound; (8) that the photograph (Exh.
“A”) is the aerial photograph of the premises in question showing the location of
the L. Borres Elementary School, the properties of
the plaintiffs, the Iloilo River and the Borres
property; (9) that the plaintiffs had demolished the dike connecting the main
canal in plaintiffs’ property with the canal running thru the school premises
toward 2344; and (10) that defendant
Director Jose C. Hernani had invited plaintiff Marcelino Florete, Sr. for
conference concerning the complaint of the residents of Barangay
Navais on July 28, and 31, 1978 as per Exhs. “9” and “10.” (pp. 35-36, Rollo)

The issues as defined by the parties are:

“(1) Whether
or not the main canal and the canal traversing the premises of the L. Borres Elementary School going towards Lot 2344 existing
only beginning 1961 as claimed by the plaintiffs or since time immemorial as
contended by the defendants; (2) Whether or not it was plaintiff Marcelino Florete, Sr. who had
constructed the main canal as well as the canal running thru the premises of
the L. Borres Elementary School to Lot 2344; (3)
Whether or not the closing of the dike entrance connecting the main canal with
the canal running thru the school premises caused the flooding of the premises
of L. Borres Elementary School and its vicinity; (4)
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; (5) Whether or not defendants
acted in their respective private or official capacities in dealing with the
problem related to the canals in question; (6) Whether or not the defendant
Ester Javellana had denied plaintiffs the use of the
canal running from the main canal thru the school premises to Lot 2344 of the
plaintiffs: (7) Whether or not the demolition or closure by plaintiffs of the
entrance-dike connecting the main canal with the canal running thru the L. Borres Elementary School preventing the free flow of water
to and from the school premises and vicinity violates the provisions of
Presidential Decree 296; and (8) Whether or not either party may be held liable
to the other for damages.” (Rollo, pp.
35-37)

After due trial, judgment was rendered by the trial court, the dispositive portion reading as follows:

“WHEREFORE, judgment is hereby rendered dismissing
plaintiffs’ complaint.

“On defendants’ counterclaim, the plaintiffs are hereby
ordered to restore and reopen the dike entrance connecting the main canal with
the canal running thru the premises of L. Borres
Elementary School and to demolish any and all structures within plaintiffs’
property that impede the free flow of water to and from the Iloilo River thru the said canals.

“Further, plaintiffs Marsal &
Co., Inc. and Marcelino Florete,
Sr. are hereby ordered to pay, jointly
and severally, each of the defendants, Jose C. Hernani,
Ester J. ­Javellana, Rolando Demafiles,
Cesar Cruzada and Antonio Sison,
the following sums, to wit: (1) P10,000.00 for moral damages; (2) P2,500.00 for
exemplary damages and (3) P2,500.00 for and as attorney’s fees of the total sum
of P15,000.00 each, plus costs.

“SO ORDERED.” (p. 46, Rollo)

Not satisfied with said judgment, plaintiffs appealed to the
Intermediate Appellate Court which rendered the assailed decision, its dispositive portion stating as follows:

“WHEREFORE, finding the decision appealed from not
consistent with the facts and the
law applicable, the sane is hereby set aside and another one entered –

“1.     Granting the issuance of the writ of
preliminary injunction sought in the complaint to become permanent upon the
finality of this decision;

“2.     Ordering the defendants-appellees
to respect plaintiffs’ rights and to refrain from demolishing and/or causing
the demolition of the dikes built by plaintiff (Florete,
Sr.) on his property;

“Costs de officio.

“SO ORDERED.” (pp. 57-58, Rollo)

Petitioners contend that the decision of the Appellate Court is
contrary to law, its conclusions based entirely on speculations and conjectures
and there is grave abuse of discretion in that the findings of fact are without
competent evidence to support them. 
Petitioners argue that the respondent Appellate Court erred in holding:

“I

That the canal in question was built by plaintiff-appellant
purposely to make water available to its own Lot 2344.  (Decision,
p. 8)

“II

That the plaintiff-appellant is the one that has the right of
easement upon the lot occupied by the barrio school.  Plaintiff-appellant is thus the dominant
estate and not the L. Borres Elementary School. 
(Decision, p. 8)

“III

That the school, in violation of the said easement, allowed
other parties to use the canal for salt production in competition with the salt
business of plaintiff-appellant
which is conducted in Lot 2344.  (Decision, p. 8)

“IV

That the canal which traverses plaintiff’s property never benefitted the
school.  It was only after
plaintiff built the canal
starting from its fishpond
up to its other property that the
school benefited from the water coming from the river.  (Decision,
p. 10)

“V

That aside from the plaintiff’s property, there is another
parcel of land which is more than adequate to provide the drainage sought by
the defendants and this is the
Borres property.” (Decision, p. 10)

The petition is worthy of consideration.  In the Appellate Court’s decision, it is
noted that said court relied heavily on
the findings of facts of the trial court even to the extent of quoting such findings in its decision in
support of its ruling.  However, the
conclusions reached by both courts were different.  Petitioners now question the correctness of
the conclusions drawn by the respondent Court of Appeals from the proven facts enumerated by the trial court.  This
determination as to the
correctness of the conclusions drawn from the pleadings is a question of law which this Court is authorized to pass
upon.  There is no question of
fact here because the facts are admittedly proven.  Said facts are reproduced hereunder:

“The Court finds from the evidence that the main canal had been in existence
long before defendant Marcelino Florete,
Sr. acquired ownership of the land thru which the same passes from the Iloilo
River up to the premises of what is now known as the L. Borres Elementary
School.  This fact was clearly brought to light by
the testimonies of at
least three witnesses, including a
member of the Maranon family from whom Florete, Sr. acquired the land, in addition to the
testimony of defendant Antonio Sison, Barangay Captain of Barangay Navais where the subject canal is situated.

“The Court, indeed, finds no reason to doubt the
testimonies of these witnesses not only because they ring true throughout but
also because the same emanate from reliable sources who had been actual
residents of the place,
having had occasions to take their bath in the same canal and with separate
individual experiences incident thereto to relate.

“Severo Maranon,
a public school teacher and one of the children of the late Buenaventura Maranon, a co-owner of the fishpond purchased by plaintiff Florete, Sr. testified that as early as 1948, when he was about 6 years old, he already
knew the subject canal that passes
thru their fishpond at Barangay Navais
from the Iloilo River towards the premises of the school.  On one occasion in 1954, while taking a bath in this
canal when still a young boy, he
nearly drowned, reasons for which he has not forgotten the said canal.

“Another witness, Ignacio Gencianeo,
75, a former employee of
the Bureau of Public Highways, testified that when he was still single, being a
resident of Barangay Navais,
he used to take a bath in
the canal near the Iloilo River which is deeper than the other portions.  He recalled an incident where a woman, named Toribia Tajaon, while picking
shells at the sides of the
dikes, fell into the canal and nearly got drowned had he not helped her.  He last took a bath in the canal in 1937
before he got employed at the Bureau of Public Highways.

“Witness Gencianeo also testified
that he was then the Barrio Captain of Navais when
the Barrio School
was constructed in 1940 on the
land owned by Lucas Borres.

“Francisco Regacho, 56,
testifying for the defendants, declared that in 1948, his house was located
beside the canal near the Iloilo
River and the land
thereat was then owned by Buenaventura
Maranon.  When the barrio school was constructed in 1940,
he worked filling sand on the school site. 
He was able to lease the school fishpond from 1973 to 1977.  This fishpond draws its supply of salt water
from the canal coming from the Iloilo
River.  He had previously worked this main canal in
1948 as part of his job in the fishpond of Buenaventura
Maranon fixing
its dikes in order to make water flow freely towards the fishpond of the Maranon family.

“Witness Regacho further declared
that when defendant Marcelino Florete,
Sr. became owner of this Maranon
fishpond, he was able to work on this canal where he dug the canal deeper up to
Florete’s land. 
He testified that during high tide, the water in the canal was only
about 1/2 meter deep and there was no water during low tide and so Florete made the canal deeper.

“Regacho also testified that
there are two canals within the school premises, one going towards the land
of Florete
and the other to the land
of Mirasol.  These two canals met at the place where Florete closed the canal. 
The canal going towards Florete’s land and that to Mirasol’s
land serve to empty rainwater to the Iloilo
River.  He further confirmed that the school fishpond
has no other source of salt water except from the canal that connect to the
main canal that starts from the Iloilo
River.

“For his
part, defendant Antonio Sison, 54, testified that he
was born in Barangay Navais
and has been its barangay captain since 1954
continuously up to the present.  He first
noticed the existence of the
canal in 1933 when he reached the age of reason at the age of 8 years, said
canal being about 300 meters long from the Iloilo River going towards the
premises of the barrio school and to the land now known as Lot 2344 owned by Marcelino Florete.  He also used to take a bath in this canal
when still a small boy.

“Defendant Sison further declared that the brothers
Pedro and Buenaventura
Maranon were
then the owners of the fishpond along which the canal runs starting from the Iloilo River
towards the school premises when the Maranons sold
the land to Florete sometime in 1959.  Florete was not the
one who constructed the canal but only made the same deeper.

“This construction of Florete
took place in 1961 when Sison was also the barangay captain.  He
recalled Francisco Regacho was one of those who worked in making the canal
deeper at the instance of Florete and that no
employee from the City Engineer’s
Office inspected the canal
during its repair undertaken by Florete and where
Alfredo Emboltorio, Florete’s
overseeer and not Modesto Emboltorio,
as the one who managed the work in the canal.

“Defendant Sison went to see
Pedro Maranon, who was once a co-owner of the land
where the main canal passes, to request him to testify but the latter begged
off by reason of his health and old age and, instead, executed an affidavit dated May 14, 1979 (Exh. “8”) certifying to the effect that
“since before the war until we sold the said land to Marcelino
Florete, there exists a canal from the Iloilo River
cutting across our property down towards the lot where the school is located and
thru a canal that traverses the school premises.” (par. 4, Exh. “8”).

“It is thus clear from the testimonies of defendants’
witnesses that the main canal starting from the Iloilo River and the canal
traversing the premises of the L. Borres Elem. School
going toward Lot 2344 existed long before defendant Florete,
Sr. acquired ownership of the land of the Maranons
and that, if at all, Florete merely caused to be made
deeper that portion traversing the school premises.

“To less than
the defendants’ evidence itself proved the existence of the main
canal.  Thus, in his letter dated June 26, 1961 embodied in
Resolution No. 715 dated June
27, 1961 of the Municipal Board of the City of Iloilo
(Exh. “B”) defendant Florete
Sr. asked that he be
allowed to build a canal within the premises of the barrio school up to his Lot
2344.  It is not, therefore, a permit to
build a canal from the Iloilo
River for otherwise, Florete would have so stated in his said letter to the
Board.  This is so because there already
existed a main canal from the Iloilo
River.  The canal traversing the school was likewise
then already existing but not so deep that Florete
wanted it constructed to permanent.  And
in making this canal deeper, he started
not from the Iloilo
River but from his
fishpond adjoining the school premises towards his Lot
2344.  Florete
testified thus:

“Q. (Court) – From what point
did you start?

A     From
our fishpond traversing the Borres Elementary and
then going to our lot.” (TSN, July 5, 1979, page 22).

“Defendants presented in evidence a blueprint copy of the
Cadastral Map. B.L. No. 3 (Exh. “F”) to
show that no natural waterway or creek existed in the premises that connected the Iloilo
River to the fishpond
premises.  But this piece of evidence was rendered without any probative value when plaintiffs also
presented Teodoro Simpas,
Chief of the Surveys Division of the Bureau of Lands, Region IV, who testified
that creeks and esteros are delineated in the
cadastral map only if they are five (5) or more meters wide and, even less than five (5) meters wide, if there is
continuous flow of water is to be determined by the surveyor who made the
survey.

“Here, it has been duly established that the canal in
question starting from the Iloilo River is only about 3 meters wide for the first 100 meters long and then
measures about 2 meters wide until it reaches Lot 2344 with a length of about
200 meters.  And it has been shown that
salt water coming from the Iloilo
River flows in the
canal during high tide where the water in the main canal reaches about one-half
meter and about two (2) feet in the canal that traverses the school
premises.  In ordinary days, no
water flows in the canal that cuts across the school premises.  This explains why the canal in question was
not indicated in the cadastral map during the 1913 survey.  The canal is less than 5 meters wide and did not have a
continuous flow of water except during high tide and during rainy season where
it serves as drainage and empties flood waters into the Iloilo River.

“Defendants’ closure of the dike’s entrance connecting the
main canal with the canal running thru the school premises, therefore, caused
the flooding of the premises of the L. Borres
Elementary School and its vicinity.  This
is so because during rainy season, said canal also serves as outlet of rain or
flood waters that empties to the Iloilo
River.  Witnesses Ignacio Gencianeo,
Francisco Regacho, Severo Maranon and Barangay Captain
Antonio Sison were unanimous in declaring so.

“In his attempt to show that the closing of the dike entrance of the canal did not cause
the flooding of the school premises and its vicinity, plaintiffs’ witnesses,
Modesto Emboltorio, declared that flood in the school fishpond
immediately disappears because water recedes to the Borres
property.  But it has been shown that the
adjacent Borres property is higher in elevation compared to the school
premises such that water in the school premises cannot flow towards that
area.  And because water has no other way
out except thru the canal, the school premises and its vicinity get flooded
once it rains and flood waters remain stagnant for days as shown by the
photographs exhibits “3” and “3-A” taken on August 24, 1978
and Exhibits “10” and “10-A” taken on August 15, 1979.  The said photographs Exhibits “10”
and “10-A” belied EmboItorio’s testimony
that there were no flood waters in that area when he testified in Court in the
morning of August 14, 1979.

“That the premises of the school and its vicinity were flooded when it rained during
the rainy season of 1978
immediately after the closing of the dike entrance of the canal is further
shown by the report (Exh. “4”) dated September 3, 1978 submitted
by Carlos G. Brasileno, Asst. Complaint & Acting
Officer, Barangay
City secretariat and
the 6th Indorsement (Exh.
“1”) dated November
7, 1978 of 2nd Asst.
City Fiscal Serafin L. Abogado.  These two officials were with the government
teams that conducted ocular inspection of the place upon complaint of the
residents therein and they actualy saw for themselves
the flooded situation of the place caused by plaintiffs’ closure of the dike
entrance of subject canal.

“To be sure, the defendants acted in their official
capacities in dealing with the
problem related to the canals in question.  It has been sufficiently established that the
school fishpond gets its supply of salt water directly from the Iloilo
River passing thru
the canal that traverses the school premises. 
Likewise, the residents of the place produce salt thru the use of
plastic sheets using salt water drawn from the canal.  Salt water in this canal is fresh and clean
as the tide changes from the Iloilo
River unlike in the
fishpond nearby which is stagnant and polluted and not suitable for salt-making.

“The closure of the dike entrance of the canal deprived the school
fishpond as well as the residents of the place of salt-water and placed the
premises of the school and the surrounding vicinity in danger of being flooded when it rains so that the
school officials, the defendants Ester Javellana, as
district supervisor, Cesar Cruzada as head teacher
and Rolando Demafiles as practical arts teacher
and the barangay captain, Antonio Sison
only did what were incumbent upon them to do as such school and barangay officials
when they complained to higher authorities about the plaintiffs’ closure of the
canal in question.

“indeed, there is no showing that the defendants school officials were motivated by
their own personal interests when they complained against plaintiffs’ action vis-a-vis the canal. 
Their effort were all directed towards the benefit of the school as well as for the school children who, in
one way or another, had been adversely affected by the closure of the
canal.  These officials did not act
privately for themselves but for public good and public interest.  They expected no personal benefit in return.

“The same is true with the defendant barangay
captain Antonio Sison who merely complied with his
duty extending assistance to the residents of bringing their complaint to the authorities
concerned.  It was his duty to attend to the needs and
problems of his barangay and its residents.  The closure of the canal did not only deprive
the residents of salt water for salt-making but also posed danger to them as, in fact, during the ensuing rainy days
in August of 1978, the place was flooded thus endangering the health and safety of the residents therein.

“Then, too, defendant Col. Jose Hernani
only did his duty as head
of the Office of Civil Defense in attending to the complaint of the residents
of the place.  His office has
jurisdiction over cases of calamity, flood and the like such that it was but proper, nay
obligatory, on his part to act on their complaint against the closure of the canal that caused flood in Barangay Navais.

“The fact is that plaintiffs are without any justifiable reason to close the
canal.  Defendants advanced that the district supervisor,
defendant Ester Javellana, wrote Marcelino
Florete Sr. a letter allegedly denying his use of the
canal that traverses the school premises reason for which he closed the dike entrance and built an underground canal on the other side of his property going to his Lot 2344.  But defendant Javellana
explained that there was no such denial. 
What she meant when she wrote the letter to Marcelino
Florete, Sr. was that plaintiffs could not lay pipes
underneath the canal.  Defendant Ester Javellana testified thus:

“Q-  Could you inform the Hon. Court Mrs. Javellana
what impelled you to write Mr. Florete this letter?

A-    My
Head Teacher informed that they were going to lay or buy a 10 inch pipe in the
canal which crosses the school that canal to my office one morning Feb.
22.  Industrial Arts Teacher Mr. Rolando Demafiles and the Head Teacher, Mr. Cesar Cruzada.  They were
excited.  There was already a 10 inch
rubber tube running from Iloilo
River crossing to the school to the bed of Mr. Florete.  That they intend to bury and so I accompanied them to L. Borres
Elementary School and saw
for myself that there really was a 10 inch or 8 inch rubber pipe running across the school and was
about to be buried.

Q
–  Why? Can you explain what would be the disadvantage if
Mr. Florete bury those pipes on
the can­al that traverses the school?

A
–   The school maybe deprived of
the water for their fishpond, that
is one and the se­cond
drainage canal which drains the school in case of flood will not be working anymore.

Q –  Now,
in your letter you mentioned here and I read quote: ‘Please sit down with us
with Mr. Borres because this lot of the school still belongs to Mr. Borres and the Division Office denies your right of way, my
question is what do you mean when you say that the Division Office denied your right of
way?

A –   I
meant they cannot bury a pipe depriving the school of the water because the
land does not belong to us yet.  In other
words, the land does not belong to L. Borres
Elementary School although it is supposed to be donated by L. Borres.

Q –  But
when you wrote this letter Mrs. Witness, did you really stop or prohibit Mr. Florete from continuing the use of the canal?

A. –  No
sir.” (TSN, Oct. 17, 1979, pp. 5-6)

“Mrs. Javellana sent that
letter-invitation when she came to know that water pipes were about to be laid
underground by plaintiffs in lieu of the open canal. Plaintiff Florete Sr., however, did not come to the conference nor
sent any word or representataive.  Nor did he attend to all other subsequent
invitation related to the canal although he knew said invitations or conference
conducted by the government offices
concerned.

“As heretofore stated, the main canal had long been in existence even before plaintiff MarceIino Florete Sr. acquired
ownership of the fishpond
of the Maranons thru which the same passes.  This 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
to the Iloilo River.  An easement or servitude of water-right of way had thus 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.

“Even on the assumption that it was plaintiff Florete Sr. who constructed the subject canal in 1961, an
easement or servitude of water-right-of-way had nonetheless been constituted on
subject property because since then 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:

‘Art. 629:
“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.  They closed the entrance of
the canal and demolished portions of the main dike thus impairing the use of
the servitude by the dominant estate.  And
by so doing, plaintiffs violated not only the law on easement but also
Presidential Decree 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.  For this canal did not serve
merely to supply salt water to the school fishpond but also serves as drainage
canal or channel of rainwater from adjacent
lands to the Iloilo
River.

“Before the canal was closed, the residents had not
experienced any flood in the area or in the school premises.  It was only after the canal was closed by
plaintiffs on July 25, 1978,
that the residents began to experience flood in the school premises
particularly in the month of August every year thereafter when rainy
season comes.  Rainwater from adjoining
areas accumulate at the school premises without any chance of going out. 
Flood waters remain stagnant for days and became filthy and veritable breeding place of
mosquitoes.

“Plaintiffs claimed that they closed the canal because the
residents of the place threw waste matter and garbage into the canal and so the
waters therein were dirtied and rendered totally unsanitary for human use,
particularly for salt-making.  But this
claim was belied by defendants’ showing that what motivated plaintiffs to close
the canal was the fact that
the residents engaged in salt-making using plastic bags and thus, somehow,
competed with plaintiffs in the production of salt in the area.  At any rate, regardless of what motivated plaintiffs into closing
the canal, the fact is that plaintiffs’
act ran roughshod over the aforequoted provisions of law in easement and transgressed
Presidential Decree No. 296.

On the
issue of damages, therefore, the Court is of the view and so holds that
plaintiffs are liable to the defendants for moral damages, attorney’s fees and
costs of litigation.  It is bad enough that plaintiffs, after
closing the canal and thus depriving the school fishpond and residents of the
place salt water from the Iloilo River and impeding the flow of rain and flood
waters from the school premises and adjacent lands to said river during rainy
season, unjustifiably refused and failed to heed defendants’ plea for them to reopen said canal.  Worse, plaintiffs instituted the present
action against the defendants and dragged the latter into a court suit that
occasioned upon them worries, serious anxiety, fright and mental anguish.  No doubt, the defendants were vexed to the
utmost to find themselves faced with a court suit when what they did was only
to do what was incumbent
upon them to do as public officials committed to serve public interest and
welfare.  What is more, they were forced to secure the services of a
private counsel as they were sued also in their private capacities.

“It is quite evident
that plaintiffs filed the present action in bad faith to preempt whatever
appropriate legal action the authorities could take under the circumstances
aware, as they were, that no less than the offices of the City Fiscal of Iloilo
and the City Barangay Secretariat, after conducting
ocular inspection of the place together with other government functionaries
tasked with promoting the health, safety and welfare of the people in the area,
recommended immediate appropriate action aimed at reopening the canal.

“The damages that could be adjudged in this case are, however, limited only
to the herein
defendants.  It may be that the school
fishpond was damaged and the school PTA suffered actual damages in the form of
lost income therefrom.  And so
with the school children and residents of the place reason for which defendants pray that
they should be compensated.  But they are
not parties to this case
hence, damages could not be awarded to them.” (pp. 37-46, Rollo)

After a careful reading
of the aforementioned findings of the trial court, there is no question that
the two subject canals had been in existence long before plaintiff Florete bought his land from the Maranons.  Respondent appellate court cannot now disown it
after quoting with approval in the body of its decision the findings of the
trial court.  This brings Us to the
determination of the other issue namely: which of the two (2) estates is the
dominant or servient estate, an issue which hinges
upon the conclusion reached by the trial court that the canals were in
existence long before Florete Sr. had acquired that
property from the Maranons.  It has
been established that the main canal which is traversing the property of
Florete served as the passage of salt water from the Iloilo
River to the school fishpond and at
the same time, as an outlet and
drainage canal or channel of rainwater from the school premises and adjacent
lands that empty into the Iloilo
River.  Even assuming that it was plaintiff Florete
Sr. who constructed the subject canal in 1961, an easement of water-right of way had already been constituted
on the property of the
plaintiffs as the servient estate in favor of the L. Borres Elementary School
premises and the nearby lands as the dominant
estates.  Private respondents thus 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 or the servitude by the dominant
estates.  The findings of the trial court are amply supported by a
careful and exhaustive consideration of
all available documentary and oral evidence including ocular inspections as it was in the best position to
do so.  Its legal conclusions are likewise unassailable.  In view of the well-settled rule
that this Court is not a trier of facts, We find
no plausible reason not to sustain the trial court in its findings of
fact and the legal conclusions drawn from these findings.

WHEREFORE, premises considered, the assailed decision of
the respondent appellate court is hereby REVERSED and SET ASIDE, and the
judgment of the Regional Trial Court in Civil Case No. 12791 is hereby
REINSTATED.

SO ORDERED.

Melencio-Herrera, (Chairman),
Padilla, Sarmiento, and
Regalado, JJ., concur.

^[1]
Annex “B”, pp. 47-58, Rollo. Penned
by Justice Porfirio V. Sison,
concurred in by Justices Abdulwahid A. Bidin and Marcelino R. Veloso. A Motion for Reconsideration (Annex “C”,
pp. 59-80, Rollo) of the same decision was denied in
a Resolution of the Intermediate Appellate Court, promulgated on October 29,
1985, (Annex “D”, p. 81, Rollo)
penned by Justice Porfirio V. Sison,
concurred in by Justices Abdulwahid A. Bidin, Marcelino R. Veloso and Ramon B. Britanico,
who had inhibited himself earlier from any participation in the original
decision for undisclosed reasons.

^[2]
Annex “A”, p. 32, Rollo. Penned by
Judge Ricardo M. Ilarde.