ANDRES EUSEBIO ET AL., PLAINTIFFS AND APPELLEES, VS. PROCESO AGUAS, DEFENDANT AND APPELLANT. AND

The
above entitled cases relate to the same subject-matter, have been
argued together, and may be conveniently disposed of in one decision.

It appears from the evidence that the appellant Proceso Aguas is the
owner of twenty-one hectares of irrigated land, adjoining the western
bank of the stream Malpitic and designated in the cadaster as lot No.
3836. Over thirty years ago the appellant’s predecessors in interest
constructed a dam across the stream at a point about 500 meters above
the land and from there the water for the irrigation of the land was
conducted through a canal situated on the east side of the stream and
carried across the stream to the land by means of a banca or
flume. The engineer Justo Arrastia of the Bureau of Public Works
estimated that the quantity of water so utilized by the appellant and
his predecessors amounted to 42 second liters.

In September, 1919, the appellant removed the banca
and constructed a dam across the stream at a point opposite his land
with the result of diverting all of the water in the Malpitic stream as
well as that of one of its affluents, Sindalan Creek, to the land
adjoining both sides of the Malpitic at that point.

The
appellees are the owners of 270 hectares of land also adjoining the
stream but situated some 500 meters below the appellant’s land, and
have since time immemorial utilized the greater part of the water of
the stream of Malpitic below its confluence with Sindalan Creek for the
purpose of irrigating their land. The amount so used by them is
estimated at 180 second liters. The construction of the appellant’s dam
in 1919 had the effect of depriving the appellees of the water of both
streams and they therefore on September 30th of that year brought
action R. G. No. 23189 asking, among other things, for a mandatory
preliminary injunction ordering the appellant to remove said dam. The
preliminary injunction was issued ex parte as prayed for, but
was not immediately complied with by the appellant. Contempt
proceedings were thereupon instituted but before any definite action
therein was taken by the court, the appellant removed the dam. On the
following day, October 3d, he constructed another dam across the stream
on almost the same site as that of the dam removed. The appellees
thereupon on October 4, 1919, instituted a second action, R. G. No.
23190. In this case the court issued another preliminary injunction
ordering the appellant to remove the new dam within twelve hours and
prohibiting him from constructing or erecting any kind of obstacle to
the natural flow of the water in Malpitic Creek until further order of
the court. Notwithstanding this injunction the appellant continued to
obstruct the flow of the stream, as a consequence of which the
appellees filed several motions to have the appellant punished for
contempt, which motions seem to have resulted in his abandoning or
destroying the second dam.

In the meantime, on October 6,
1919, the appellant brought an action, R. G. No. 23191, against the
appellees, alleging that they interfered with the flow of the waters of
Malpitic Creek and asking for an injunction and damages. The court
below does not appear to have taken this action seriously.

In the month of July, 1921, the appellant constructed a third dam a
short distance above the site of the second dam and on the 21st of the
same month the appellees filed another motion asking that the appellant
be punished for contempt. The trial court after hearing found the
defendant guilty and on November 8, 1921, sentenced him to suffer one
month of imprisonment and to pay a fine of P50.

On September
3, 1923, the appellant again built a dam across the creek at
practically the same point and still another motion for contempt was
filed by the appellees on September 10, 1923. Upon the filing of this
motion, the court set all three of the actions above-mentioned down for
hearing and they were jointly tried. Upon the evidence presented at
said trial the court declared the preliminary injunctions issued in
cases R. G. Nos. 23189 and 23190 permanent, ordering the appellant to
remove the dam constructed by him and prohibiting him from constructing
dams across the streams in the future in such a manner as to interfere
with the flow of the water, except that he may divert and appropriate a
quantity of water not to exceed 42 liters per second for use on his
land and may construct the necessary works for that purpose, provided
that such works do not interfere with the rights of the appellees. The
court further found the appellant guilty of contempt of court and
sentenced him to pay a fine of P100, with subsidiary imprisonment in
case of insolvency. The appellant was also ordered to pay the costs in
all of the three cases.

Upon appeal to this court, the appellant makes the following assignments of error:

“1. The lower court erred in requiring the appellant, by mandatory injunction, to demolish the dam in question.

“2.
The lower court erred in holding that the appellant is only entitled to
42 liters of water per second for irrigation purposes.

“3. The lower court erred in adjudging the appellant guilty of contempt of court.”

Under the first assignment of error the appellant argues (a)
that the appellees have not established their right by injunction
inasmuch as they have not shown substantial damage by the diversion
complained of, and (b) that the order of the court below
requiring the appellant to demolish his dam deprives him of the right
to make reasonable use of the water of the stream for the purpose of
irrigation.

With respect to this argument it is sufficient
to say that it clearly appears from the evidence that both Malpitic and
Sindalan Creeks are public waters (art. 407, Civil Code) and subject to
the provisions of the Irrigation Act, No. 2152 as amended; that section
43 of the Act prohibits ” * * * any change in the place of diversion,
storage, use, or restoration, nor in the works necessary for the use of
the same, except upon the approval of the Secretary of Commerce and
Police * * * ” and that it does not appear that the appellant ever
obtained such authorization for the construction of the dam in
question. His action was therefore entirely illegal and might well be
enjoined upon petition by any party in interest without any showing
that actual damages had already accrued. The rule is thus 3tated in 27
R. C. L., 1116:

“While some of the earlier
cases held that an action for interference with the flow of a stream
could not be maintained unless some actual injury had been inflicted,
it is now the generally accepted view that it is not necessary for a
riparian owner, in order to maintain an action founded on the unlawful
interference by another owner with the flow of a stream, to show in his
use of the land actual and present damage. It is enough if it appears
that an injurious effect is produced upon his property, such as to
diminish its value, if the defendant, by lapse of time, should acquire
a right to maintain the obstruction. * * *” (Johnson vs. Lewis, 13 Conn., 303; Price vs. High Shoals Mfg. Co., 132 Ga., 246; 22 L. R. A. [N. S.], 684; Stimson vs. Inhabitants of Brookline, 197 Mass., 568; Morrill vs. St. Anthony Falls Water-Power Co., 26 Minn., 222; Tootle vs. Clifton, 22 Ohio St., 247; Alexander vs. Kerr, 2 Rawle’s Reports [Pa.], 82; Miller vs. Miller, 9 Pa. St., 74.)

It may also be noted that in the present case the uncontradicted
evidence of the appellees shows that through the erection of the dam in
question, the waters of the Malpitic and Sindalan streams were diverted
from 270 hectares of land belonging to the appellees, thereby
preventing the proper cultivation of the land which, in the course of a
year, would involve the loss of from 1,509 to 1,800 cavanes of palay
and 2,668 piculs of sugar. In these circumstances, the court certainly
did not err in issuing a mandatory injunction and ordering the
immediate removal of a dam, the construction of which seems to have
been a matter of merely a few days work. (See 27 R. C. L., 1115 and
1134.)

In his second assignment of error the appellant
contends that the court below acted in an arbitrary manner in limiting
the amount of water to be allowed the appellant to 42 liters per
second. There is no merit in this contention. In determining the amount
to be allowed, the court evidently relied on the testimony of the
engineer Arrastia who estimated the amount appropriated by the
appellant in the past as 42 second liters which is 9 second liters in
excess of the amount ordinarily allowed by the Bureau of Public Works
for the irrigation of land similar to that of the appellant and of the
same area.

Inasmuch as it appears that the rest of the water
in the stream has been appropriated since time immemorial by the
appellees and title thereto acquired by prescription (art. 409, Civil
Code), and considering that the water rights so acquired are expressly
recognized and respected by sections 1 and 50 of the Irrigation Act, it
is evident that the court below would not have been justified in
allowing the appellant to appropriate a greater amount than that fixed
in the judgment.

In his third assignment of error the
appellant objects to the part of the judgment of the court below which
finds him guilty of contempt and sentencing him to pay a fine of P100.
In view of the repeated violations of the orders of the court committed
by the appellant as hereinbefore set forth, he was, in our opinion,
treated very leniently by the court below and appears to have well
deserved the penalty imposed.

The judgment appealed from is therefore affirmed, with the costs against the appellant. So ordered.

Johnson, Malcolm, Villamor, Johns, and Romualdez, JJ., concur.