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Salazar vs. Gutierrez

No. L-21727. May 29, 1970.

CRISPINA SALAZAR, petitioner, vs. GUILLERMO

GUTIERREZ, and DAMASO MENDOZA, respondents.

Civil actions; Appeal from Court of Appeals to Supreme Court;

Filing of petition with Supreme Court; Effect of failure to prove
service of a copy of the petition upon the Court of Appeals.—
Failure to comply with the requirement of proof of service of a
copy of the petition upon the Court of Appeals under Section 1 of
Rule 46 is not fatal 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 being merely a nominal party
respondent The original parties in the trial court are the same
parties in the appeal.
Property; Easement; Easement of aqueduct; Where requisites
of Article 643 of Civil Code on establishment of easement held
complied with —The requisites of Article 643 of the Civil

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VOL, 33, MAY 29, 1970 243

Salazar vs. Gutierrez

Code for the establishment of easement of aqueduct are held

complied with where (1) the disputed canal had been in existence
since the Spanish regime, or at least prior to the original
registration of the lot in question, and that such use had lasted
continuously for at least thirty years—from which a fair
presumption arises that the applicant had a right to use it and
that the water he could dispose of was sufficient for the purpose;
(2) 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 would make it impossible to
present proof of indemnity to the owner of the servient estate; (3)
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the proposed right of way is still the most convenient despite

proximity or abutment of the lot to a stream where the stream is
lower than the other parts of the lot and that the portion of the lot
which abuts the stream is a precipice.
Same; Same; Same; Law allows creation of compulsory
easement to extend an irrigation system.—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.
Same; Same; Same; Effect of registration of servient lot
without annotation of encumbrance at back of certificate of title.—
The registration of the servient lot without the corresponding
registration of the easement of aqueduct on the title cannot
summarily terminate it thirty years thereafter where the original
registered owner of the servient lot 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 subsequent purchasers of the servient
estate cannot capitalize on the absence of annotation on the title
where they are aware of the existence of the easement and
likewise allowed it to continue for 26 years after they acquired
title.

          Jaime L. Guerrero and Renato B. Bercades for

petitioner.
     Tañada, Teehankee & Carreon and Jose P. Santillan
for respondents.

MAKALINTAL, J.:

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

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Salazar vs. Gutierrez

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,
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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
438 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 dam-

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Salazar vs. Gutierrez

ages 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
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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 f ound in Lot 436 and
to cause the corresponding annotation of the encumbrance
on Transfer Certificate of Title 1059 covering 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

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Salazar vs. Gutierrez

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

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land until cut off or extinguished by the registration of the servient

estate, or in any other manner." (Italics 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
preceeding 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."

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Salazar vs. Gutierrez

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 reviewed 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
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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;

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Salazar vs. Gutierrez

(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 1928 but 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

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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 oversimplification. 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 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
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VOL. 33, MAY 29, 1970 249

Salazar vs. Gutierrez

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
flows 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

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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 '13' 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 xxx which canal ends farther east of Lot 448 x x x; that
this canal begins from the dam f arther west of these Lots Nos.
431, 434, 433 and 436.
x x x      x x x      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

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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 defendants, it would have
been the same in size as the new canal mark '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."

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It is a reasonable conclusion from the foregoing that the

demolished canal supplying water to Lot 436 of the
petitioner was merely 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 regist ation 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
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Salazar vs. Gutierrez

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, J.B.L., Dizon, Zaldivar,

Fernando, Barredo and Villamor, JJ., concur.
     Teehankee, J., did not take part.
     Castro, J., is on leave.

Decision set aside.

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Notes.—Easement of acqueduct.—Articles 642 and 643

of the new Civil Code (formerly Articles 567 and 558 of the
old Code), in conjunction with Articles 118 to 125,
inclusive, of the Law of Waters of 1866, provide authority
for the rule that one who wishes to use upon his own land
any water of which "he may have control" is entitled to take
it through the intervening estates, subject to the obligation
of indemnifying the owners thereof, and thus the right to
acquire an easement to bring in water from a river to
supply fishponds (Gonzales vs. De Dios, L-3099, May 21,
1951).
'This is in accordance with the precept engrained In the
corpus of our jurisprudence that no enlightened concept of
ownership can shut out the idea of restrictions thereon,
such as easements. Absolute and unlimited dominion is
unthinkable because it would destroy and defeat itself,.
inasmuch as the proper enjoyment of property requires
mutual service and forbearance among the adjoining
estates (Amor vs. Florentino, 74 Phil. 403).

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