Student Name: Anne Jhae Princess R.

Antes
Date Submitted: 22 November 2022
Student Number: 2019262441 Course/Section: Property – JD2

Case Title: Ester Javellana, et. al. vs. Intermediate Appellate Court, Marsal & Co., Inc., and
Marcelino Florete, Sr.
Case No.: G.R. No. 72837 Date: 17 April 1989

ISSUE: Whether or not an easement or servitude of water right of way has been instituted in the
property of the respondents as the servient estate in favor of the L. Borres Elementary School
and the nearby lands as the dominant estate.

RULES: The following laws, rules and jurisprudence were cited:

o Article 616, Civil Code - Easements are also positive or negative. 

A positive easement is one which imposes upon the owner of the servient estate the
obligation of allowing something to be done or of doing it himself, and a negative
easement, that which prohibits the owner of the servient estate from doing something
which he could lawfully do if the easement did not exist. 

o Article 629, Civil Code – Obligation of Servient Estate Owner

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 changed 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.

o Presidential Decree No. 296 – enjoins any person, natural or juridical, to demolish
structures or improvements which tend to obstruct flow of water through rivers, creeks,
esteros and drainage channels.

ANALYSIS OF FACTS:

Marsal & Co., Inc., and Marcelino Florete, Sr. are the present owners of the land
adjoining the Iloilo River up to the adjacent lot where the L. Borres Elem. School is located.
There existed a main canal from the Iloilo River which passes through the Marsal property and
thru a canal that traverses the school property going towards Lot 2344. Private Respondents
closed the dike entrance and later on demolished the portions of the main dike connecting the
main canal to the canal running thru the school grounds.
The closure caused flooding in the premises of the school and its vicinity because the canal
serves as outlet of rain or flood water that empties into the river. This prompted the school and
barangay officials to complain to higher authorities about the closure of the canal.

When Florete was about to bury a pipe in lieu of an open canal, he was prevented from doing so
by the school district supervisor, Javellana, thus he instituted a complaint for recovery of
damages for allegedly denying his access to the use of the canal to his property. The RTC ruled
in favor of Javellana thus Florete appealed to the IAC which reversed the decision thus the case
at bar.

ANALYSIS OF ARGUMENTS:

Ester Javellana, et. al. Marsal & Co., and Florete, Sr.

 What motivated respondents to close
the canal was the fact that the
residents engaged in salt-making using
plastic bags, thus competing with
them in the production of salt in the
area.
 They closed the canal because the
residents threw waste matter and
garbage into the canal and so the
waters were dirtied and rendered
totally unsanitary for human use,
particularly for salt-making.

CONCLUSION:

YES. A positive easement or servitude of water right of way had been constituted on the subject
property as the servient estate in favor of the L. Borres Elementary School and the nearby lands
as dominate estates since it has been in continuous use for no less than fifteen (15) years by the
school fishpond as well as those lands adjacent to it.

As a positive easement, the private respondents had no right to terminate the use of the canal
without violating Art. 629 of the Civil Code which provides that “The owner of the servient
estate cannot impair, in any manner the use of the servitude. Nevertheless if the same should
become very inconvenient to the owner of the servient estate, any important works thereon may
be charged at his expense, 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.”

When Florete closed the entrance of the canal and demolished portions of the main dike, it
impaired the use of the servitude by the dominant estates. The 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 that the residents began to
experience flood in the school premises. Flood waters remain stagnant for days and became
filthy and veritable breeding place of mosquitoes, which could affect the residents, specifically
the children going to the school.