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[TORIBIO BAUTISTA v. TORIBIO ALARCON ET. AL.](http://lawyerly.ph/juris/view/ca1c?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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23 Phil. 631

[ G. R. No. 8153, December 24, 1912 ]

TORIBIO BAUTISTA, PLAINTIFF AND APPELLEE, VS. TORIBIO ALARCON ET. AL., DEFENDANTS AND APPELLANTS.

D E C I S I O N

TORRES, J.:

Appeal through a bill of exceptions by the defendants Toribio Alarcon and Teodora Raymundo, the latter in substitution of Julian Santos,  from the judgment  of June  21, 1911, whereby  the Honorable Simplicio del Rosario, judge, held the injunction  issued by  the  court on  February  25, 1909, to be final and  ordered  the  defendants  to  cease to occupy the tracts specified in  the  judgment,  adjacent to the canal or ditch, to remove their  respective dikes, designated in the rough sketch under letters B, A, K, I, S, and J, to the places where they had formerly been located, shown by line Q-4, as regards Teodora Raymundo, and line P-W, with respect to Toribio Alarcon, and sentenced  the  defendants to pay P100 to  the plaintiff and the costs  of the suit.

By written instrument of April  10, 1908, Toribio Bautista set forth  that he was the owner of a tract  of land, used as a fishpond in the barrio of Pangjolo and the sitio called Talinducan, of the pueblo of Obando, Bulacan, and bounded  on the north  by the fishery of Julian Santos; on the south by that of Cornelio Enriquez and that of Benito Enriquez;  on the  east by  the  Talinducan River;  and  on the west by the fisheries of the  defendants, Toribio Alarcon and Julian Santos, and a canal or  ditch which is  between these defendant's  fisheries; that  the plaintiff's said fishpond  is formed by two parcels of  land, one low  and the other high, and is divided into two separate fisheries,  although  together they  are  supplied with water,  the  low land from the  Talinducan  River, and the high land  from the said  canal or ditch which,  in its  western part, is connected with and derived from the  Obando River, terminating at the plaintiff's fishpond and serving as  a boundary line between the defendants' fisheries; that the said ditch had existed for more  than fifty  years and  since  he had known it, from a time  prior to  October, 1907, had a width of about 6 meters; that the bed of  the said ditch or canal was not owned  by either of the defendants,  and that, even though it were,  such ownership  had  prescribed with respect to the original owner; that about the month of October, 1907, the defendants, without any right, reason, or  title, occupied the said ditch, constructed thereon the retaining walls of their respective  fisheries, in such  manner that they narrowed and reduced  the bed of  the  ditch to  an approximate width of 25 centimeters, thus obstructing and almost completely preventing the passage of the water,  on which account the  plaintiff's fishery on the high land had been almost entirely deprived or water from the said month of October to date; that, after the filing of the  complaint in this case and the  hearing  on the  preliminary injunction, the defendants did, maliciously and with  the sole intent of injuring the plaintiff,  completely close  the said canal  or ditch, thereby totally preventing the water from flowing into the plaintiff's fishery  which thereafter  became  completely dry;  that, by the said acts, performed by the  defendants, the plaintiff  had suffered  losses and damages amounting to P3,000, and that, should the former continue to occupy the said ditch, the latter would  thereby be caused cumulatively greater and  irreparable damage, unless  the defendants were  enjoined from continuing such occupation. He therefore requested that a preliminary injunction issue against  the  defendants, restraining  them, until  further order, from  occupying the  said  ditch or  any part thereof, as  it was before October,  1907; that no bond be accepted against  said injunction; and  that, after due legal procedure, the said defendants be restrained by perpetual injunction from occupying the aforementioned  ditch and  be sentenced to pay to the plaintiff,  as an indemnity, the sum of P3,000 and the costs of the trial.

The defendants,  in  their written answer  of April  24, 1908, denied generally and specifically each and all of  the facts contained in paragraphs 2  to 12 of  the amended complaint,  and, as a  special  defense, alleged that, along  the boundary line separating the properties of the defendants, there had not existed  and  did not exist  any kind of easement in the plaintiff's favor; that at no time and place  had the  latter obtained water  which constantly and  ordinarily came from any place along the boundary line of the defendants' properties, nor had obtained annual revenues or products from his fishery on the high land, amounting to P30 a year, inasmuch as  at no time could the plaintiff obtain from said fishery more than  500 fish; that the  plaintiff's said fishery  was at all times supplied with water  drawn from the  Talinducan River, although, during the season of floods, the plaintiff,  ever since he became possessed  of his  fishery described  in  paragraph 2  of the complaint, always obtained  permission from one of the defendants to let  off his extra water  supply, as his fishery was  of a higher elevation than that of  the defendants, but that the place had always been a mangrove swamp where  Julian Santos had his shrubs; that the two fisheries of  the plaintiff were in change of Toribio Alarcon for a period of about four years, during which time the latter  always obtained his water supply  therefor from the Talinducan River; that the plaintiff  never obtained at any time nor during  four years, as the  product from the sale of fish from his fisheries, the amount stated in the amended complaint; that,  before Alarcon had  the said fishery, it had for three years been in charge of Silvestre Dilag who,  during that  whole period, had not received from the sale  of fish taken therefrom more than P130, and did not at any time supply the  said fishery with water from the Obando  River, but always  from the Talinducan River.
   
As a counterclaim the defendants alleged that the plaintiffs had  caused  them losses  and  damages aggregating P3,000 by preferring charges  against  them in the justice of the  peace  courts of Polo and Obando, for infraction of municipal ordinances.  They therefore asked to  be absolved from the  complaint and that the plaintiff  be sentenced to pay P3,000 for losses  and damages, and the costs of the trial.

The case came to trial, oral evidence was introduced, the documentary  evidence was included in  the record and an ocular inspection also made by the court of the place where the said fisheries were located, and as a result thereof the judgment aforementioned was rendered.

The question  at issue between the parties to this  suit is whether the bed of the canal through which water flows from the Obando  River to  the fishery  of the plaintiff, Toribio Bautista, and the land through which the said canal is opened, belongs to the defendants or to the public domain, because such canal or watercourse is a branch of the aforementioned Obando River.
   
  The defendants have not proved that both or either of them were or was the legitimate owners or owner of the land in which the said watercourse or canal lies, and, therefore, being an arm of the Obando River, it belongs, together with the water flowing through it, to the public domain and partakes of the nature  and conditions of the river on which it depends.

In order to arrive at a just and proper conclusion in this  case, it is necessary to present here the legal provisions that govern in the matter at issue.  Article 339, No. 1, of the Civil Code provides: 

"Property of public ownership is:
   
    "1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges constructed by the State, and  banks, shores, roadsteads,  and that of a similar character." 

Article 407 of the same code prescribes:  

"The following are of public ownership:
   
  "1. Rivers and their natural beds.
   
  "2. Continuous or intermittent waters from springs or brooks running in their natural beds and the said beds. 

"3. Waters rising continuously or intermittingly in lands of said public ownership.

"4. Lakes and ponds formed by nature on public lands and  their beds.

"5. Rain water running through ravines or sandy beaches, the beds of which shall also  be public property."

The provisions of the above-cited articles substantially agree with those of the Law of Waters of August 3, 1866, made applicable to these Islands by the Spanish Government and  published in the Gaceta de  Manila of September 24, 1871, as is shown by the text of  articles 33,  36, 37,  39, 72, and  others relevant to the matter under discussion.

The plaintiff's petition is held to  be  proper whereby  he asks for the issuance of a perpetual injunction against the defendants, restraining them from the  occupation or usurpation of the canal or ditch, which  is virtually an arm  of the Obando River, belonging to  the public domain and being for the common use,  especially when it is duly  proved  in the case that the said watercourse is also a part of the public domain, and does not belong to the defendants; and therefore, the latter have absolutely  no right whatever to  occupy the said watercourse and to  erect on the sides thereof the retaining walls  of their respective  fisheries, which walls narrowed and reduced  the  water flow to 25 centimeters, while the said canal or watercourse was formerly,  up  to October, 1907, about 6 meters wide.

No private person has a right to usurp possession of a watercourse, branch of a river,  or lake of the public domain and  use, unless it shall have been proved that  he constructed the same within property of his exclusive ownership, and such usurpation constitutes  a  violation of the legal provisions  which explicitly exclude such waterways from the exclusive use or possession of a private party.

From the evidence at trial it was fully proven that the defendants, without right or  authorization,  removed the dikes of their  respective  fisheries, which dikes  had  been erected on the banks of the said watercourse or canal, and transferred them to the center of the stream, leaving only a very  reduced  space for the flow of a small quantity  of water, for the purpose of  enlarging their  said fisheries, thereby causing detriment,  not only to the  plaintiff, who, by such usurpation was deprived of the quantity of water he needed and used to get for his upper fishery, but also  to the public, which has an unquestionable right to the use of the  said watercourse or canal,  a branch of  the Obando River.

The canal herein concerned, together  with the water that flows through it, drawn from the Obando River, belongs to that class of property of public  use and  domain which is not susceptible of private appropriation, and, therefore, the defendants could not,  under  any circumstances, usurp the greater portion  of it without committing  a notorious and glaring violation of the law that protects the properties of the  State and the rights of its citizens.

Both the plaintiff and the defendants are entitled  to utilize, for the needs and benefit of their fisheries, the water which flows from the Obando River into the said canal, but none of them may utilize and receive such water exclusively and to the detriment of the rest, as did the defendants by reducing the bed  of the  canal, thereby almost depriving the plaintiff  of the quantity of water necessary for the maintenance  of his fishery.

Had it been proven that the defendants, or any of them, were the owners of the land crossed by the canal in  question, it would have devolved upon  us to decide  whether the plaintiff was or was not entitled to supply his  fishery  with water from the  Obando River, conducted through the said canal, and whether the defendants might reduce the volume of the  flow by constructing,  near  the middle of the canal, the dikes of their respective fisheries; but as the latter  have not adduced any proof whatever that they are the owners of the said watercourse or  canal, it  is  not necessary to consider,  in  this  decision, the right to an easement for conveying water,  acquired by the plaintiff through  prescription  for a period of more  than  forty  years,  as is demonstrated by the record.

Furthermore, the defendants are jointly obligated to indemnify the plaintiff for the losses and damages which they occasioned him  by the construction of their fishery  dikes and the reduction of the capacity  of the said canal, in th« amount fixed by the trial  court in the judgment appealed from, the findings of which are approved, as they are in accordance with law.
   
By reason, therefore, of the foregoing conclusions, whereby the errors assigned to the said judgment are deemed to have been refuted, it is  proper to affirm the same, as we hereby do, with the costs of this instance against the appellants.   So ordered.
 
Arellano, C. J., Mapa, Johnson, and  Trent, JJ,, concur.
Carson and Moreland,  JJ., concur in the result.


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