1. REALTY; EASEMENTS; WATER RIGHTS BY PRESCRIPTION. — The enjoyment by the plaintiff landowner of an easement for the maintenance of an irrigation aqueduct and a dam on the lands of the defendants for a period of more than twenty years confers title thereto upon the plaintiff landowner by prescription and burdens the lands of the defendants with a corresponding servitude.

The plaintiff is the owner of a tract of rice land in the Province of La Laguna, which is cultivated with the aid of water brought from the River Bangcabangca, through an aqueduct which passes over the land of the defendants. On the land of the defendants there was a dam (presa) with a small gate or aperture in its face which was used to control the flow of the water in the aqueduct, by permitting a greater or less quantity to escape in a drainage ditch, also on the land of the defendants. In the month of May, 1905, one of the defendants completely destroyed the dam and let all the water escape by the drainage ditch, so that none flowed on the land of the plaintiff. At the time when the dam was destroyed the plaintiff had some five cavanes of land prepared to plant rice, but because of the escape of the water resulting from the destruction of the dam he was unable to raise his crop, which was a complete failure.

Upon these facts found by the trial court, and upon the further fact that the aqueduct and dam in question had been in use by the plaintiff, as of right, for more than thirty years, and that he had an easement in the land of the defendants for the maintenance of the said aqueduct and dam, an injunction was granted to restrain the defendants from interfering with the plaintiff’s right to the use of the water in the aqueduct, in the manner heretofore established by custom, and damages were awarded in favor of the plaintiff for the loss occasioned by the failure of his rice crop.

The defendants and appellants make the following assignment of errors:chanrob1es virtual 1aw library

First. The court erred in failing to find from the evidence the classification of the lands in question.

Second. The court erred in failing to find that the land in question was all planted at the same time.

Third. The court erred in finding that the plaintiff’s easement for the maintenance of the dam was damaged by the opening of the drainage ditch in the month of May.

Fourth. The court erred in finding that there was a servitude for the maintenance of the dam in question upon the land of the defendants in favor of the land of the plaintiff.

In support of this assignment of errors counsel for the appellants contends that the evidence adduced in the trial establishes, first, that the plaintiff is not the owner of any lands watered by the aqueduct of the class known as padagat (rice lands planted in May); second, that the plaintiff suffered no damage by the destruction of the dam, because all the lands of plaintiff which are cultivated with the aid of water from the aqueduct are of the class known as binanbang (rice lands planted in August or September), and the destruction of the dam in May and the consequent failure of water in the aqueduct at that period did not, and could not, damage the plaintiff or interfere with the proper cultivation of his lands; and, third, that the evidence of records does not establish the existence of the servitude in the lands of the defendants in favor of the lands of the plaintiff landowner for the maintenance of the aqueduct and dam in question.

It will be seen that the first three of the errors assigned are directly to the findings of fact by the trial court, wherein it is held that the plaintiff is the owner of 5 cavanes of rice land which were prepared for cultivation in May, 1905, and which where rendered useless by the loss of water resulting from the destruction of the dam. Upon this point, however, the testimony of the plaintiff’s witnesses is definite, certain, and positive, and we can not say that the findings of the trial court are contrary to the weight of the evidence. Counsel for the appellants lays great stress upon the fact that some of the plaintiff’s witnesses stated that the lands of the plaintiff situated near the aqueduct are of the class known as binanbang (rice lands planted in August or September), while the portion of his lands situated farther west, watered from the bay and not from the aqueduct, is of the class known as padagat (rice lands planted in May). These statements, however, appear to be mere general description of the lands of plaintiff and are in no wise inconsistent with the positive and definite statements of the witnesses that a portion of the lands of the plaintiff, watered by the aqueduct, amounting 5 cavanes, was, in fact, prepared by the plaintiff for cultivation in May; and, unlike the greater part of the land described in the complaint, is of the class known as padagat and not binanbang.

The fourth assignment of error can not be maintained in the light of the proof of record that the aqueduct and the dam (presa) have been in existence for more than thirty years, during which period the owner of the land in question has always exercised the right to the reasonable use of the water in the aqueduct for irrigation purposes. (Arts. 527 and 528, Civil Code.)

Counsel for the appellants contend that under the definition of a servitude which appears in article 530 of the Civil Code the existence of the servitude can not be established unless it appears that from such servitude a benefit (beneficio) was, or might be, derived by the plaintiff landowner; and that since it appears from the testimony of the witnesses that the aperture in the dam was used for the purpose of controlling the flow of water in the aqueduct and for preventing damage by overflow to the lowlands over which the aqueduct runs, and since it appears that the lands of the plaintiff are higher than the lands of the defendants, therefore the aqueduct could never have been intended for the supply of water to the lands of the plaintiff and neither the dam nor the aqueduct could be of any benefit to these lands. This contention can not be maintained in the face of the positive testimony as to the existence of the aqueduct and its use for many years to supply water to the lands in question. It may be that the defendants had a right to open the aperture in the face of the dam to prevent a destructive overflow of water on their lands, but this would not give them the right to stop the flow of water altogether; nor does it tend to establish the contention of the defendants that the plaintiff landowner is not entitled to the benefit of the reasonable use of the water flowing in the aqueduct, since it does not appear that such use necessarily involved destructive overflows from the aqueduct, provided the flow of water therein was properly regulated by the opening of the aperture in the dam.

The judgment of the trial court authorizing the issue of the writ and awarding damages in favor of the plaintiff for the losses entailed by the destruction of the dam is affirmed, with the costs of this instance against the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Willard, and Tracey, JJ., concur.