Creek’s position can be altered if alternate route for water flow could be provided

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Persida Acosta

Dear PAO,
I own a vacation house in a hilly location in the province. There is a natural creek coming from the higher ground that passes through my property. I plan to construct an enclosed botanical garden adjacent to my house but I have to close down the creek to do that because it is located in the spot where I want to build the garden. I consulted my landscape architect, and she told me that I can close down the current location of the creek as long as I provide another route for it.

When the barangay (village) authorities found out about my plan, they requested me to stop the construction of my garden, arguing that it is illegal to impede the flow of the creek. I told the village officials not to worry since
I plan to just re-route the creek to another portion of my property to allow the continuous flow of the creek. But the officials still wanted me to stop my construction since it is allegedly illegal. Do they have a basis for making that claim? I appreciate any kind of advice you can give me. Thanks!
Pamela

Dear Pamela,
The Civil Code of the Philippines provides for the law on easements on waters relevant to your concern:
Article 637. Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth which they carry with them.

The owner of the lower estate cannot construct works which will impede this easement; neither can the owner of the higher estate make works which will increase the burden. (Emphasis supplied)


As stated by this law, there is a prohibition against the construction of a work by the owner of the lower estate that will block the natural flow of the water which the landowner is obligated to allow to flow.

This provision of the Civil Code, however was superseded by Presidential Decree (PD) 1067 or the Water Code of the Philippines. This law, which similarly reflects the aforementioned Civil Code provision, now qualifies the re-striction on the construction of works that may block the flow of the water. According to Article 50 of PD 1067:

Article 50. Lower estates are obliged to receive the waters which naturally and without the intervention of man flow from the higher estate, as well as the stone or earth which they carry with them.

The owner of the lower estate cannot construct works which will impede this natural flow, unless he provides an alternative method of drainage; neither can the owner of the higher estate make works which will increase this natural flow. (Emphasis supplied)

Based on this law, the owner of the lower estate is now allowed to construct structures that may impede the natural flow of water as long as there is an alternative route for the downward flow of the water. Thus, while the own-er of the lower estate is still obligated to receive the waters from the higher estate, he may still make constructions that will impede the natural flow of water as long as he can provide another way by which the water can flow downwards.

Considering this provision, it appears that contrary to the claim of your barangay and as correctly advised to you by your landscape architect, you may legally alter the current position of the creek that is within your property to en-sure the continuity of its natural flow, so that you may construct your garden in its original location.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our ap-preciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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