Page:The Green Bag (1889–1914), Volume 20.pdf/412

 LACSON v. LACSON primeval fashion, under the open sky. It was indeed a memorable and an amusing caravan which the undersigned on that September morning led from Bacolod to the sugar estates of the Lacsons. The memory of it, as the writer saw it from time to time, when glancing back, winding its way along the sunlit road, is still vivid, and still serves to provoke a smile at the foibles and unnec essary strife which so often make their appearance among mortals. Upon reach ing the disputed strip of land hereinbefore designated as the " canal zone," and open ing the session there, the Court observed for the first time that the defendant did not even speak to the plaintiff, although the plaintiff was his nephew. Asked if plaintiff was his nephew, and if so whether of the whole blood or the half blood, he replied very quaintly, but with manifestly intense feeling, that he was not now his nephew at all, because he had disowned him as such on account of his digging this canal. The visit to the premises brought out a fact which made the true legal status of the disputed strip of land as clear as the noonday sun, as simple as Columbus' traditional solution of the problem of standing an egg on its end by slightly crushing it. The disputed strip was on the right bank of the stream. The right bank was very low ground, w*hile the left bank was very high. It was perhaps twenty feet from the vegetation on the top of this bluff to the surface of the water of the river. There was an abund ance of foliage and grass on that side, which extended down the almost perpendicular bluff of the left bank, to a certain point, where it suddenly stopped. The line of the lowest limit of vegetation, clearly indi cating the ordinary high-water mark, was plain, distinct, unmistakable. The soil of the bank being fertile, vegetation could of course live upon it down to the ordinary high-water mark, and must necessarily cease there because of the more or less con stant erosion. This ordinary high-water mark, looked at from the opposite bank,

that is to say from the side-where the plain tiff had dug his canal, was so high that you could readily see measuring only with the eye, that the tiny little canal zone in dispute would always of necessity be submerged whenever the river rose to high-water mark. In the Spanish jurisprudence all matters connected with irrigation are dealt with in a general law which went into effect on August 3, 1866, and is known as the "Law of Waters." This is an extremely interesting law, and a very elaborate one. It will be remembered that the Spaniards at a very early date in their history had already carried the science of irrigation to a very advanced stage. They had learned it from the Moors, who brought it over from Africa, where irri gation of the soil had been necessary from the earliest times for the subsistence of man. The law referred to was thus the result of intimate acquaintance with that department of science which 'it purported to regulate. Article 70 of this law of 1866 provided: "The natural bed or channel of a ... river includes the land usually covered by its waters at ordinary high water mark." A subsequent Article of the same law provided that the natural beds or channels of rivers are the property .of the State. Clearly therefore the land in dispute, being part of the natural bed or channel of this river, that is to say, part of the land usually covered by its waters at ordinary high-water mark, was the property of the State and not of the defendant. The plaintiff, therefore, was clearly entitled, so far as defendant was concerned, to dig his canal. Accordingly the temporary injunc tion issued in the preceding spring against the defendant was made perpetual. The plaintiff had claimed a large amount of damages in his petition, about twenty thousand dollars, if memory serves me aright, but no attempt was made during the trial to show any such damages. The stress of the conflict being centered so completely upon the main issue, the ques tion of damages was lost sight of both