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G.R. No. 86774 August 21, 1991


ENEDINA PRESLEY, petitioner,
vs.
BEL-AIR VILLAGE ASSOCIATION, INC., and THE HON. COURT OF
APPEALS, respondents.
This is a petition for review of the decision of the Court of Appeals promulgated on
November 28, 1988 affirming the decision of the Regional Trial Court in toto. The
dispositive portion of the decision reads:
WHEREFORE, the defendants are enjoined permanently from using the
property in question as apan de sal store or from using it for any other
commercial purposes; the defendants are ordered to pay, jointly and
severally, the plaintiff the sum of P3,803.55 with legal interest from
February 9, 1981 until the said sum is fully paid and the defendants are
further ordered to pay, jointly and severally, the sum of P4,500.00 as and
for attorney's fees. (Rollo, p. 30)
The facts as stated by the Court of Appeals are as follows:
A complaint for specific performance and damages with preliminary
injunction was filed by plaintiff-appellee, Bel-Air Village Association, Inc.
(BAVA for short) against Teofilo Almendras and Rollo Almendras (now
both deceased and substituted by defendant-appellant Enedina Presley)
for violation of the Deed Restrictions of Bel-Air Subdivision that the
subject house and lot shall be used only for residential and not for
commercial purposes and for non-payment of association dues to
plaintiff BAVA amounting to P3,803.55.
The Almendrases were at the time of the filing of the action the
registered owners of a house and lot located at 102 Jupiter Street, Bel-Air
Village, Makati, Metro Manila. As such registered owners, they were
members of plaintiff BAVA pursuant to the Deed Restrictions annotated
in their title (TCT No. 73616) over the property in question and defendant
Presley, as lessee of the property, is the owner and operator of 'Hot Pan
de Sal Store' located in the same address.
At the time the Almendrases bought their property in question from
Makati Development Corporation, the Deed Restrictions (Exh. "C") was
already annotated in their title (Exh. "B") providing (among others) 'that
the lot must be used only for residential purpose' (Exh. "B-1" and "B-2").

When BAVA came to know of the existence of the 'Pan de sal' store, it
sent a letter to the defendants asking them to desist from operating the
store (Exh. "D").
Under the existing Deed Restrictions aforesaid, the entire Bel-Air
Subdivision is classified as a purely residential area, particularly Jupiter
Road which is owned by and registered in the name of BAVA.
It has likewise been established that the Almendrases had not paid the
BAVA membership dues and assessments which amounted to P3,802.55
as of November 3, 1980. Teofilo Almendras contended that there was no
written contract between him and appellee BAVA. Only a consensual
contract existed between the parties whereby Almendras regularly pays
his dues and assessments to BAVA for such services as security, garbage
collection and maintenance and repair of Jupiter Street. However, when
the services were withdrawn by appellee BAVA, there was no more
reason for the latter to demand payment of such dues and assessments.
(Rollo, pp. 30-31)
After due hearing on the merits, the trial court rendered the decision in favor of
BAVA which was affirmed by the respondent Court of Appeals.
On January 20, 1989, the Court of Appeals denied the Motion for Reconsideration.
Consequently, the petitioner filed the instant petition with this Court raising the
following issues, to wit:
A
THE RULING OF RESPONDENT COURT OF APPEALS IS NOT IN
ACCORDANCE WITH THE RECENT CONSOLIDATED DECISION EN BANC OF
THIS HONORABLE SUPREME COURT PROMULGATED DECEMBER 22,1988
IN RE SANGALANG, BEL-AIR VILLAGE ASSOCIATION INC. v. INTERMEDIATE
APPELLATE COURT AND AYALA CORPORATION G.R. NO. 71169; BEL-AIR
VILLAGE ASSOCIATION INC. v. TENORIO, ET AL.-G.R. NO. 74376; BEL-AIR
AIR VILLAGE ASSOCIATION, INC. v. COURT OF APPEALS AND ROMUALDEZ,
ET AL G.R. NO. 76394; BEL-AIR VILLAGE ASSOCIATION INC. v. COURT OF
APPEALS AND FILLEY, ET AL.-G.R. NO. 78182; BEL-AIR VILLAGE
ASSOCIATION, INC. v. COURT OF APPEALS AND MONCAL, ET AL.-G.R. NO.
82281, WHICH CONSOLIDATED DECISION APPLIES ON ALL FOURS IN THE
CASE AT BAR IN FAVOR OF PETITIONER.
B

THE RULING OF RESPONDENT COURT OF APPEALS ADJUDGING


PETITIONER SOLIDARILY LIABLE TOGETHER WITH THE ALMENDRASES TO
PAY THE ALLEGED UNPAID ASSOCIATION DUES IS PATENTLY CONTRARY
TO THE EVIDENCE AND FACTS.

C
THE RULING OF RESPONDENT COURT OF APPEALS ADJUDGING
PETITIONER SOLIDARILY LIABLE TO PAY ATTORNEY'S FEES IS WITHOUT
ANY LEGAL OR FACTUAL BASIS. (Rollo, p. 11-12)
During the pendency of the case with this Court, petitioner Enedina Fox Presley died
on January 4, 1991. She was substituted by her two daughters as heirs, namely
Olivia V. Pizzaro and Consuelo V. Lacson.
The issues raised in the instant petition have already been dealt with in the
consolidated cases decided by this Court promulgated on December 22, 1988
entitled Sangalang, et al. vs. Intermediate Appellate Court and Ayala Corporation,
G.R. No. 71169; Bel-Air Village Association, Inc. v. Intermediate Appellate Court and
Rosario de Jesus Tenorio and Cecilia Gonzalvez, G.R. No. 74376; Bel-Air v. Court of
Appeals and Eduardo and Buena Romualdez, G.R. No. 76394; BAVA v. Court of
Appeals, Dolors Filley and J. Romero Associates, G.R. No. 78182; and BAVA v. Court
of Appeals, Violeta Moncal and Majal Development Corp., G.R. No. 82281. (168
SCRA 634 [1988])
Apparently, when the respondent court promulgated the questioned decision on
November 28, 1988 the Sangalang case had not yet been decided by this Court. It
was however, aware of the pending case as it made mention of the several cases
brought to court by BAVA against the aforesaid commercial establishments.
The petitioner in the instant case is similarly situated as the private respondents in
G.R. Nos. 74376; 76394; 78182 and 82281 who converted their residential homes to
commercial establishments; hence, BAVA filed suits against them to enforce the
Deeds of Restrictions annotated in their titles which provide among others, "that the
lot must be used only for residential purposes."
The Court in the Sangalang case, however, held:
xxx xxx xxx
... In the Sangalang case, we absolve the Ayala Corporation primarily
owing to our finding that is not liable for the opening of Jupiter Street to
the general public. Insofar as these petitions are concerned, we likewise

exculpate the private respondents, not only because of the fact that
Jupiter Street is not covered by the restrictive easements based on the
'deed restrictions' but chiefly because the National Government itself,
through the Metro Manila Commission (MMC), had reclassified Jupiter
Street into a 'high density commercial (C-3) zone,' (See rollo, G.R. No.
71169, Id., 117) pursuant to its Ordinance No. 81-01 Hence, the
petitioners have no cause of action on the strength alone of the said
deed restrictions. (p. 667; Emphasis supplied)
In the instant petition, BAVA assails the Court's decision in the Sangalang case,
more specifically the Court's interpretation of Ordinance No. 81-01 passed by the
Metro Manila Commission (MMC) on March 14, 1981. It avers that due to the
multitude of issues raised and the numerous pleadings filed by the different
contending parties, the Court was misled and unfortunately erred in concluding that
Jupiter Street was reclassified as a "high density commercial (C-3) zone" when in
fact, it is still considered as a "(R-1) residential zone."
If indeed private respondent's observations were accurate, the Court will certainly
not hesitate to correct the situation and the case at bar would be the proper
occasion to do so. We have carefully examined the pleadings but have found no
reason to reconsider the Sangalang doctrine. In assailing the Court's decision, the
private respondent has come out with mere assertions and allegations. It failed to
present any proofs or convincing arguments to substantiate its claim that Jupiter
Street is still classified as a residential zone. (See Filinvest v. Court of Appeals, 182
SCRA 664 [1990]) No new zoning re-classification, ordinance, certification to the
effect or jurisprudence for that matter was brought to the attention of this Court
which would necessarily compel us to take a second look at the Sangalang Case.
The Court can not reverse a precedent and rule favorably for the private respondent
on the strength of mere inferences.
The respondent court in the case at bar was not at all entirely wrong in upholding
the Deed of Restrictions annotated in the title of the petitioners. It held that the
provisions of the Deed of Restrictions are in the nature of contractual obligations
freely entered into by the parties. Undoubtedly, they are valid and can be enforced
against the petitioner. However, these contractual stipulations on the use of the
land even if said conditions are annotated on the torrens title can be impaired if
necessary to reconcile with the legitimate exercise of police power. (Ortigas & Co.
Limited Partnership v. Feati Bank and Trust Co., 94 SCRA 533 [1979]).
We reiterate the Court's pronouncements in the Sangalang case which are quite
clear:
It is not that we are saying that restrictive easements, especially the
easements herein in question, are invalid or ineffective. As far as the Bel-

Air subdivision itself is concerned, certainly, they are valid and


enforceable. But they are, like all contracts, subject to the overriding
demands, needs, and interests of the greater number as the State may
determine in the legitimate exercise of police power. Our jurisdiction
guarantees sanctity of contract and is said to be the 'law between the
contracting parties,' (Civil Code, supra, art. 1159) but while it is so, it
cannot contravene 'law, morals, good customs, public order, or public
policy.' (supra, art. 1306). Above all, it cannot be raised as a deterrent to
police power, designed precisely to promote health, safety, peace, and
enhance the common good, at the expense of contractual rights,
whenever necessary. . . (p. 667)
Jupiter Street has been highly commercialized since the passage of Ordinance No.
81-01. The records indicate that commercial buildings, offices, restaurants, and
stores have already sprouted in this area. We, therefore, see no reason why the
petitioner should be singled out and prohibited from putting up her hot pan de sal
store. Thus, in accordance with the ruling in the Sangalang case, the respondent
court's decision has to be reversed.
With respect to the demand for payment of association dues in the sum of
P3,803.55, the records reveal that this issue is now moot and academic after
petitioner Presley purchased the property subject of lease from the Almendrases
and settled all association dues.
Likewise, the demand for payment of attorney's fees is now without legal or factual
basis.
WHEREFORE, the petition is hereby GRANTED. The decision of the respondent court
dated November 28, 1988 is REVERSED and SET ASIDE. The complaint of the
private respondent is DISMISSED.
G.R. No. 90596

April 8, 1991

SOLID MANILA CORPORATION, petitioner,


vs.
BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.
This is an appeal filed by way of a petition for review on certiorari under Rule 45 of
the Rules of Court.
The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred
in reversing the trial court which had rendered summary judgment; and (2) whether
or not it erred in holding that an easement had been extinguished by merger.
We rule for the petitioner on both counts.

It appears that the petitioner is the owner of a parcel of land located in Ermita,
Manila, covered by Transfer Certificate of Title No. 157750 of the Register of Deeds
of Manila. The same lies in the vicinity of another parcel, registered in the name of
the private respondent corporation under Transfer Certificate of Title No. 128784.
The private respondent's title came from a prior owner, and in their deed of sale,
the parties thereto reserved as an easement of way:
. . .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS,
more or less, had been converted into a private alley for the benefit of
neighboring estates, this being duly annotated at the back of the covering
transfer Certificate of title per regulations of the Office of the City Engineer of
Manila and that the three meterwide portion of said parcel along the Pasig
River, with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS,
more or less, had actually been expropriated by the City Government, and
developed pursuant to the beautification drive of the Metro Manila Governor.
(p. 3, Record).2
As a consequence, an annotation was entered in the private respondent's title, as
follows:
Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY It is hereby
made of record that a construction of private alley has been undertaken on
the lot covered by this title from Concepcion Street to the interior of the
aforesaid property with the plan and specification duly approved by the City
Engineer subject to the following conditions to wit: (1) That the private alley
shall be at least three (3) meters in width; (2) That the alley shall not be
closed so long as there's a building exists thereon (sic); (3) That the alley shall
be open to the sky; (4) That the owner of the lot on which this private alley
has been constituted shall construct the said alley and provide same with
concrete canals as per specification of the City Engineer; (5) That the
maintenance and upkeep of the alley shall be at the expense of the registered
owner; (6) That the alley shall remain open at all times, and no obstructions
whatsoever shall be placed thereon; (7) That the owner of the lot on which the
alley has been constructed shall allow the public to use the same, and allow
the City to lay pipes for sewer and drainage purposes, and shall not act (sic)
for any indemnity for the use thereof; and (8) That he shall impose upon the
vendee or new owner of the property the conditions abovementioned; other
conditions set forth in Doc. No. 4236, Page No. 11, Book No. 84 of Nicasio P.
Misa, Not. Pub. of Manila.3
The petitioner claims that ever since, it had (as well as other residents of
neighboring estates) made use of the above private alley and maintained and
contributed to its upkeep, until sometime in 1983, when, and over its protests, the
private respondent constructed steel gates that precluded unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against the
private respondent, to have the gates removed and to allow full access to the
easement.

The court a quo shortly issued ex parte an order directing the private respondent to
open the gates. Subsequently, the latter moved to have the order lifted, on the
grounds that: (1) the easement referred to has been extinguished by merger in the
same person of the dominant and servient estates upon the purchase of the
property from its former owner; (2) the petitioner has another adequate outlet; (3)
the petitioner has not paid any indemnity therefor; and (4) the petitioner has not
shown that the right-of-way lies at the point least prejudicial to the servient estate.
The private respondent's opposition notwithstanding, the trial court issued a
"temporary writ of preliminary injunction to continue up to the final termination of
the case upon its merits upon the posting of a P5,000.00 bond by the plaintiff. 4 (the
petitioner herein).
Thereafter, the respondent corporation answered and reiterated its above defenses.
On April 15, 1986, the petitioner moved for summary judgment and the court a
quo ruled on the same as follows:
In view of the foregoing, this Court finds it unnecessary to try this case on the merit
(sic) and hereby resolve (sic) to grant the plaintiffs motion for summary judgment.
(pp. 15-107, Record).5
On January 19, 1987, the trial court rendered judgment against the private
respondent, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the temporary
mandatory injunction, that had been issued against the defendant, and for the
defendant to pay the plaintiff the costs of this suit.
The defendant's counterclaim against the plaintiff is hereby dismissed, for lack
of merit. (Summary Judgment, p. 6).6
The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a
petition for the cancellation of the annotation in question. The court granted
cancellation, for which the petitioner instituted CA-G.R. SP No. 13421 of the
respondent Court of Appeals which ordered the restoration of the annotation
"without prejudice [to] the final outcome of7 the private respondent's own appeal
(subject of this petition).
In reversing the trial court which had, as earlier mentioned, rendered summary
judgment, the respondent Court of Appeals held that the summary judgment was
improper and that the lower court erroneously ignored the defense set up by the
private respondent that the easement in question had been extinguished. According
to the Appellate Court, an easement is a mere limitation on ownership and that it
does not impair the private respondent's title, and that since the private respondent
had acquired title to the property, "merger" brought about an extinguishment of the
easement.

The petitioner submits that the respondent Court of Appeals erred, because the
very deed of sale executed between the private respondent and the previous owner
of the property "excluded" the alley in question, and that in any event, the intent of
the parties was to retain the "alley" as an easement notwithstanding the sale.
As already stated at the outset, the Court finds merit in the petition.
There is no question that an easement, as described in the deed of sale executed
between the private respondent and the seller, had been constituted on the private
respondent's property, and has been in fact annotated at the back of Transfer
Certificate of Title No. 128784. Specifically, the same charged the private
respondent as follows: "(6) That the alley shall remain open at all times, and no
obstructions whatsoever shall be placed thereon; (7) That the owner of the lot on
which the alley has been constructed shall allow the public to use the same, and
allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] for
any indemnity for the use thereof. . ."8 Its act, therefore, of erecting steel gates
across the alley was in defiance of these conditions and a violation of the deed of
sale, and, of course, the servitude of way.
The Court then is of the opinion that injunction was and is proper and in denying
injunctive relief on appeal, the respondent Appellate Court committed an error of
judgment and law.
It is hardly the point, as the Court of Appeals held, that the private respondent is
the owner of the portion on which the right-of-way had been established and that an
easement can not impair ownership. The petitioner is not claiming the easement or
any part of the property as its own, but rather, it is seeking to have the private
respondent respect the easement already existing thereon. The petitioner is
moreover agreed that the private respondent has ownership, but that nonetheless,
it has failed to observe the limitation or encumbrance imposed on the same
There is therefore no question as to ownership. The question is whether or not an
easement exists on the property, and as we indicated, we are convinced that an
easement exists.
It is true that the sale did include the alley. On this score, the Court rejects the
petitioner's contention that the deed of sale "excluded" it, because as a mere rightof-way, it can not be separated from the tenement and maintain an independent
existence. Thus:
Art. 617. Easements are inseparable from the estate to which they actively or
passively belong.9
Servitudes are merely accessories to the tenements of which they form
part.10 Although they are possessed of a separate juridical existence, as mere
accessories, they can not, however, be alienated 11 from the tenement, or
mortgaged separately.12
The fact, however, that the alley in question, as an easement, is inseparable from
the main lot is no argument to defeat the petitioner's claims, because as an

easement precisely, it operates as a limitation on the title of the owner of the


servient estate, specifically, his right to use (jus utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that "a
portion thereof [of the tenement] measuring NINE HUNDRED FOURTEEN SQUARE
METERS, more or less, had been converted into a private alley for the benefit of the
neighboring estates. . ."13 and precisely, the former owner, in conveying the
property, gave the private owner a discount on account of the easement, thus:
WHEREAS, to compensate for the foregoing, the parties hereto agreed to
adjust the purchase price from THREE MILLION SEVEN HUNDRED NINETY
THOUSAND FOUR HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION
FIVE HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS
(P3,503,240.00)14
Hence, and so we reiterate, albeit the private respondent did acquire ownership
over the property including the disputed alley as a result of the conveyance, it
did not acquire the right to close that alley or otherwise put up obstructions thereon
and thus prevent the public from using it, because as a servitude, the alley is
supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that of the Court of Appeals,
that no genuine merger took place as a consequence of the sale in favor of the
private respondent corporation. According to the Civil Code, a merger exists when
ownership of the dominant and servient estates is consolidated in the same
person.15 Merger then, as can be seen, requires full ownership of both estates.
One thing ought to be noted here, however. The servitude in question is a personal
servitude, that is to say, one constituted not in favor of a particular tenement (a real
servitude) but rather, for the benefit of the general public.
Personal servitudes are referred to in the following article of the Civil Code:
Art. 614. Servitudes may also be established for the benefit of a community,
or of one or more persons to whom the encumbered estate does not belong. 16
In a personal servitude, there is therefore no "owner of a dominant tenement" to
speak of, and the easement pertains to persons without a dominant estate, 17 in this
case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant owner
relationship, and the termination of that relation leaves the easement of no use.
Unless the owner conveys the property in favor of the public if that is possible
no genuine merger can take place that would terminate a personal easement.
For this reason, the trial court was not in error in rendering summary judgment, and
insofar as the respondent Court of Appeals held that it (the trial court) was in error,
the Court of Appeals is in error.

10

Summary judgments under Rule 34 of the Rules of Court are proper where there is
no genuine issue as to the existence of a material fact, and the facts appear
undisputed based on the pleadings, depositions, admissions, and affidavits of
record.18 In one case, this Court upheld a decision of the trial court rendered by
summary judgment on a claim for money to which the defendant interposed the
defense of payment but which failed to produce receipts. 19 We held that under the
circumstances, the defense was not genuine but rather, sham, and which justified a
summary judgment. In another case, we rejected the claim of acquisitive
prescription over registered property and found it likewise to be sham, and
sustained consequently, a summary judgment rendered because the title
challenged was covered by a Torrens Certificate and under the law, Torrens titles are
imprescriptible.20
We also denied reconveyance in one case and approved a summary judgment
rendered thereon, on the ground that from the records, the plaintiffs were clearly
guilty of laches having failed to act until after twenty-seven years. 21 We likewise
allowed summary judgment and rejected contentions of economic hardship as an
excuse for avoiding payment under a contract for the reason that the contract
imposed liability under any and all conditions.22
In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a
sham one, because as we said, merger is not possible, and secondly, the sale
unequivocally preserved the existing easement. In other words, the answer does
not, in reality, tender any genuine issue on a material fact and can not militate
against the petitioner's clear cause of action.
As this Court has held, summary judgments are meant to rid a proceeding of the
ritual of a trial where, from existing records,23 the facts have been established, and
trial would be futile.
What indeed, argues against the posturing of the private respondent and
consequently, the challenged holding of the respondent Court of Appeals as well
is the fact that the Court of Appeals itself had rendered judgment, in its CA-G.R. No.
13421, entitled Solid Manila Corporation v. Ysrael, in which it nullified the
cancellation of the easement annotated at the back of the private respondent's
certificate of title ordered by Judge Ysrael in LRC Case No. 273. As the petitioner
now in fact insists, the Court of Appeals' judgment, which was affirmed by this Court
in its Resolution dated December 14, 1988, in G.R. No. 83540, is at least, the law of
the case between the parties, as "law of the case" is known in law, e.g.:
xxx

xxx

xxx

Law of the case has been defined as the opinion delivered on a former appeal.
More specifically, it means that whatever is once irrevocably established as
the controlling legal rule of decision between the same parties in the same
case continues to be the law of the case, whether correct on general principles
or not, so long as the facts on which such decision was predicated continue to
be the facts of the case before the court. (21 C.J.S. 330) (Emphasis supplied).

11

It may be stated as a rule of general application that, where the evidence on a


second or succeeding appeal is substantially the same as that on the first or
preceding appeal, all matters, questions, points, or issues adjudicated on the
prior appeal are the law of the case on all subsequent appeals and will not be
considered or readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.)
In accordance with the general rule stated in Section 1821, where, after a
definite determination, the court has remanded the cause for further action
below, it will refuse to examine question other than those arising subsequently
to such determination and remand, or other than the propriety of the
compliance with its mandate; and if the court below has proceeded in
substantial conformity to the directions of the appellate court, its action will
not be questioned on a second appeal.
As a general rule a decision on a prior appeal of the same case is held to be
the law of the case whether that decision is right or wrong, the remedy of the
party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77).
(Emphasis supplied.)
Questions necessarily involved in the decision on a former appeal will be
regarded as the law of the case on a subsequent appeal, although the
questions are not expressly treated in the opinion of the court, as the
presumption is that all the facts in the case bearing on the point decided have
received due consideration whether all or none of them are mentioned in the
opinion. (5 C.J.S. 1286-87). (Emphasis supplied.) 24
CA-G.R. No. 13421 is the law of the case because clearly, it was brought to
determine the rights of the parties regarding the easement, subject of the
controversy in this case, although as a petition for "cancellation of annotation" it
may have, at a glance, suggested a different cause of action.
And for reasons of fair play, the private respondent can not validly reject CA-G.R.
No. 13421 as the law of the case, after all, it was the one that initiated the
cancellation proceedings with the Regional Trial Court in LRC No. 273 that
precipitated that appeal. In the second place, the proceedings for cancellation of
annotation was in fact meant to preempt the injunction decreed by the lower court
in this case. Plainly and simply, the private respondent is guilty of forum-shopping,
as we have described the term:
xxx

xxx

xxx

There is forum-shopping whenever, as a result of an adverse opinion in one


forum, a party seeks a favorable opinion (other than by appeal or certiorari) in
another. The principle applies not only with respect to suits filed in the courts
but also in connection with litigations commenced in the courts while an
administrative proceeding is pending, as in this case, in order to defeat
administrative processes and in anticipation of an unfavorable administrative
ruling and a favorable court ruling. This is specially so, as in this case, where
the court in which the second suit was brought, has no jurisdiction. 25

12

to which contempt is a penalty.26


As it happened, in its effort to shop for a friendly forum, the private respondent
found an unfriendly court and it can not be made to profit from its act of
malpractice by permitting it to downgrade its finality and deny its applicability as
the law of the case.
As a personal servitude, the right-of-way in question was established by the will of
the owner.
In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo,27 this Court,
speaking through Justice Claro Recto, declared that a personal servitude (also a
right of way in that case) is established by the mere "act" 28 of the landowner, and is
not "contractual in the nature,"29 and a third party (as the petitioner herein is a third
party) has the personality to claim its benefits. In his separate opinion, however,
Justice Jose Laurel maintained that a personal or voluntary servitude does require a
contract and that "[t]he act of the plaintiff in opening the private way here involved
did not constitute an offer . . . "30 and "[t]here being no offer, there could be no
acceptance; hence no contract."31
The Court sees no need to relive the animated exchanges between two legal titans
(they would contend even more spiritedly in the "larger" world of politics) to whom
present scholars perhaps owe their erudition and who, because of the paths they
have taken, have shaped history itself; after all, and coming back to the case at bar,
it is not disputed that an easement has been constituted, whereas it was disputed
in North Negros' case. Rather, the question is whether it is still existing or whether it
has been extinguished. As we held, our findings is that it is in existence and as a
consequence, the private respondent can not bar the public, by erecting an
obstruction on the alley, from its use.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET
ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. The
petitioner and its counsel are hereby required to SHOW CAUSE why they should not
be punished for contempt of court, and also administratively dealt with in the case
of counsel, for forum shopping.
IT IS SO ORDERED.
G.R. No. L-17482

March 31, 1966

GENOVEVA R. JABONETE, ET AL., plaintiffs,


vs.
JULIANA MONTEVERDE, ET AL., defendants,
ANTONIO LEGASPI, respondent-appellant,
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee,
MRS. LUZ ARCILLA, petitioner-intervenor-appellee.

13

This is an appeal from an order of the Court of First Instance of Davao, dated March
11, 1960, finding the respondent-appellant, Antonio Legaspi, guilty of contempt of
court, and imposing upon him a fine of P100.
On March 11, 1954, the Court of First Instance of Davao, in view of its finding in
Case No. 824, entitled Jabonete vs. Monteverde, et al., that Antonio Legaspi
acquired the lot in question with the knowledge that a "gravamen" or easement of
right of way existed thereon, promulgated a decision the dispositive portion of
which reads:
Ordena al demandado Antonio Legaspi la demolicion de la parte del corral
construido a lo largo de su terreno que impide a lote demandantes tener
acceso con la vereda que communica con la carretera principal, Tomas
Claudio.
Declara que los demandantes tienen derecho el uso de la vereda (Exh. A-3),
de 3 metros de ancho, unico paso que disponen para communicarse con la
Calle Tomas Claudio, para el paso de sus jeeps, y los vehiculos, reparados que
entran y salen del taller de reparacion de aquellos.
The respondent-appellant received a copy of the decision on May 12, 1954. Two
days later, May 14, 1954 he filed his notice of appeal therefrom. On May 21, 1954
however, upon a previous motion of the plaintiffs, the lower court issued an order
granting discretionary execution of the said decision. In view of this last mentioned
order, the plaintiffs immediately proceeded to the premises in question and opened
in the fence of the defendant Antonio Legaspi a sufficient opening for the passage
of men and vehicles. Even then, however, the defendant filed with the court below
on that very same day, May 21, 1954, a motion for the reconsideration of the order
granting discretionary execution. Thereafter, and upon the lower court's suggestion,
the parties entered into an amicable agreement which was later embodied in an
order or "auto" dated May 24, 1954, to wit:
A raiz de la mocion del demandado pidiendo antre otras cosas, la
reconsideracion de la orden de ejecucion de la decision dictada en esta causa,
el 22 del Mayo de 1954, el Juez que preside esta sala se constituyo para una
inspeccion ocular en el lugar en conflicto.
Durante la inspeccion ocular, los demandantes y demandado, Antonio
Legaspi, llegaron a un acuerdo:
1. Los demandantes no instalaran en su terreno su taller de reparacion de
vehiculos de motor.

14

2. Los demandantes pueden construir su garaje dentro de su terreno para su


jeep (AC), pero no los tendran parados en la calle privada del demandados
construida por este en su terreno a lo largo del terreno de los demandantes;
3. Los demandantes contribuiran a prorata con el demandado los gastos de
reparacion de la calle privada construida por el referido demandado en su
terreno a lo largo del terreno de los demandantes.1wph1.t
4. El demandado, Antonio Legaspi, permitira el uso y paso en la calle privada
construida por el en su terreno a lo largo del terreno de los demandantes, a
estos, su familia, sus amigos, chofers, servidumbre y de sus jeeps.
5. Para los fines del uso de la calle, el demandado permitira a los
demandantes, frente de la casa de estos, abrir una puerta de 4 metros de
ancho en el corral construido por el demandado que separa la calle privada y
el terreno de los demandantes, a su (demandantes) costa; sus hojas tendran
por dentro, que los demandantes tendran cerradas para evitar que los nios,
hijos de los inquilinos del demandado tengan acceso a los jeeps de los
demandantes, cuyo garaje tendran dentro de su (demandantes) terreno.
El Juzgado ordena a las partes litigantes complan estrictamente con lo
estipulado; de los contrario, los mismos estaran sujetos a las ordenes de este
Juzgado.
As a result of the above agreement and Order of May 24, 1954, the defendant
abandoned the prosecution of his appeal. At the same time, both parties complied
with its terms until the plaintiffs, unable to continue with their repair shop,
transferred to another place in December 1959 whereupon the defendant
reconstructed his fence and its footing, closing thereby the opening previously
made by the plaintiffs.
In the course of time, the plaintiffs' lot was foreclosed by the Development Bank of
the Philippines (DBP) which, later still, conveyed it under a conditional sale to Mrs.
Luz Arcilla. On her acquisition of the said lot, Mrs. Arcilla demanded of the
defendant the re-opening of the fence in question as it was her plan to construct
her house in the said lot. When the defendant refused, the Development Bank filed
with the lower court a petition to hold the said defendant in contempt. To this
petition, Mrs. Luz Arcilla later intervened and was so allowed by the lower court. The
Development Bank of the Philippines and Mrs. Luz Arcilla contended that the refusal
of the defendant to cause or allow the making of an opening in his fence was a
defiance of the said court's decision of March 11, 1954 and was, therefore,
contemptuous. After due hearing, the lower court sustained the petitioners and
found the defendant guilty of contempt with orders "to pay a fine of One Hundred
Pesos (P100.00) and to open the vereda or alley leading to the lot owned by the

15

Development Bank of the Philippines and conveyed to Mrs. Luz S. Arcilla under a
conditional deed of sale, otherwise he should be imprisoned until he does so." Thus,
the instant appeal.
The respondent-appellant maintains that the lower court erred in finding him guilty
of contempt because:
1. The decision of March 11, 1954 was novated by the order of May 24, 1954.
Consequently, he could not have violated the former decree since with its
novation it ceased to have any legal effect.
2. Even assuming that the said decision was not novated by the subsequent
order of May 24, 1954, still he could not be deemed to have violated the said
decision because the same never became final and executory. The
respondent-appellant argued that since the decision of March 11, 1954
ordered the opening of a right of way in his property without providing for this
corresponding compensation to him, contrary to Article 649 of the Civil
Code,1 there was in the said decision "a void which ought to be filled or to be
done in order to completely dispose of the case. It was not clear, specific and
definitive," and consequently, a judgment that could not have acquired
finality.
3. The right to file contempt proceedings against him, with respect to the
decrees contained in the decision of March 11, 1954, has prescribed. The
respondent-appellant conceded that there is no prescriptive period for the
institution of contempt proceedings. However, he contended that inasmuch as
contempt under Rule 64 of the Rules of Court is punishable by arresto mayor,
it should prescribe in five years just as crimes for which the said penalty is
imposed prescribe, under the Penal Code, in five years.
Without passing on the merits or demerits of the foregoing arguments, this Court
believes that the order finding the respondent-appellant guilty of contempt should
be reversed. It is clear that the order of May 24, 1954 superseded and was fully
intended by the lower court to modify or stand in substitution of the decision of
March 11, 1954. More than the expression of the parties amicable agreement on the
dispute, the said order was the lower court's resolution of the respondentappellant's motion for reconsideration of the decision of March 11, 1954. In the
determination, therefore, of the said appellant's obligation relative to the easement
in question, the latter and not the decision of March 11, 1954 is the proper point in
reference.
Under the aforesaid order of May 24, 1954, the easement awarded or secured by
the lower court to the plaintiffs was strictly a personal one. The right of way granted

16

was expressly limited to the latter and their "family, friends, drivers, servants and
jeeps." In the very language of the agreement the following appears:
El demandado Antonio Legaspi, permitira el uso y paso en la calle privada
construida por el en su terreno a lo largo del terreno de los demandantes, a
estos, su familia, sus amigos, chofers, servidumbre y de sus jeeps.
The servitude established was clearly for the benefit alone of the plaintiffs and the
persons above enumerated and it is clear that the lower court, as well as the parties
addressed by the said order, did not intend the same to pass on to the plaintiffs'
successors-in-interest. In other words, the right acquired by the original plaintiffs
was a personal servitude under Article 614 of the Civil Code, and not a predial
servitude that inures to the benefit of whoever owns the dominant estate.
In resisting the extension of the aforementioned easement to the latter, the
plaintiffs' successors-in-interest, the respondent-appellant, therefore, was not
defying the decision of March 11, 1954 which was then no longer subsisting, nor the
order of May 24, 1954 since the said successors-in-interest had no right thereunder.
Another evidence that the servitude in question was personal to the plaintiffs is the
fact that the same was granted to the latter without any compensation to the
respondent-appellant.
Wherefore, the order of the lower court dated March 11, 1960 finding the
respondent-appellant guilty of contempt is hereby reversed, without
pronouncement as to costs.
G.R. No. L-10619

February 28, 1958

LEOGARIO RONQUILLO, ET AL., plaintiffs-appellants,


vs.
JOSE ROCO, as Administrator of VICENTE, ROCO Y. DOMINGUEZ ET
AL., defendants-appellees.
Involving as it does only a question of law, the present appeal from the order of the
Court of First Instance of Camarines Sur, dated March 6, 1955, dismissing the
amended and supplemental complaint of plaintiffs on motion of defendants that it
did not state a cause of action, was taken directly to this Court.
The facts and the issue involved in the appeal are well and correctly stated in the
appealed order, the pertinent portion of which we are reproducing and making our
own:
The amended and supplemental complaint alleged that the plaintiffs have
been in the continuous and uninterrupted use of a road or passage way which
traversed the land of the defendants and their predecessors in interest, in
going to Igualdad Street and the market place of Naga City, from their

17

residential land and back, for more than 20 years; that the defendants and the
tenants of Vicente Roco, the predecessors in interest of the said defendants
have long recognized and respected the private legal easement of road right
of way of said plaintiffs; that on May 12, 1953, the defendants Jose Roco thru
his co-defendants, Raymundo Martinez and their men with malice
aforethought and with a view to obstructing the plaintiffs' private legal
easement over the property of the late Vicente Roco, started constructing a
chapel in the middle of the said right of way construction actually impeded,
obstructed and disturbed the continuous exercise of the rights of the plaintiffs
over said right of way; that on July 10, 1954 the new defendants Natividad
Roco and Gregorio Miras, Jr. with the approval of the defendant, Jose Roco and
with the help of their men and laborers, by means of force, intimidation, and
threats, illegally and violently planted wooden posts, fenced with barbed wire
and closed hermitically the road passage way and their right of way in
question against their protests and opposition, thereby preventing them from
going to or coming from their homes to Igualdad Street and the public market
of the City of Naga.
It is very clear from the allegations of the plaintiffs in their amended and
supplemental complaint, that they claim to have acquired the easement of
right of way over the land of the defendants and the latter's predecessors in
interest, Vicente Roco, thru prescription by their continuous and uninterrupted
use of a narrow strip of land of the defendants as passage way or road in
going to Igualdad Street and the public market of Naga City, from their
residential land or houses, and return.
The only question therefore to determine in this case, is whether an easement
of right of way can be acquired thru prescription.
The dismissal was based on the ground that an easement of right of way though it
may be apparent is, nevertheless, discontinuous or intermittent and, therefore,
cannot be acquired through prescription, but only by virtue of a title. Under old as
well as the New Civil Code, easements may be continuous discontinuous
(intermittent), apparent or non-apparent, discontinuous being those used at more or
less long intervals and which depend upon acts of man (Articles 532 and 615 of the
Old and New Civil Codes, respectively). Continuous and apparent easements are
acquired either, by title or prescription, continuous non-apparent easements and
discentinuous ones whether apparent or not, may be acquired only by virtue of a
title (Articles 537 and 539, and 620 and 622 of the Old and New Civil Codes,
respectively).
Both Manresa and Sanchez Roman are of the opinion the easement of right of way
is a discontinuous one:
En cambio, las servidumbres discontinues se ejercitan por un hecho del
hombre, y precisamente por eso son y tienen que ser discontinuas, porque es
imposible fisicamente que su uso sea incesante. Asi, la servidumbre de paso
es discontinua, porque no es posible que el hombre este pasando
continuamente por el camino, vereda o senda de que se trate. (4 Manresa,
Codigo Civil Espaol, 5th ed, p. 529).

18

. . . "5 Por razon de los modos de disfrutar las servidumbres, en


continuas y discontinuas (1). Lascontinuas son aquelles cuyo uso es o puede
ser incesante, sin la intervencion de ningun hecho del hombre, como son las
de luces y otras de la misma especie; y las discontinuas, las que se usan
intervalos, mas o menos largos, y dependen de actos del hombre, como las de
sen senda, carrera y otras de esta clase. (3 Sanchez Roman, Derecho Civil, p.
488).
Under the provisions of the Civil Code, old and new, particularly the articles thereof
aforecited, it would therefore appear that the easement of right of way may not be
acquired through prescription. Even Article 1959 of the Old Civil Code providing for
prescription of ownership and other real rights in real property, excludes therefrom
the exception established by Article 539, referring to discontinuous easements,
such as, easement of right of way. (Bargayo vs. Camumot, 40 Phil., 857, 867).
In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point in issue was
whether or not vested rights in a right of way can be acquired through user from
time immemorial, this Court said:
It is evident, therefore, that no vested right by user from time immemorial had
been acquired by plaintiffs at the time the Civil Code took effect. Under that
Code (Article 539) ino discontinuous easement could be acquired by
prescription in any event.
However, in the case of Municipality of Dumangas is Bishop of Jaro, 34 Phil., 545,
this same Tribunal held that the continued use by the public of a path over land
adjoining the Catholic church in going to and from said church through its side door,
has given the church the right to such use by prescription, and that because of said
use by the public, an easement of right of way over said land has been acquired by
prescription, not only by the church, but also by the public, which without objection
or protest on the part of the owner of said land, had continually availed itself of the
easement.
The minority of which the writer of this opinion is a part, believes that the easement
of right of way may now be acquired through prescription, at least since the
introduction into this jurisdiction of the special law on prescription through the Old
Code of Civil Procedure, Act No. 190. Said law, particularly, Section 41 thereof,
makes no distinction as to the real rights which are subject to prescription, and
there would appear to be no valid reason, at least to the writer of this opinion, why
the continued use of a path or a road or right of way by the party, specially by the
public, for ten years or more, not by mere tolerance of the owner of the land, but
through adverse use of it, cannot give said party a vested right to such right of way
through prescription.
The uninterrupted and continuous enjoyment of a right of way necessary to
constitute adverse possession does not require the use thereof every day for
the statutory period, but simply the exercise of the right more or less
frequently according to the nature of the use. (17 Am. Jur. 972)

19

Even under the case of Cuaycong vs. Benedicto (supra), this Tribunal insinuated the
rule that no discontinuous easement, like an easement of right of way, may, under
Article 539 of the Old Civil Code, be acquired, might possibly have been changed by
the provisions of the Code of Civil Procedure relative to prescription.
. . . Assuming, without deciding, that this rule has been changed by the
provisions of the present Code of Civil Procedure relating to prescription, and
that since its enactment discontinuous easement of acquired by prescription,
it is clear that this would not by avail plaintiffs. The Code of Civil Procedure
went into effect on October 1, 1901. The term of prescription for the
acquisition of right in real estate is fixed by the Code (section 41) at ten years.
The evidence shows that in February, 1911, before the expiration of the term
of ten years since the time the Code of Civil Procedure took effect, the
defendants interrupted the use of the road by plaintiffs by constructing and
maintaining a toll gate on, it collecting toll from persons making use of it with
carts and continued to do so until they were enjoin by the granting of the
preliminary injunction by the trial court in December 1912. . .
(Cuayong vs. Benedicto, 37 Phil., 781, 796).
Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code, Vol. I,
p. 340, would appear to be of the opinion that under, the provision of the Code of
Civil Procedure relative to prescription, even discontinuous easements, like the
easement right of way, may be acquired through prescription:
. . . "It is submitted that under Act No. 190, even discontinuous servitudes can
be acquired by prescription, provided it can be shown that the servitude was
actual, open, public, continuous, under a claim of title exclusive of any other
right and adverse to all other claimants'."
However, the opinion of the majority must prevail, and it is held that under the
present law, particularly, the provisions of the Civil Code, old and new, unless and
until the same is changed or clarified, the easement of right of way may not be
acquired through prescription.
In view of the foregoing, the order appealed from is hereby affirmed. No costs.
Bengzon, Bautista Angelo, Labrador, Concepcion, Endencia, and Felix, JJ., concur.
Padilla, J., concurs in the result.
Separate Opinions
REYES, J.B.L., J., concurring:
I would like to elaborate my reasons for concurring with the majority in declaring
the easement of right of way not acquirable by prescription.
The essence of this easement ("servidumbre de paso") lies in the power of the
dominant owner to cross or traverse the servient tenement without being prevented
or disturbed by its owner. As a servitude, it is a limitation on the servient owner's
rights of ownership, because it restricts his right to exclude others from his property.

20

But such limitation exists only when the dominant owner actually crosser, or passes
over the servient estate; because when he does not, the servient owner's right of
exclusion is perfect and undisturbed. Since the dominant owner can not be
continually and uninterruptedly crossing the servient estate, but can do so only at
intervals, the easement is necessarily of an intermittent or discontinuous nature.
Because possession of a right consists in the enjoyment of that right (old Civil Code,
Art. 430; Art. 423, new Civil Code) and to enjoy a right is to exercise it, it follows
that the possession (enjoyment or exercise) of a right of way is intermittent and
discontinuous. From this premise, it is inevitable to conclude, with Manresa and
Sanchez Roman, that such easement can not be acquired by acquisitive prescription
(adverse possession) because the latter requires that the possession
be continuous or uninterrupted (old Civil Code, Art. 1941; new Civil Code, Art.
1118).
The Code of Civil Procedure (Act 190) did not change the situation. Observe that its
section 41, in conferring prescriptive title upon "ten years adverse possession"
qualifies it by the succeeding words "uninterruptedly continued for ten years which
is the same condition of continuity that is exacted by the Civil Code.
SEC. 41. Title to Land by Prescription. Ten years actual adverse possession
by any person claiming to be the owner for that time of any land or interest in
land, uninterruptedly continued for ten years by occupancy, descent, grants,
or otherwise, in whatever way such occupancy may have commenced or
continued, shall vest in every actual occupant or possessor of such land a full
and complete title, saving to the persons under disabilities the rights secured
the next section. In order to constitute such title by prescription or adverse
possession, the possession by the claimant or by the person under or through
whom he claims must have been actual, open, public, continous, under a
claim of title exclusive of any other right and adverse to all other claimants.
But failure to occupy or cultivate land solely by reason of war shall not be
deemed to constitute an interruption of possession of the claimant, and his
title by prescription shall he complete, if in other regrets perfect,
notwithstanding such failure to occupy or cultivate the land during the
continuance of war.
The case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil. 541, does not, if
properly analyzed, constitute authority to hold that the easement of right of way is
acquirable by prescription or adverse possession. The Court there said:
The record shows that the church of the pueblo of Dumangas was constructed
in or about the year 1987; that wall on the southeast side adjoins the building
lot in question; and that since the construction of the church there has been a
side door in this wall through which the worshippers attending divine service
enter and leave, they having to pass over and cross the land in question. It is
therefore to be presumed that the use of said side door also carries with it the
use by faithful Catholics of the municipal land over which they have had to
pass in order to gain access to said place of worship, and, as this use of the
land has been continuous, it is evident that the Church has acquired a right to
such use by prescription, in view of the time that has elapsed since the church

21

was built and dedicated to religious worship, during which period the
municipality has not prohibited the passage over the land by the persons who
attend services customarily held in said church.
The record does not disclose the date when the Government ceded to the
Church the land on which the church building was afterwards erected, nor the
date of the laying out of the adjacent square that is claimed by the
municipality and on which the side door of the church, which is used as an
entrance by the people who frequent this building, gives. There are good
grounds for presuming that in apportioning lands at the time of the
establishment of the pueblo of Dumangas and in designating the land
adjacent to the church as a public square, this latter was impliedly
encumbered with the easement of a right of way to allow the public to enter
and leave the church a case provided for by article 567 of the Civil Code
for the municipality has never erected any building or executed any work
which would have obstructed the passage and access to the side door of the
church, and the public has been enjoying the right of way over the land in
question for an almost immemorable length of time. Therefore an easement of
right of way over said land has been acquired by prescription, not only by the
church, but also by the public which, without objection or protest, has
continually availed itself of the easement in question. (34 Phil., pp. 545-546).
It will be seen that the ratio decidendi of that case lies in the application of Article
567 of the old Civil Code that provides as follows:
ART. 567. When an estate acquired by purchase, exchange, or partition is
enclosed by other estates of the vendor, exchanger, or co-owner, the latter
shall be obliged to grant a right of way without indemnity, in the absence of
an agreement to the contrary.
Bearing in mind the provisions of the article quoted in relation to the wording of the
decision in the Dumangas case, it can be seen that what the court had in mind is
that when the Spanish Crown apportioned the land occupied by the Church of
Dumangas, it impliedly burdened the neighboring public square (which was also
Crown property at the time) with an easement of right of way to allow the public to
enter and leave the church, because without such easement the grant in favor of
ecclesiastical authorities would be irrisory: what would be the use of constructing a
church if no one could enter it? Now, if there was an implied grant of the right of
way by the Spanish Crown, it was clearly unnecessary to justify the existence of the
easement through prescriptive acquisition. Why then does the decision repeatedly
speak of prescription? Plainly, the word "prescription" was used in the decision not
in the sense of adverse possession for ten or thirty years, but in the sense of
"immemorial usage" that under the law anterior to the Civil Code of 1889, was one
of the ways in which the servitude of right of way could be acquired. 1 This view is
confirmed by the fact that throughout the passages hereinabove quoted, the court's
decision stresses that the people of Dumangas have been passing over the public
square to go to church since the town was founded and the church was built, an
"almost immemorable length of time." It would seem that the term "priscription"
used in said case was merely a loose expression that is apt to mislead unless the
court's reasoning is carefully analyzed.

22

Since 1889, however, the Civil Code repealed the prior legislation; and thereafter
the right of way could only be acquired by title and not by adverse possession
(usucapio), saving those servitudes already acquired before the Code came into
effect (Decisions, Supreme Court of Spain 27 Oct. 1900, 1st February 1912; 11 May
1927, and 7 January 1920).
G.R. No. L-33507 July 20, 1981
FE P. VELASCO, represented by ALFREDO GONZALES, petitioner,
vs.
HON. VICENTE N. CUSI, JR. and THE CITY OF DAVAO, respondents.
Petitioner filed in the Court of First Instance of Davao an action against Davao City
to quiet title to her lot known as Lot 77-B-2, a portion of which she claims to having
been occupied illegally as part of Bolton Street, Davao City. On a motion to dismiss
filed by the defendant, on the ground that the complaint states no cause of action,
the Court, presided over by respondent Judge Hon. Vicente Cusi Jr., dismissed the
case. Hence, this petition for certiorari seeking a review of the Order of dismissal
dated July 11, 1970 (Annex D to tile Petition). 1
The dismissal being on the ground that the complaint does not state a cause of
action, the allegations of the complaint have to be closely examined, as the court a
quo did in its Order aforecited which quoted the material allegations of the
complaint as follows:
The action is to quiet title and damages. But the complaint does not
allege any cloud or doubt on the title, 'Transfer Certificate of Title No. T7000 of the Register of Deeds of the City of Davao, of the plaintiff to Lot
No. 77-B-2, subdivision plan Psd-22295. According to the complaint, ' . . .
when plaintiff bought the said lot 77-B-2 from the original owner in 1956,
the Bolton Street was already existing; that without ascertaining the
monuments along Bolton Street, she had her house constructed on her
said lot and built fence along said Bolton Street which she believed to be
the boundary between her lot and said street and in line with other
offences already existing when she bought said lot; 6. That plaintiff has
just discovered, after a relocation of the monuments of her lot, Lot No.
77-B-2, that the Bolton Street of the defendant has encroached at least
TWENTY-FIVE (25) SQUARE METERS with dimension of 2.5 meters by 10
meters, making her actual occupation of her lot 10 meters by 47.5
meters, as indicated in the plan Annex "A" hereon enclosed thereon by
red pencil lines; 7. That plaintiff has just discovered also that the width of
the Bolton Street is only NINE (9) METERS and since the defendant is
now asphalting the said Bolton Street, plaintiff has filed this complaint in
order to quiet her title to the said portion of 2.5 meters by 10 meters as
shown in the plan enclosed in red pencil oil Annex "A" hereon because

23

the continued occupation of said portion by the defendant has cast a


cloud of doubt on the title of the plaintiff over the portion of plaintiff's Lot
No. 77-B-2 now being occupied by Bolton Street, valued at four hundred
pesos per square meters.
After quoting the material allegations of the complaint as above set forth, the
court a quo analyzed them carefully and scrutinizingly, and came up with the
conclusion that the allegations of the complaint state no cause of action. Thus
The allegations in the complaint that the Bolton Street encroached on
the lot of the plaintiff and that the defendant had continuously occupied
the portion so encroached upon do not, contrary to the conclusion of the
plaintiff found in the complaint, cast ' . . a cloud of doubt on the title of
the plaintiff over said portion which would justify this action.
In her present petition, petitioner assigned as error of the court a quo the following:
1. THE LOWER COURT ERRED IN DECLARING THAT THE BOLTON STREET
AS AN EASEMENT MUST REMAIN A BURDEN ON LOT 77-B-2 (LOT IN
QUESTION) PURSUANT TO SECTION 39 OF ACT 496 ON THE GROUND
THAT IT IS SUBJECT TO EASEMENT OF PUBLIC HIGHWAY.
2. THE LOWER COURT ERRED IN DECLARING THAT THE PORTION OF THE
LAND OF PETITIONER ENCROACHED UPON BY THE RESPONDENT CITY OF
DAVAO'S BOLTON STREET DOES NOT CAST A CLOUD OF DOUBT IN THE
TITLE OF PETITIONER.
3. THE LOWER COURT ERRED IN DECLARING THAT ASSUMING THE FACTS
ALLEGED IN THE COMPLAINT TO BE TRUE, A JUDGMENT UPON THE SAME
IN ACCORDANCE WITH THE PRAYER COULD NOT BE RENDERED.
4. THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT FOR LACK
OF CAUSE OF ACTION.
As alleged by petitioner, the lot in question, Lot No. 77-B-2, which she bought in
1956, was part of Lot No. 77-B, which was in turn originally a portion of Lot No. 77,
covered by O.C.T. No. 683, issued on July 21, 1911. For the lot she bought, she
received Transfer Certificate of Title No. T-7000.
In 1970, petitioner discovered that the Bolton Street of the City of Davao had
encroached upon her a lot of portion of 2.5 meters wide and 10 meters long, along
said Street, or an area of 25 Square meters. She also discovered that Bolton Street
was delimited to nine (9) meters wide, but the proposed width was 15 meters, and
in that same year 1970, the Bolton Street had already encroached on her lot, on the

24

northwestern part thereof, to the extent as above stated (par. 7, Complaint, Annex
A. to Petition).
From The allegations of the complaint as set forth above, as well as inhe questioned
Order quoted earlier, We agree with respondent judge that the complaint states no
cause of action upon which to render judgment in favor of petitioner, even
assuming S the said allegations to be true, indeed, in a motion to dismiss for lack of
cause of action, the allegations of the complaint must be hypothetically admitted. 2
It appears on the face of the complaint that Bolton Street has been where it is from
time immemorial. When the mother title of petitioner's Transfer Certificate of Title
No. T- 7000, which is O.C.T. No. 638, was issued in 1911, it was issued subject to the
provisions of Section 39 of Act 496 which reads:
Section 39. Every person receiving a certificate of title in pursuance of a
decree or registration, and every subsequent purchasers of registered
land who takes a certificate of title for value in good faith shall hold the
same free of all encumbrances, except those noted on said certificate,
and any of the following encumbrances which may be subsisting namely:
xxx xxx xxx
Third. Any public highway, way, private way, ... or any government
irrigation, canal, or lateral thereof ...
From the foregoing provision, Bolton Street which is a public highway, already
subsisting when O.C.T. No. 638 was issued, as this fact is apparent too from the face
of the complaint itself, is deemed to have attached as a legal encumbrance to the
lot originally registered lot No. 77, notwithstanding the lack of an annotation thereof
on O.C.T. No. 638. petitioner, therefore, cannot rely, as she almost entirely does for
the relief she seeks, on the aforequoted provision, which she had repeatedly cited
but without making mention, perhaps conveniently, of the exception as expressly
provided in the later part of the legal provision invoked (Sec. 39, Act 496).
If from the undisputed fact Chat when Lot -77 was registered, Bolton Street had
already been a legal encumbrance on said lot, pursuant to Section 39 of Act 496,
contrary to petitioner's theory based on the same legal provision but o committing
the portion pertinent to the instant case, there can be no gainsaying the fact that
petitioner's lot, Lot No. 77-B-2, which admittedly was originally a part of Lot No. 77,
must have to remain subject to the same legal encumbrance of a public highway.
From her own allegations in her complaint, Bolton Street cannot be a discontinuous
easement as she claims it to be, which may not be acquired by prescription.
Nonetheless, whether the mode of acquisition of the easement that Bolton Street is,
would be only by virtue of title, as petitioner contends, this is not material or of any

25

consequence, in the present proceedings, once it indubitably appears as it does,


from the allegations of the complaint itself, that Bolton Street constituted an
easement of public highway on Lot No. 77, from which petitioner's lot was taken,
when the said bigger lot was original registered. It remained as such legal
encumbrance, as effectively as if it had been duly noted on the certificate of title,
by virtue of the clear and express provision of Section 39 of Act 496, it being
admitted that at the time of the registration of Lot 77, the public highway was
already in existence or subsisting. This fact erases whatever cause of action
petitioner may have to bring the complaint she filed in the court a quo for quieting
of title on a portion of the street which she claims to be part of her lot, free from
encumbrance of any kind. The Order complained of has only this legal postulate as
its basis. Nothing has been mentioned therein on the acquisition by the City of
Davao of the lot in question by prescription, and a discussion of this matter as is
found in petitioner's brief 3 would be entirely irrelevant.
WHEREFORE, no reversible error having been found in the Order complained of, the
same is hereby affirmed, and the instant petition, dismissed. Costs against
petitioner.
SO ORDERED.
G.R. No. L-37409 May 23, 1988
NICOLAS VALISNO, plaintiff-appellant,
vs.
FELIPE ADRIANO, defendant-appellee.
This case was certified to this Court by the Court of Appeals in a resolution dated
August 10, 1973, the sole issue being a question of law and beyond its jurisdiction.
to decide.
Admitted by the parties in their pleading and established during the trial on the
merits are the following material facts:
On June 20, 1960, 'the plaintiff-appellant file against the defendant-appellee an
action for damages docketed as Civil Case No. 3472 in the Court of First Instance of
Nueva Ecija. The complaint alleged that the plaintiff is the absolute owner and
actual possessor of a 557,949-square-meter parcel of land in La Fuente, Santa Rosa,
Nueva Ecija, and more particularly described in his Transfer Certificate of Title No.
NT-16281. The plaintiff-appellant Valisno bought the land from the defendantappellees sister, Honorata Adriano Francisco, on June 6,1959. (Deed of Absolute
Sale, Exh. "A".) The land which is planted with watermelon, peanuts, corn, tobacco,
and other vegetables adjoins that of the appellee Felipe Adriano on the bank of the
Pampanga River. Both parcels of land had been inherited by Honorata Adriano
Francisco and her brother, Felipe Adriano, from their father, Eladio Adriano. At the

26

time of the sale of the land to Valisno, the land was irrigated by water from the
Pampanga River through a canal about seventy (70) meters long, traversing the
appellee's land.
On December 16, 1959, the appellee levelled a portion of the irrigation canal so
that the appellant was deprived of the irrigation water and prevented from
cultivating his 57-hectare land.
The appellant filed in the Bureau of Public Works and Communications a complaint
for deprivation of water rights. A decision was rendered on March 22, 1960 ordering
Adriano to reconstruct the irrigation canal, "otherwise judicial action shall be taken
against him under the provisions of Section 47 of Act 2152 (the Irrigation Act), as
amended." Instead of restoring the irrigation canal, the appellee asked for a
reinvestigation of the case by the Bureau of Public Works and Communications. A
reinvestigation was granted.
In the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expense
because his need for water to irrigate his watermelon fields was urgent.
On June 20, 1960, he filed a complaint for damages in the Court of First Instance
(now Regional Trial Court) of Nueva Ecija (Civil Case No. 3472) claiming that he
suffered damages amounting to P8,000 when he failed to plant his fields that year
(1960) for lack of irrigation water, P800 to reconstruct the canal on defendant
Adriano's land, and P1,500 for attorney's fees and the costs of suit.
On October 25, 1961, the Secretary of Public Works and Communications reversed
the Bureau's decision by issuing a final resolution dismissing Valisno's complaint.
The Secretary held that Eladio Adriano's water rights which had been granted in
1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation canal
collapsed. His non-use of the water right since then for a period of more than five
years extinguished the grant by operation of law, hence the water rights did not
form part of his hereditary estate which his heirs partitioned among themselves.
Valisno, as vendee of the land which Honorata received from her father's estate did
not acquire any water rights with the land purchased.
In his answer to the damage suit (Civil Case No. 3472), the defendant Felipe Adriano
admitted that he levelled the irrigation canal on his land, but he averred: that
neither his late father nor his sister Honorata possessed water rights for the land
which she sold to the appellant; that he (the appellee) applied for water rights for
his land in 1956 and obtained the same in 1958; and that he had a perfect right to
level his land for his own use because he merely allowed his sister to use his water
rights when she still owned the adjacent land. He set up a counterclaim for P3,000
as damages incurred by him in levelling the land on which the appellant dug an

27

irrigation canal, P2,000 as actual damages, P3,000 as attorney's fees, and expenses
of litigation.
In a decision dated April 21, 1966, the trial court held that the plaintiff had no right
to pass through the defendant's land to draw water from the Pampanga River. It
pointed out that under Section 4 of the Irrigation Law, controversies between
persons claiming a right to water from a stream are within the jurisdiction of the
Secretary of Public Works and his decision on the matter is final, unless an appeal is
taken to the proper court within thirty days. The court may not pass upon the
validity of the decision of the Public Works Secretary collaterally. Furthermore, there
was nothing in the plaintiff 's evidence to show that the resolution was not valid. It
dismissed the complaint and counterclaim.
The plaintiff's motion for reconsideration of the decision was denied by the trial
court. The plaintiff appealed to the Court of Appeals which certified the case to Us
upon the legal question of whether the provisions of the Irrigation Act (Act No.
2152) or those of the Civil Code should apply to this case.
The plaintiff-appellant argues that while the trial court correctly held that the
Secretary of Public Works may legally decide who between the parties is entitled to
apply for water rights under the Irrigation Act, it erred in ruling that the Secretary
has authority to hear and decide the plaintiff 's claim for damages for the
defendant's violation of his (plaintiff's) right to continue to enjoy the easement of
aqueduct or water through the defendant's land under Articles 642, 643, and 646 of
the Civil Code, which provide:
Article 642. Any person who may wish to use upon his own estate any
water of which he can dispose shall have the right to make it flow
through the intervening estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates upon which the
waters may filter or descend.
Article 643. One desiring to make use of the right granted inthe
preceding article is obliged:
(1) To prove that he can dispose of the water and that it is sufficient for
the use for which it is intended;
(2) To show that the proposed right of way is the most convenient and
the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations.

28

Article 646. For legal purposes, the easement of aqueduct shall be


considered as continuous and apparent, even though the flow of the
water may not be continuous, or its use depends upon the needs of the
dominant estate, or upon a schedule of alternate days or hours.
The existence of the irrigation canal on defendant's land for the passage of water
from the Pampanga River to Honorata's land prior to and at the time of the sale of
Honorata's land to the plaintiff was equivalent to a title for the vendee of the land to
continue using it as provided in Article 624 of the Civil Code:
Article 624. The existence of an apparent sign of easement between two
estates, established or maintained by the owner of both shall be
considered, should either of them be alienated, as a title in order that he
easement may continue actively and passively, unless at the time,
theownership of the two estates is divided, the contrary should be
provided in the title of conveyance of either of them, or the sign
aforesaid should be removed before the execution of the deed.
This provision shall also apply in case of the division of a thing owned in common on
by two or more persons (Civil Code)
This provision was lifted from Article 122 of the Spanish Law of Waters
which provided:
Article 122. Whenever a tract of irrigated land which previously received
its waters from a single point is divided through inheritance, sale or by
virtue of some other title, between two or more owners, the owners of
the higher estates are under obligation to give free passage to the water
as an easement of conduit for the irrigation of the lower estates, and
without right to any compensation therefore unless otherwise stipulated
in the deed of conveyance. (Art. 122, Spanish Law of Waters of August 3,
1866.)
No enlightened concept of ownership can shut out the Idea of restrictions thereon,
such as easements. Absolute and unlimited dominion is unthinkable, inasmuch as
the proper enjoyment of property requires mutual service and forbearance among
adjoining estates (Amor vs. Florentino, 74 Phil. 403).
As indicated in the decision dated March 22, 1960 of the Bureau of Works "the
principal issue involved in this case falls under the subject of servitude of waters
which are governed by Article 648 of the new Civil Code and the suppletory laws
mentioned in the cases of Lunod vs. Meneses 11 Phil. 128) and Osmena vs. Camara
(C.A. 380 62773) which are the irrigation law and the Spanish Law of Waters of
August 3, 1866, specifically Article 122 thereof.

29

The deed of sale in favor of Valisno included the "conveyance and transfer of the
water rights and improvements" appurtenant to Honorata Adriano's property. By the
terms of the Deed of Absolute Sale, the vendor Honorata Adriano Francisco sold,
ceded, conveyed and transferred to Dr. Nicolas Valisno all "rights, title, interest and
participations over the parcel of land above- described, together with one Berkely
Model 6 YRF Centrifugal Pump G" suction, 6" discharge 500-1500 GPM, with Serial
No. 5415812 and one (1) set of suction pipe and discharge of pipe with elbow,
nipples, flanges and footvalves," and the water rights and such other improvements
appertaining to the property subject of this sale. According to the appellant, the
water right was the primary consideration for his purchase of Honorata's property,
for without it the property would be unproductive.
Water rights, such as the right to use a drainage ditch for irrigation purposes, which
are appurtenant to a parcel of land, pass with the conveyance of the land, although
not specifically mentioned in the conveyance. The purchaser's easement of
necessity in a water ditch running across the grantor's land cannot be defeated
even if the water is supplied by a third person (Watson vs. French, 112 Me 371 19
C.J. 868-897). The fact that an easement by grant may also have qualified as an
easement of necessity does detract from its permanency as property right, which
survives the determination of the necessity (Benedicto vs. CA, 25 SCRA 145).<re||
an1w>
As an easement of waters in favor of the appellant has been established, he is
entitled to enjoy it free from obstruction, disturbance or wrongful interference (19 CJ
984), such as the appellee's act of levelling the irrigation canal to deprive him of the
use of water from the Pampanga River.
WHEREFORE, the appealed decision is set aside, and a new one is entered ordering
the appellee to grant the appellant continued and unimpeded use of the irrigation
ditch traversing his land in order to obtain water from the Pampanga River to
irrigate appellant's land. Let the records of this case be remanded to the court a
quo for the reception of evidence on the appellant's claim for damages.
SO ORDERED.
G.R. No. 95252 September 5, 1997
LA VISTA ASSOCIATION, INC., petitioner,
vs.
COURT OF APPEALS, SOLID HOMES, INC., ATENEO DE MANILA UNIVERSITY,
ROMULO VILLA, LORENZO TIMBOL, EMDEN ENCARNACION, VICENTE
CASIO, JR., DOMINGO REYES, PEDRO C. MERCADO, MARIO AQUINO,
RAFAEL GOSECO, PORFIRIO CABALU, JR., and ANTONIO ADRIANO, in their

30

behalf and in behalf of the residents of LOYOLA GRAND VILLAS, INC.,


PHASES I AND II, respondents.
MANGYAN ROAD is a 15-meter wide thoroughfare in Quezon City abutting Katipunan
Avenue on the west, traversing the edges of La Vista Subdivision on the north and
of the Ateneo de Manila University and Maryknoll (now Miriam) College on the
south. Mangyan Road serves as the boundary between LA VISTA on one side and
ATENEO and MARYKNOLL on the other. It bends towards the east and ends at the
gate of Loyola Grand Villas Subdivision. The road has been the subject of an endless
dispute, the disagreements always stemming from this unresolved issue: Is there an
easement of right-of-way over Mangyan Road?
In resolving this controversy, the Court would wish to write finis to this seemingly
interminable debate which has dragged on for more than twenty years.
The area comprising the 15-meter wide roadway was originally part of a vast tract
of land owned by the Tuasons in Quezon City and Marikina. On 1 July 1949 the
Tuasons sold to Philippine Building Corporation a portion of their landholdings
amounting to 1,330,556 square meters by virtue of a Deed of Sale with Mortgage.
Paragraph three (3) of the deed provides that ". . . the boundary line between the
property herein sold and the adjoining property of the VENDORS shall be a road
fifteen (15) meters wide, one-half of which shall be taken from the property herein
sold to the VENDEE and the other half from the portion adjoining belonging to the
VENDORS."
On 7 December 1951 the Philippine Building Corporation, which was then acting for
and in behalf of Ateneo de Manila University (ATENEO) in buying the properties from
the Tuasons, sold, assigned and formally transferred in a Deed of Assignment with
Assumption of Mortgage, with the consent of the Tuasons, the subject parcel of land
to ATENEO which assumed the mortgage. The deed of assignment states
The ASSIGNEE hereby agrees and assumes to pay the mortgage
obligation on the above-described land in favor of the MORTGAGOR and
to perform any and all terms and conditions as set forth in the Deed of
Sale with Mortgage dated July 1, 1949, hereinabove referred to, which
said document is incorporated herein and made an integral part of this
contract by reference . . . .
On their part, the Tuasons developed a part of the estate adjoining the portion sold
to Philippine Building Corporation into a residential village known as La Vista
Subdivision. Thus the boundary between LA VISTA and the portion sold to Philippine
Building Corporation was the 15-meter wide roadway known as the Mangyan Road.
On 6 June 1952 ATENEO sold to MARYKNOLL the western portion of the land
adjacent to Mangyan Road. MARYKNOLL then constructed a wall in the middle of the

31

15-meter wide roadway making one-half of Mangyan Road part of its school
campus. The Tuasons objected and later filed a complaint before the then Court of
First Instance of Rizal for the demolition of the wall. Subsequently, in an amicable
settlement, MARYKNOLL agreed to remove the wall and restore Mangyan Road to its
original width of 15 meters.
Meanwhile, the Tuasons developed its 7.5-meter share of the 15-meter wide
boundary. ATENEO deferred improvement on its share and erected instead an adobe
wall on the entire length of the boundary of its property parallel to the 15-meter
wide roadway.
On 30 January 1976 ATENEO informed LA VISTA of the former's intention to develop
some 16 hectares of its property along Mangyan Road into a subdivision. In
response, LA VISTA President Manuel J. Gonzales clarified certain aspects with
regard to the use of Mangyan Road. Thus
. . . The Mangyan Road is a road fifteen meters wide, one-half of which is
taken from your property and the other half from the La Vista
Subdivision. So that the easement of a right-of-way on your 71/2 m.
portion was created in our favor and likewise an easement of right-ofway was created on our 7 1/2 portion of the road in your favor
(paragraph 3 of the Deed of Sale between the Tuasons and the Philippine
Building Corporation and Ateneo de Manila dated 1 July 1949 . . . .
On 28 April 1976 LA VISTA President Manuel J. Gonzales, in a letter to ATENEO
President Fr. Jose A. Cruz, S. J., offered to buy under specified conditions the
property ATENEO was intending to develop. One of the conditions stipulated by the
LA VISTA President was that "[i]t is the essence of the offer that the mutuaI right of
way between the Ateneo de Manila University and La Vista Homeowners'
Association will be extinguished." The offer of LA VISTA to buy was not accepted by
ATENEO. Instead, on 10 May 1976 ATENEO offered to sell the property to the public
subject to the condition that the right to use the 15-meter roadway will be
transferred to the vendee who will negotiate with the legally involved parties
regarding the use of such right as well as the development costs for improving the
access road.
LA VISTA became one of the bidders. However it lost to Solid Homes, Inc., in the
bidding. Thus on 29 October 1976 ATENEO executed a Deed of Sale in favor of Solid
Homes, Inc., over parcels of land covering a total area of 124,424 square meters
subject, among others, to the condition that
7. The VENDOR hereby passes unto the VENDEE, its assigns and
successors-in-interest the privileges of such right of way which the
VENDOR acquired, and still has, by virtue of the Deeds mentioned in the

32

immediately preceeding paragraph hereof; provided, that the VENDOR


shall nonetheless continue to enjoy said right of way privileges with the
VENDEE, which right of way in favor of the VENDOR shall be annotated
on the pertinent road lot titles. However it is hereby agreed that the
implementation of such right of way shall be for the VENDEE's sole
responsibility and liability, and likewise any development of such right of
way shall be for the full account of the VENDEE. In the future, if needed,
the VENDOR is therefore free to make use of the aforesaid right of way,
and/or Mangyan Road access, but in such a case the VENDOR shall
contribute a pro-rata share in the maintenance of the area.
Subsequently, Solid Homes, Inc., developed a subdivision now known as Loyola
Grand Villas and together they now claim to have an easement of right-of-way along
Mangyan Road through which they could have access to Katipunan Avenue.
LA VISTA President Manuel J. Gonzales however informed Solid Homes, Inc., that LA
VISTA could not recognize the right-of-way over Mangyan Road because, first,
Philippine Building Corporation and its assignee ATENEO never complied with their
obligation of providing the Tuasons with a right-of-way on their 7.5-meter portion of
the road and, second, since the property was purchased for commercial purposes,
Solid Homes, Inc., was no longer entitled to the right-of-way as Mangyan Road was
established exclusively for ATENEO in whose favor the right-of-way was originally
constituted. LA VISTA, after instructing its security guards to prohibit agents and
assignees of Solid Homes, Inc., from traversing Mangyan Road, then constructed
one-meter high cylindrical concrete posts chained together at the middle of and
along the entire length of Mangyan Road thus preventing the residents of LOYOLA
from passing through.
Solid Homes, Inc., complained to LA VISTA but the concrete posts were not
removed. To gain access to LOYOLA through Mangyan Road an opening through the
adobe wall of ATENEO was made and some six (6) cylindrical concrete posts of LA
VISTA were destroyed. LA VISTA then stationed security guards in the area to
prevent entry to LOYOLA through Mangyan Road.
On 17 December 1976, to avert violence, Solid Homes, Inc., instituted the instant
case, docketed as Civil Case No. Q-22450, before the then Court of First Instance of
Rizal and prayed that LA VISTA been joined from preventing and obstructing the use
and passage of LOYOLA residents through Mangyan Road. LA VISTA in turn filed a
third-party complaint against ATENEO. On 14 September 1983 the trial court issued
a preliminary injunction in favor of Solid Homes, Inc. (affirming an earlier order of 22
November 1977), directing LA VISTA to desist from blocking and preventing the use
of Mangyan Road. The injunction order of 14 September 1983 was however nullified
and set aside on 31 May 1985 by the then Intermediate Appellate Court 1 in AC-G.R.
SP No. 02534. Thus in a petition for review on certiorari, docketed as G.R. No.

33

71150, Solid Homes, Inc., assailed the nullification and setting aside of the
preliminary injunction issued by the trial court.
Meanwhile, on 20 November 1987 the Regional Trial Court of Quezon City rendered
a decision on the merits 2 in Civil Case No. Q-22450 affirming and recognizing the
easement of right-of-way along Mangyan Road in favor of Solid Homes, Inc., and
ordering LA VISTA to pay damages thus
ACCORDINGLY, judgment is hereby rendered declaring that an easement
of a right-of-way exists in favor of the plaintiff over Mangyan Road, and,
consequently, the injunction prayed for by the plaintiff is granted,
enjoining thereby the defendant, its successors-in-interest, its/their
agents and all persons acting for and on its/their behalf, from closing,
obstructing, preventing or otherwise refusing to the plaintiff, its
successors-in-interest, its/their agents and all persons acting for and on
its/their behalf, and to the public in general, the unobstructed ingress
and egress on Mangyan Road, which is the boundary road between the
La Vista Subdivision on one hand, and the Ateneo de Manila University,
Quezon City, and the Loyola Grand Villas Subdivision, Marikina, Metro
Manila, on the other; and, in addition the defendant is ordered to pay the
plaintiff reasonable attorney's fees in the amount of P30,000.00. The
defendant-third-party plaintiff is also ordered to pay the third-party
defendant reasonable attorney's fees for another amount of P15,000.00.
The counter-claim of defendant against the plaintiff is dismissed for lack
of merit. With costs against the defendant.
Quite expectedly, LA VISTA appealed to the Court of Appeals, docketed as CA-G.R.
CV No. 19929. On 20 April 1988 this Court, taking into consideration the 20
November 1987 Decision of the trial court, dismissed the petition docketed as G.R.
No. 71150 wherein Solid Homes, Inc., sought reversal of the 31 May 1985 Decision
in AC-G.R. SP No. 02534 which nullified and
set aside the 14 September 1983 injunction order of the trial court. There we said
Considering that preliminary injunction is a provisional remedy which
may be granted at any time after the commencement of the action and
before judgment when it is established that the plaintiff is entitled to the
relief demanded and only when his complaint shows facts entitling such
reliefs (Section 3(a), Rule 58) and it appearing that the trial court had
already granted the issuance of a final injunction in favor of petitioner in
its decision rendered after trial on the merits (Sections 7 & 10, Rule 58,
Rules of Court), the Court resolved to Dismiss the instant petition having
been rendered moot and academic. An injunction issued by the trial
court after it has already made a clear pronouncement as to the
plaintiff's right thereto, that is, after the same issue has been decided on

34

the merits, the trial court having appreciated the evidence presented, is
proper, notwithstanding the fact that the decision rendered is not yet
final (II Moran, pp. 81-82, 1980 ed.). Being an ancillary remedy, the
proceedings for preliminary injunction cannot stand separately or
proceed independently of the decision rendered on the merit of the main
case for injunction. The merit of the main case having been already
determined in favor of the applicant, the preliminary determination of its
non-existence ceases to have any force and effect. 3
On the other hand, in CA-G.R. CV No. 19929, several incidents were presented for
resolution: two (2) motions filed by Solid Homes, Inc., to cite certain officers of LA
VISTA for contempt for alleged violation of the injunction ordaining free access to
and egress from Mangyan Road, to which LA VISTA responded with its own motion
to cite Solid Homes, Inc., for contempt; a motion for leave to intervene and to reopen Mangyan Road filed by residents of LOYOLA; and, a petition praying for the
issuance of a restraining order to enjoin the closing of Mangyan Road. On 21
September 1989 the incidents were resolved by the Court of Appeals 4 thus
1. Defendant-appellant La Vista Association, Inc., its Board of Directors
and other officials and all persons acting under their orders and in their
behalf are ordered to allow all residents of Phase I and II of Loyola Grand
Villas unobstructed right-of-way or passage through the Mangyan Road
which is the boundary between the La Vista Subdivision and the Loyola
Grand Villas Subdivision;
2. The motion to intervene as plaintiffs filed by the residents of Loyola
Grand Villas Subdivision is GRANTED; and
3. The motions for contempt filed by both plaintiff-appellee and
defendant-appellant are DENIED.
This resolution is immediately executory. 5
On 15 December 1989 both motions for reconsideration of Solid Homes, Inc., and LA
VISTA were denied. In separate petitions, both elevated the 21 September 1989 and
15 December 1989 Resolutions of the Court of Appeals to this Court. The petition of
Solid Homes, Inc., docketed as G.R. No. 91433, prayed for an order directing the
appellate court to take cognizance of and hear the motions for contempt, while that
of LA VISTA in G.R. No. 91502 sought the issuance of a preliminary injunction to
order Solid Homes, Inc., ATENEO and LOYOLA residents to desist from intruding into
Mangyan Road.
On 22 May 1990, pending resolution of G.R. Nos. 91433 and 91502, the Second
Division of the Court of Appeals6 in CA-G.R. CV No. 19929 affirmed in toto the
Decision of the trial court in Civil Case No. Q-22450. On 6 September 1990 the

35

motions for reconsideration and/or re-raffle and to set the case for oral argument
were denied. In view of the affirmance of the Decision by the Court of Appeals in
CA-G.R. CV No. 19929 this Court dismissed the petition in G.R. No. 91502 for being
moot as its main concern was merely the validity of a provisional or preliminary
injunction earlier issued. We also denied the petition in G.R. No. 91433 in the
absence of a discernible grave abuse of discretion in the ruling of the appellate
court that it could not entertain the motions to cite the parties for contempt
"because a charge of contempt committed against a superior court may be filed
only before the court against whom the contempt has been committed" (Sec. 4,
Rule 71, Rules of Court). 7
Consequently we are left with the instant case where petitioner LA VISTA assails the
Decision of respondent Court of Appeals affirming in toto the Decision of the trial
court which rendered a judgment on the merits and recognized an easement of
right-of-way along Mangyan Road, permanently enjoining LA VISTA from closing to
Solid Homes, Inc., and its successors-in-interest the ingress and egress on Mangyan
Road.
In its first assigned error, petitioner LA VISTA argues that respondent appellate court
erred in disregarding the decisions in (a) La Vista
Association, Inc., v. Hon. Ortiz, 8 affirmed by this Court in Tecson v. Court of
Appeals; 9 (b) La Vista Association, Inc., v. Hon. Leviste, 10 affirmed by this Court
in Rivera v. Hon. Intermediate Appellate Court; 11 and, (c)La Vista
v. Hon. Mendoza, 12 and in holding that an easement of right-of-way over Mangyan
Road exists. 13
We do not agree with petitioner. The reliance of petitioner on the cited cases is out
of place as they involve the issuance of a preliminary injunction pending resolution
of a case on the merits. In the instant case, however, the subject of inquiry is not
merely the issuance of a preliminary injunction but the final injunctive writ which
was issued after trial on the merits. A writ of preliminary injunction is generally
based solely on initial and incomplete evidence. The opinion and findings of fact of
a court when issuing a writ of preliminary injunction are interlocutory in nature and
made even before the trial on the merits is terminated. Consequently there may be
vital facts subsequently presented during the trial which were not obtaining when
the writ of preliminary injunction was issued. Hence, to equate the basis for the
issuance of a preliminary injunction with that for the issuance of a final injunctive
writ is erroneous. And it does not necessarily mean that when a writ of preliminary
injunction issues a final injunction follows. Accordingly, respondent Court of Appeals
in its assailed Decision rightly held that
We are unswayed by appellant's theory that the cases cited by them in
their Brief (pagers 17 and 32) and in their motion for early resolution
(page 11, Rollo) to buttress the first assigned error, are final judgments

36

on the merits of, and therefore res judicata to the instant query. It is
quite strange that appellant was extremely cautious in not mentioning
this doctrine but the vague disquisition nevertheless points to this same
tenet, which upon closer examination negates the very proposition.
Generally, it is axiomatic that res judicata will attach in favor of La Vista
if and when the case under review was disposed of on the merits and
with Finality (Manila Electric Co., vs. Artiaga. 50 Phil. 144; 147; S. Diego
vs. Carmona, 70 Phil. 281; 283; cited in Comments on the Rules of Court,
by Moran. Volume II, 1970 edition, page 365; Roman Catholic Archbishop
vs. Director of Lands. 35 Phil. 339; 350-351, cited in Remedial Law
Compendium, by Regalado, Volume I, 1986 Fourth revised Edition, page
40). Appellants suffer from the mistaken notion that the "merits" of
the certiorari petitions impugning the preliminary injunction in the cases
cited by it are tantamount to the merits of the main case, subject of the
instant appeal. Quite the contrary, the so-called "final judgments"
adverted to dealt only with the propriety of the issuance or non-issuance
of the writ of preliminary injunction, unlike the present recourse which is
directed against a final injunctive writ under Section 10, Rule 58. Thus
the invocation of the disputed matter herein is misplaced. 14
We thus repeat what we said in Solid Homes, Inc., v. La Vista
Court of Appeals quoted in its assailed Decision 16

15

which respondent

Being an ancillary remedy, the proceedings for preliminary injunction


cannot stand separately or proceed independently of the decision
rendered on the merits of the main case for injunction. The merits of the
main case having been already determined in favor of the applicant, the
preliminary determination of its non-existence ceases to have any force
and effect.
Petitioner LA VISTA in its lengthy Memorandum also quotes our ruling
in Ramos, Sr., v. Gatchalian Realty, Inc., 17no less than five (5) times 18
To allow the petitioner access to Sucat Road through Gatchalian Avenue
inspite of a road right-of-way provided by the petitioner's subdivision for
its buyers simply because Gatchalian Avenue allows petitioner a much
greater ease in going to and coming from the main thoroughfare is to
completely ignore what jurisprudence has consistently maintained
through the years regarding an easement of a right-of-way, that "mere
convenience for the dominant estate is not enough to serve as its basis.
To justify the imposition of this servitude, there must be a real, not a
fictitious or artificial, necessity for it" (See Tolentino, Civil Code of the
Philippines, Vol. II, 2nd ed., 1972, p. 371)

37

Again this is misplaced. Ramos, Sr., v. Gatchalian Realty, Inc.,


legal or compulsory easement of right-of-way

19

concerns a

Since there is no agreement between the contending parties in this case


granting a right-of-way by one in favor of the other, the establishment of
a voluntary easement between the petitioner and the respondent
company and/or the other private respondents is ruled out. What is left
to examine is whether or not petitioner is entitled to a legal or
compulsory easement of a right-of-way
which should be distinguished from a voluntary easement. A legal or
compulsory easement is that which is constituted by law for public use or for
private interest. By express provisions of Arts. 649 and 650 of the New Civil
Code, the owner of an estate may claim a legal or compulsory right-of-way
only after he has established the existence of four (4) requisites, namely, (a)
the estate is surrounded by other immovables and is without adequate outlet
to a public highway; (b) after payment of the proper indemnity; (c) the
isolation was not due to the proprietor's own acts; and, (d) the right-of-way
claimed is at a point least prejudicial to the servient estate, and insofar as
consistent with this rule, where the distance from the dominant estate to a
public highway may be the shortest. 20 A voluntary easement on the other
hand is constituted simply by will or agreement of the parties.
From the facts of the instant case it is very apparent that the parties and their
respective predecessors-in-interest intended to establish an easement of right-ofway over Mangyan Road for their mutual benefit, both as dominant and servient
estates. This is quite evident when: (a) the Tuasons and the Philippine Building
Corporation in 1949 stipulated in par. 3 of their Deed of Sale with Mortgage that the
"boundary line between the property herein sold and the adjoining property of the
VENDORS shall be a road fifteen (15) meters wide, one-half of which shall be taken
from the property herein sold to the VENDEE and the other half from the portion
adjoining belonging to the vendors;" (b) the Tuasons in 1951 expressly agreed and
consented to the assignment of the land to, and the assumption of all the rights and
obligations by ATENEO, including the obligation to contribute seven and one-half
meters of the property sold to form part of the 15-meter wide roadway; (c) the
Tuasons in 1958 filed a complaint against MARYKNOLL and ATENEO for breach of
contract and the enforcement of the reciprocal easement on Mangyan Road, and
demanded that MARYKNOLL set back its wall to restore Mangyan Road to its original
width of 15 meters, after MARYKNOLL constructed a wall in the middle of the 15meter wide roadway; (d) LA VISTA President Manuel J. Gonzales admitted and
clarified in 1976, in a letter to ATENEO President Fr. Jose A. Cruz, S.J., that "Mangyan
Road is a road fifteen meters wide, one-half of which is taken from your property
and the other half from the La Vista Subdivision. So that the easement of a right-ofway on your 7 1/2 m. portion was created in our favor and likewise an easement of

38

right-of-way was created on our 7 1/2 m. portion of the road in your favor;" (e) LA
VISTA, in its offer to buy the hillside portion of the ATENEO property in 1976,
acknowledged the existence of the contractual right-of-way as it manifested that
the mutual right-of-way between the Ateneo de Manila University and La Vista
Homeowners' Association would be extinguished if it bought the adjacent ATENEO
property and would thus become the owner of both the dominant and servient
estates; and, (f) LA VISTA President Luis G. Quimson, in a letter addressed to the
Chief Justice, received by this Court on 26 March 1997, acknowledged that "one-half
of the whole length of (Mangyan Road) belongs to La Vista Assn., Inc. The other half
is owned by Miriam (Maryknoll) and the Ateneo in equal portions;"
These certainly are indubitable proofs that the parties concerned had indeed
constituted a voluntary easement of right-of-way over Mangyan Road and, like any
other contract, the same could be extinguished only by mutual agreement or by
renunciation of the owner of the dominant estate. Thus respondent Court of Appeals
did not commit a reversible error when it ruled
that
Concerning the pivotal question posed herein on the existence of an
easement, we are of the belief, and thus hereby hold that a right-of-way
was properly appreciated along the entire route of Mangyan Road.
Incidentally, the pretense that the court a quo erred in holding that
Mangyan Road is the boundary road between La Vista and Ateneo (page
31, Appellant's Brief) does not raise any critical eyebrow since the same
is wholly irrelevant to the existence of a servitude thereon from their
express admission to the contrary (paragraph 1, Answer).
One's attention should rather be focused on the contractual stipulations
in the deed of sale between the Tuason Family and the Philippine
Building Corporation (paragraph 3, thereof) which were incorporated in
the deed of assignment with assumption of mortgage by the Philippine
Building Corporation in favor of Ateneo (first paragraph, page 4 of the
deed) as well as in the deed of sale dated October 24, 1976 when the
property was ultimately transferred by Ateneo to plaintiff-appellee. Like
any other contractual stipulation, the same cannot be extinguished
except by voluntary rescission of the contract establishing the servitude
or renunciation by the owner of the dominant lots (Chuanico vs. Ibaez,
7 CA Reports, 2nd Series, 1965 edition, pages 582; 589, cited in Civil Law
Annotated, by Padilla, Volume II, 1972 Edition, pages 602-603), more so
when the easement was implicitly recognized by the letters of the La
Vista President to Ateneo dated February 11 and April 28, 1976 (page 22,
Decision; 19 Ruling Case Law 745).

39

The free ingress and egress along Mangyan Road created by the
voluntary agreement between Ateneo and Solid Homes, Inc., is thus
legally demandable (Articles 619 and 625, New Civil Code) with the
corresponding duty on the servient estate not to obstruct the same so
much so that
When the owner of the servient tenement performs acts or
constructs works impairing the use of the servitude, the
owner of the dominant tenement may ask for the destruction
of such works and the restoration of the things to their
condition before the impairment was committed, with
indemnity for damages suffered (3 Sanchez Roman 609). An
injunction may also be obtained in order to restrain the owner
of the servient tenement from obstructing or impairing in any
manner the lawful use of the servitude (Resolme v. Lazo, 27
Phil. 416; 417; 418)." (Commentaries and Jurisprudence on
the Civil Code of the Philippines, by Tolentino, Volume 2, 1963
edition, page 320) 21
Resultantly, when the court says that an easement exists, it is not creating one. For,
even an injunction cannot be used to create one as there is no such thing as a
judicial easement. As in the instant case, the court merely declares the existence of
an easement created by the parties. Respondent court could not have said it any
better
It must be emphasized, however, that We are not constituting an
easement along Mangyan Road, but merely declaring the existence of
one created by the manifest will of the parties herein in recognition of
autonomy of contracts (Articles 1306 and 619, New Civil Code;
Tolentino, supra, page 308; Civil Code of the Philippines, by Paras,
Volume II, 1984 edition, page 549). 22
The argument of petitioner LA VISTA that there are other routes to LOYOLA from
Mangyan Road is likewise meritless, to say the least. The opening of an adequate
outlet to a highway can extinguish only legal or compulsory easements, not
voluntary easements like in the case at bar. The fact that an easement by grant
may have also qualified as an easement of necessity does not detract from its
permanency as a property right, which survives the termination of the necessity. 23
That there is no contract between LA VISTA and Solid Homes, Inc., and thus the
court could not have declared the existence of an easement created by the
manifest will of the parties, is devoid of merit. The predecessors-in-interest of both
LA VISTA and Solid Homes, Inc., i.e., the Tuasons and the Philippine Building
Corporation, respectively, clearly established a contractual easement of right-of-

40

way over Mangyan Road. When the Philippine Building Corporation transferred its
rights and obligations to ATENEO the Tuasons expressly consented and agreed
thereto. Meanwhile, the Tuasons themselves developed their property into what is
now known as LA VISTA. On the other hand, ATENEO sold the hillside portions of its
property to Solid Homes, Inc., including the right over the easement of right-of-way.
In sum, when the easement in this case was established by contract, the parties
unequivocally made provisions for its observance by all who in the future might
succeed them in dominion.
The contractual easement of right-of-way having been confirmed, we find no reason
to delve on the issue concerning P.D. No. 957 which supposedly grants free access
to any subdivision street to government or public offices within the subdivision. In
the instant case, the rights under the law have already been superseded by the
voluntary easement of right-of-way.
Finally, petitioner questions the intervention of some LOYOLA residents at a time
when the case was already on appeal, and submits that intervention is no longer
permissible after trial has been concluded. Suffice it to say that in Director of Lands
v. Court of Appeals, 24 we said
It is quite clear and patent that the motions for intervention filed by the
movants at this stage of the proceedings where trial has already been
concluded, a judgment thereon had been promulgated in favor of private
respondent and on appeal by the losing party . . . the same was affirmed
by the Court of Appeals and the instant petition for certiorari to review
said judgment is already submitted for decision by the Supreme Court,
are obviously and manifestly late, beyond the period prescribed
under . . . Section 2, Rule 12 of the Rules of Court (now Sec. 2, Rule 19,
1997 Rules of Civil Procedure).
But Rule 12 of the Rules of Court, like all other Rules therein
promulgated, is simply a rule of procedure, the whole purpose and object
of which is to make the powers of the Court fully and completely
available for justice. The purpose of procedure is not to thwart justice. Its
proper aim is to facilitate the application of justice to the rival claims of
contending parties. It was created not to hinder and delay but to
facilitate and promote the administration of justice. It does not constitute
the thing itself which courts are always striving to secure to litigants. It is
designed as the means best adopted to obtain that thing. In other words,
it is a means to an end.
The denial of the motions for intervention arising from the strict
application of the Rule due to alleged lack of notice to, or the alleged
failure of, movants to act seasonably will lead the Court to commit an act

41

of injustice to the movants, to their successors-in-interest and to all


purchasers for value and in good faith and thereby open the door to
fraud, falsehood and misrepresentation, should intervenors' claims be
proven to be true.
After all, the intervention does not appear to have been filed to delay the
proceedings. On the contrary, it seems to have expedited the resolution of the case
as the incidents brought forth by the intervention, which could have been raised in
another case, were resolved together with the issues herein resulting in a more
thorough disposal of this case.
WHEREFORE, the Decision of respondent Court of Appeals dated 22 May 1990 and
its Resolution dated 6 September 1990, which affirmed the Decision of the RTC-Br.
89, Quezon City, dated 20 November 1987, are AFFIRMED.
SO ORDERED.
G.R. No. L-14116

June 30, 1960

LAUREANA A. CID, petitioner,


vs.
IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P. JAVIER, FERNANDO P.
JAVIER, JOSE P. JAVIER, GUILLERMO P. JAVIER, ISIDORA P. JAVIER, BENJAMIN
P. JAVIER, and LEONOR CRISOLOGO,respondents.
The legal issue presented in this petition to review by certiorari a decision of the
Court of appeals, is whether the respondents Irene P. Javier, et al., owners of a
building standing on their lot with windows overlooking the adjacent lot, had
acquired by prescription an enforceable easement of light and view arising from a
verbal prohibition to obstruct such view and light, alleged to have been made upon
petitioner's
predecessor-in-interest as owner of the adjoining lot, both of which lots being
covered by Torrens titles. Both the trial court and the Court of Appeals are of the
view and so declared that respondents Javier et al., did acquire such easement and
gave judgment accordingly. Hence, petitioner has come to us seeking review,
alleging that both courts are in error.
The windows in question are admittedly in respondents' own building erected on
their own lot. The easement, if there is any, is therefore a negative one. 1 The
alleged prohibition having been avowedly made in 1913 or 1914, before the present
Civil Code took effect, the applicable legal provision is Article 538 of the Spanish
Civil Code which provides:
Art. 538. In order to acquire by prescription the easements referred to in the
next preceding article, the time of the possession shall be computed, ... in
negative easements, from the day on which the owner of the dominant estate
has, by a formal act, forbidden the owner of the servient estate to perform any
act which would be lawful without the easement. (Emphasis supplied.)

42

As may be seen, the only question hinges on the interpretation of the phrase "a
formal act". The lower court and the Court of Appeals considered any prohibition
made by the owner of the dominant estate, be it oral or written, sufficient
compliance with the law. The Court of Appeals declared:
In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26 and the
decisions of the Supreme Court of Spain therein cited), we agree with the trial
court that the "formal act" of prohibition contemplated by Art. 538 of the old
Civil Code may be either a written or verbal act. The decisions of the Supreme
Court of Spain above-quoted do not at all mention written but merely some
act of prohibition. . . . .
We are inclined to take the contrary view. The law is explicit. It requires
not any form of prohibition, but exacts, in a parenthetical expression, for emphasis,
the doing not only of a specific, particular act, but a formal act. The following
definitions are pertinent:
Formalor pertaining to form, characterized by one due form or order, done in
due form with a solemnity regular; relating to matters of form. (C. J. S. vol. 37,
p. 115.)
ActIn civil law, a writing which states in legal form that a thing has been
done, said or agreed. (1 Bouvier's Law Dictionary, p. 150, citing Marlin Report.)
From these definitions, it would appear that the phrase "formal act" would require
not merely any writing, but one executed in due form and/or with solemnity. That
this is the intendment of the law although not expressed in exact language is the
reason for the clarification2 made in Article 621 of the new Civil Code which
specifically requires the prohibition to be in "an instrument acknowledged before a
notary public". This is as it should be. Easements are in the nature of an
encumbrance on the servient estate. They constitute a limitation of the dominical
right of the owner of the subjected property. Hence, they can be acquired only by
title and by prescription, in the case of positive easement, only as a result of some
sort of invasion, apparent and continuous, of the servient estate. By the same
token, negative easements can not be acquired by less formal means. Hence, the
requirement that the prohibition (the equivalent of the act of invasion) should be by
"a formal act", "an instrument acknowledged before a notary public."
The Court of Appeals found as undisputed the fact 'that plaintiffs' lot (dominant) as
well as defendant's lot (servient) are covered by Original Certificates of Title Nos.
7225 and 7545, respectively", both issued by the Register of Deeds of Ilocos Norte,
in pursuance of the decrees of registration issued on December 27, 1937, in
Cadastral Case No. 51, G.L.R.O. Cadastral Record No. 1212 of Laoag, Ilocos Norte.
Certified copies of these certificates of title are found as Annexes "A" and "B", pages
77 to 80 inclusive of the Record on Appeal. In both of them, it does not appear any
annotation in respect to the easement supposedly acquired by prescription which,
counting the twenty (20) years from 1913 or 1914, would have already ripened by
1937, date of the decrees of registration. Consequently, even
conceding arguendo that such an easement has been acquired, it had been cut off
or extinguished by the registration of the servient estate under the Torrens System

43

without the easement being annotated on the corresponding certificate of title,


pursuant to Section 39 of the Land Registration Act.3
Wherefore, the decision of the Court of Appeals appealed from is hereby reversed;
the injunction issued herein dissolved; and the case remanded to the court of origin
for adjudication of the damages, if any, occasioned by the issuance of the
injunction. Without pronouncement as to costs. So ordered.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.
B. L., and Gutierrez David, JJ., concur.

RESOLUTION

January 20, 1961

BARRERA, J.:
The Decision in this case, promulgated on June 30, 1960, provided, among others,
for the lifting of the preliminary injunction issued by the lower court directed against
petitioner's construction of a building allegedly being made in violation of Municipal
Ordinance No. 3, series of 1909 of the municipality of Laoag, and in disregard of
respondents' right to light and view.
In their motion for reconsideration timely presented, respondents claim that the
findings of the lower court, affirmed by the Court of Appeals, that the building under
construction violated the aforementioned ordinance (from which no appeal was
interposed) having become final, justify the issuance of and making permanent the
injunction already issued.
There is no question that respondents' house, as well as that of petitioner, are
within their respective properties; that respondents' wall stands only 50 centimeters
from the boundary of the 2 lots, whereas, the wall of the petitioner's building was
constructed 1 meter from the boundary or 1 meter and 50 centimeters from the
wall of the house of respondents. As a result, the lower court found that the eaves
of the two houses overlap each other by 24 centimeters. This, the Court of Appeals
declared to be violative of Ordinance No. 3, series of 1903, amending Sections 1, 5,
6, and 13 of the Municipal Ordinance of June 3, 1903, which requires a distance of 2
meters, measured from eaves to eaves of adjoining buildings of strong materials.
It must be noted, however, that the Ordinance in question was adopted since 1909
and was, therefore, already in force at the time the house of respondents was
reconstructed in 1946 after the building originally erected thereon was burned in
1942. If respondents constructed their house at least one meter from the boundary
line, as petitioner has constructed hers, there would be no overlapping of the eaves
and there would not be any violation of the ordinance. As things now stand, in view

44

of such construction by the respondents, the overlapping of the eaves and the
consequential violation of the ordinance can not entirely be attributed to petitioner,
as to require her alone to make the adjustments necessary for the observance of
the 2-meter eaves-to-eaves distance from her neighbors. If any compliance with the
ordinance would be made not only by petitioner, but also by the respondents. There
is, therefore, no reason for the continuation of the injunction.
In view of the foregoing, and as the other grounds respondents' motion for
reconsideration had been already duly considered in the Decision, the said motion is
hereby denied, for lack of merit. So ordered.
G.R. No. L-14652

June 30, 1960

JUAN GARGANTOS, petitioner,


vs.
TAN YANON and THE COURT OF APPEALS, respondents.
Juan Gargantos appeals by certiorari from the decision of the Court of Appeals
reversing the judgment of the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a parcel
of land containing 888 square meters, with the buildings and improvements
thereon, situated in the poblacion of Romblon. He subdivided the lot into three and
then sold each portion to different persons. One portion was purchased by
Guillermo Tengtio who subsequently sold it to Vicente Uy Veza. Another portion,
with the house of strong materials thereon, was sold in 1927 to Tan Yanon,
respondent herein. This house has on its northeastern side, doors and windows
over-looking the third portion, which, together with the camarin and small building
thereon, after passing through several hands, was finally acquired by Juan
Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to
demolish the roofing of the oldcamarin. The permit having been granted, Gargantos
tore down the roof of the camarin. On May 11, 1955, Gargantos asked the Municipal
Council of Romblon for another permit, this time in order to construct a combined
residential house and warehouse on his lot. Tan Yanon opposed approval of this
application.
Because both the provincial fiscal and district engineer of Romblon recommended
granting of the building permit to Gargantos, Tan Yanon filed against Gargantos an
action to restrain him from constructing a building that would prevent plaintiff from
receiving light and enjoying the view trough the window of his house, unless such
building is erected at a distance of not less than three meters from the boundary
line between the lots of plaintiff and defendant, and to enjoin the members of
Municipal Council of Romblon from issuing the corresponding building permit to
defendant. The case as against the members of the Municipal Council was

45

subsequently dismissed with concurrence of plaintiff's council. After trial, the Court
of First Instance of Romblon rendered judgment dismissing the complaint and
ordering plaintiff to pay defendant the sum of P12,500.00 by way of compensatory,
exemplary, moral and moderate damages.
On appeal, the Court of Appeals set aside the decision of the Court of First Instance
of Romblon and enjoined defendant from constructing his building unless "he erects
the same at a distance of not less than three meters from the boundary line of his
property, in conformity with Article 673 of the New Civil Code."
So Juan Gargantos filed this petition for review of the appellate Court's decision. The
focal issue herein is whether the property of respondent Tan Yanon has an easement
of light and view against the property of petitioner Gargantos.
The kernel of petitioner's argument is that respondent never acquired any
easement either by title or by prescription. Assuredly, there is no deed establishing
an easement. Likewise, neither petitioner nor his predecessors-in-interest have ever
executed any deed whereby they recognized the existence of the easement, nor
has there been final judgment to that effect. Invoking our decision in Cortes vs. YuTibo (2 Phil., 24), petitioner maintains that respondent has not acquired an
easement by prescription because he has never formally forbidden petitioner from
performing any act which would be lawful without the easement, hence the
prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the
doctrine in the Yu-Tibo case are not applicable herein because the two estates, that
now owned by petitioner, and that owner by respondent, were formerly owned by
just one person, Francisco Sanz. It was Sanz who introduced improvements on both
properties. On that portion presently belonging to respondent, he constructed a
house in such a way that the northeastern side thereof extends to the wall of
the camarin on the portion now belonging to petitioner. On said northeastern side of
the house, there are windows and doors which serve as passages for light and view.
These windows and doors were in existence when respondent purchased the house
and lot from Sanz. The deed sale did not provide that the easement of light and
view would not be established. This then is precisely the case covered by Article
541, O.C.C (now Article 624, N.C.C) which provides that the existence of an
apparent sign of easement between two estates, established by the proprietor of
both, shall be considered, if one of them is alienated, as a title so that the easement
will continue actively and passively, unless at the time the ownership of the two
estate is divided, the contrary is stated in the deed of alienation of either of them,
or the sign is made to disappear before the instrument is executed. The existence of
the doors and windows on the northeastern side of the aforementioned house, is
equivalent to a title, for the visible and permanent sign of an easement is the title
that characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It should be

46

noted, however, that while the law declares that the easement is to "continue" the
easement actually arises for the first time only upon alienation of either estate,
inasmuch as before that time there is no easement to speak of, there being but one
owner of both estates (Articles 530, O.C.C., now Articles 613, N.C.C).
We find that respondent Tan Yanon's property has an easement of light and view
against petitioner's property. By reason of his easement petitioner cannot construct
on his land any building unless he erects it at a distance of not less than three
meters from the boundary line separating the two estates.
Wherefore, the appealed decision is hereby affirmed with costs against petitioner.

G.R. No. L-37409 May 23, 1988


G.R. No. L-22733

September 25, 1968

SALVADOR BENEDICTO (deceased). ROBERTO S. BENEDICTO, petitioner,


vs.
COURT OF APPEALS and VICENTE A. HERAS, respondents.
This case which orginated in the Court of First Instance of Manila was an action by
the respondent Vicente A. Heras to recover a portion of land enclosed and walled by
the petitioner Salvador Benedicto, and to demand the reopening of an easement of
way between his real property and that of the petitioner.
The facts, in the language of the stipulation of the parties, are:
1. The adjoining properties of the plaintiff [Heras] and the defendant
[Benedicto] formerly belonged to one owner, MIRIAM R. HEDRICK, consisting of
Lots Nos. 8, 9, 10, 22, 23, and 24 of Survey Plan RS-219, G. L. R. O. Record No.
662, as surveyed for Henry M. Jones, et al. on June 26, 1912 by C. R. Maris,
Bureau of Lands Surveryor and appproved by the Director of Lands on July 20,
1912, containing an area of 1307.3 sq. mts. covered by TCT No. 3623 of the
Registry of Deeds of the City of Manila, whose technical description as set
forth in said TCT No. 3623 is hereto attached as Annex "A".
2. On Septebmer 29, 1917, the said MIRIAM R. HEDRICK sold a portion of the
above described property, particularly Lots Nos. 8, 9, 22 and 23 to CLARO M.
RECTO, and retained for herself Lots Nos. 10 and 24. A copy of the Escritura
de Compra-Venta in favor of Claro M. Recto is attached hereto and made a
part hereof as Annex "B".

47

3. At the time of the sale, the following buildings were located on the
respective properties of Claro M. Recto and Miriam R. Hedrick as described in
the Escritura de Compra-Venta (annex "B"), to wit:
"SEGUNDO. Que sobre las parcelas 2a (Lote No. 9) y 3a (Lote No. 10) se
hallan levantados dos edificios (Chalets) de igual estructura, extencion
configuracion y volumen, construidos ambos de concreto y otras
materiales fuertes, y sobre las parcelas 5a (Lote No. 23) y 6a (Lote No.
24), las respectivas dependencias de dichos dedificios."
For the purpose of showing the respective locations of said buildings, a
photostatic copy of Sheet No. 2 of the Cadastral Plan of the Manila Cadastral
Survey, Case No. 59, is hereto attached and made part hereof as Annex "C".
This Cadastra lPlan (Annex "C") was made on August 25, 1921 (subsequent to
the sale of the property to Claro M. Recto and subsequent to the issuance of
the separate title TCT No. 7755 to Claro M.Recto, which is mentioned in
paragraph 5 of this Stipulation).
4. The sale to CLARO M. RECTO as evidenced by theEscritura de Compra-Venta
(Annex "B") was subject, among others, to the following conditions:
"SEXTO. Que entre la porcion vendida a Claro M. Recto y la que queda en
poder de Miriam R. Hedrick, hay un paso para vehiculos, de unos tres a cuatro
metros de anchura proximamente constituido por mitad o iguales partes sobre
cada una de dichas porciones, y ambas partes de esta escritura se obligan
cada una a respetar el derecho de la otra a usar de toda la extencion de dicho
paso para todo el tiempo y todas las necesidades de cada una de las dos
propriedades, la vendida por la presente a Claro M. Recto y la que queda en
poder de Miriam R. Hedrick, siendo obligatorio este pacto para todos los que
con posterioridad adquirieran por cualquier titulo las fincas mencionadas.
"SEPTIMO. Que en vista de la forma irregular del inmueble descrito en el
Certificado de Titulo aludido en el parrafo PRIMERO de esta escritura, ambas
partes convienen en practicar una nueva medicion de dicho inmueble con el
fin de que la linea divisoria entre la porcion vendida por la presente a Claro M.
Recto y la que queda en el dominio de Miriam R. Hedrick caiga en medio del
paso descrito y aludido en el parrafo anterior, y dicha linea sera perpendicular
a la calle San Marcelino."
This agreement of the parties, MIRIAM R. HEDRICK and CLARO M. RECTO, is
annotated on the respective titles of the plaintiff and the defendant, copies of
which annotations are hereto attached and made parts hereof as Annex "D"
(Annotation on plaintiff's title, TCT. No. 62769) and Annex "E" (Annotation on
defendant's title, TCT No. 45990).

48

5. By virtue of said Escritura de Compra-Venta (annex "B") but before the new
survey mentioned in "parrafo septimo" thereof was undertaken, CLARO M.
RECTO obtained a separate title, TCT. No. 7755 issued on October 2, 1917, a
copy of the technical description of which is hereto attached and made part
hereof as Annex "F".
6. In order to carry out said "parrafo septimo" of theEscritura de Compra-Venta
(Annex "B") regarding the new survey of the properties to fix the dividing line
between the properties of CLARO M. RECTO and MIRIAM R. HEDRICK, the said
Claro M. Recto filed a Motion dated July 19, 1920, a copy of which motion is
hereto attached and made a part hereof asAnnex "G". In a letter dated
December 21, 1920, a copy of which is hereto attached and made thereof as
Annex "H". CLARO M. RECTO wrote to a certain MARCIAL ZAMORAof the
General Land Registration Office asking for the issuance of a new title in his
favor in accordance with the new plan submitted by him (Annex "J" of this
Stipulation). The said Motion of July 19, 1920 was amended on September 30,
1921, as per copy of the Amended Motion hereto attached and made part
hereof as Annex "I", in the Court of Land Registration of Manila, Record No.
662, for the issuance of a new title for his property based on the new survey,
the amendment consisting of the addition of a paragraph which reads as
follows:
"Que el compareciente no reclama las porciones Lote 9b y Lote 23b del
referido plano S.W.O. 3753, sino solamente las porciones Lotes A, B, C, y
D."
The said Motion and Amended Motion were accompanied with Exhibit "A" (of
said motions), a copy of the Escritura de Compra-Venta, which is Annex "B" of
this Stipulation; Exhibit "B" (of said motions), the re-survey plan abovementioned and approved by the Director of Lands, a certified copy of which resurvey plan is hereto attached and made part hereof as Annex "J"; and Exhibit
"G" (of said motions), the technical descriptions of the lots covered in the
above-said re-survey plan (Annex "J" of this Stipulation), a certified copy of
which is hereto attached and made part hereof as Annex "K". On October 20,
1921, said Claro M. Recto received a letter from the General Land Registration
Office, a certified copy of which is hereto attached and made part hereof as
Annex "L". Before said Motion and Amended Motion were acted upon, Claro M.
Recto filed a Motion to Withdraw the Motions of July 19, 1920 and September
30, 1921, dated January 30, 1922, on the ground that it appeared "from the
report submitted to this Court by the Chief Surveyor of the General Land
Registration Office that the plan S.W.O. 3753 attached to the motions of the
undersigned of July 19, 1920, and September 30, 1921, does not agree with
the terms of the instrument of date of September 21, 1917,and that Transfer
Certificate of Title No. 7755 in the name of the undersigned is in accord with

49

the terms of said instrument." A copy of the Report of the Chief Surveyor of
the General Land Registration Office referred to in said motion to withdraw
and a copy of the said motion to withdraw are hereto attached and made parts
hereof as Annexes "M" and "N". The Court issued an Order dated January 31,
1922, a copy of which is hereto attached and made part hereof as Annex "O",
granting the withdrawal of the motions dated July 19, 1920 and September 30,
1921.
7. The property purchased by CLARO M. RECTO from MIRIAM R. HEDRICK
became the subject of a series of transfers, to wit:
a. Sold by CLARO M. RECTO to EMMANUEL CONTY, TCT No. 7755 was
cancelled by TCT No. 31334 dated September 1, 1928.
b. Sold by EMMANUEL CONTY TO SALVADOR BENEDICTO (the herein
defendant), TCT No. 31334 was cancelled by TCT No. 45990 dated
December 1,1934. A copy of the technical description appearing on said
TCT No. 45990, whch is the present transfer certificate of title of the
defendant, is hereto attached and made part hereof as Annex "P", and
the Survey Plan thereof as plotted by the G.L.R.O. in accordance with the
technical description (Annex "P") is hereto attached and made part
hereof as Annex "Q".
8. MIRIAM R. HEDRICK, as owner of the remaining lots Nos. 10 and 24 of
Survey Plan No. RS-219, subsequently obtained a new and separate title, TCT
No. 22760 dated September 20, 1924, whose technical description is based on
the Cadastral Survey made from January 20, to July 12, 1919, wherein both
Lots Nos. 10 and 24 of Survey Plan RS-219 were consolidated and designated
as Lot No. 12 of Block No. 372 of the Cadastral Survey of Manila. The technical
description and areaof said Lot No. 12 based on the Cadastral Survey are
different from the technical description and area of Lots Nos. 10 and 24 of
Survey Plan RS-219, and likewise, Lots Nos. 8, 9, 22, and 23 of Survey Plan RS219 were consolidated and designated as Lot No. 11 of Block No. 372 of the
Cadastral Survey of Manila with a different area and technical description.
9. The property of MIRIAM R. HEDRICK covered by TCT No. 22760, as abovestated, became the subject of a seriesof transfers, to wit:
a. Sold by MIRIAM R. HEDRICK to CHOW KWO HSIEN, TCT No. 22760 was
cancelled by TCT No. 22766 dated September 23, 1924.
b. Sold by CHOW KWO HSIEN to GENERAL SECURITY AND INVESTMENT
CO., TCT No. 22766 was cancelled by TCT No. 49798 dated August 26,
1936.

50

c. Sold by GENERAL SECURITY AND INVESTMENT CO. to VICENTE A.


HERAS (the herein plaintiff), TCT No. 49798 was cancelled by TCT No.
62769 dated September 19, 1941. A copy of the technical description
appearing on said TCT No. 62769 which is the present title of the
plaintiff, is hereto attached and made part hereof as Annex "R", and the
Relocation Plan thereof, S.W.O. 39343, approved by the Assistant
Director of Lands on April 19, 1955, is hereto attached and made part
hereof as Annex "S".
10. Sometime in 1941, the plaintiff [Heras] demolished the entire building
situated on his property.
The trial court found that after selling Lots 8, 9, 22 and 23 (with an area of 766.90
square meters), Miriam R. Hedrick obtained a separate title for the remaining Lots
10 and 24. The total area of these two lots was 540.4 square meters only [together
with those sold to Claro M. Recto the two lots formed one parcel with an area of
1,307.3 square meters covered by TCT 3623], but in the new title (TCT 22760)
issued to Hedrick, their total area was made to appear to be 681.30 square meters.
The increase in area was due to the fact that the technical description used in the
new title was based on a cadastral survey. Since the respondent Heras, as
successor-in-interest of Miriam R. Hedrick, owned no more than 540.4 square
meters, the court held that no portion of his property had been encroached upon by
the petitioner Benedicto.
The trial court likewise found that the easement of way was found entirely within
the property of Benedicto, contrary to the stipulation in the deed of sale between
Miriam R. Hedrick and Claro M. Recto that it should be between their properties,
with each contributing an equal portion of his property. According to the court, this
was the reason why Recto, Benedicto's predecessor-in-interest, who had earlier
asked for a resurvey in accordance with the deed of sale, subsequently withdrew his
motion, after finding that the passageway was located entirely within his property.
Accordingly, the court directed both parties to contribute equally to the
maintenance of a three to four-meter-wide passageway between their properties,
with the property line running at the middle of the passageway. It rejected
Benedicto's claim that the easement had been extinguished by nonuser and by the
cessation of the necessity for a passageway.
Both parties appealed to the Court of Appeals. Salvador Benedicto, who in the
meantime died, was substituted by the judicial administrator of his estate, Roberto
S. Benedicto.On February 29, 1964 the Court of Appeals rendered a decision
affirming in toto the decision of the trial court, and on April 3, 1964 it denied the
motions for reconsideration filed by the parties.

51

The petitioner Benedicto seeks a review of the decision of the Court of


Appeals. 1 According to him, the easement was originally constituted because the
buildings then erected on the respective properties of Miriam R. Hedrick and Claro
M. Recto so adjoined each other that the only way the back portions of the
properties could be reached by their owners from San Marcelino street was through
the passageway. He claims that when the respondent Heras had his building
demolished in 1941 the property gained direct access to San Marcelino street with
the result that since then there has been no need for the passageway. The
petitioner argues further that it could be assumed that since 1941 the passageway
ceased to be used "for certainly [the respondent] could not be expected to be
making 'detours' to reach San Marcelino Street when the very frontage of his
property was now open in its entirety to San Marcelino Street."
Article 631 of the Civil Code provides in part:
Art. 631. Easments are extinguished:
xxx

xxx

xxx

(2) By nonuser for ten years, with respect to discontinuous easements, this
period shall be computed from the day on which they ceased to be used; and,
with respect to continuous easements, from the day on which an act contrary
to the same took place;
(3) When either or both of the estates fall into such condition that the
easement cannot be used; but it shall revive if the subsequent condition of the
estates or either of them should again permit its use, unless when the use
becomes possible, sufficient time for prescription has elapsed, in accordance
with the provisions of the preceding number; . . . .
This provision was taken from article 546 of the Civil Code of 1889, with the
modification that the period of nonuser was reduced from 20 to 10
years.1awphl.nt
The petitioner argues at length that this case is governed by the present Code, and
that since 14 years had elapsed from the time the building on Heras' property was
demolished in 1941 to 1955 when this action was begun (during which period he
assumed that the passageway ceased to be used because Heras' property had
direct access to the street), the easement must be deemed to have been
extinguished.
For the purposes of this decision we do not find it necessary to determine whether
the appropriate period of nonuser in this case is 20 or 10 years. For one thing, there
is no indubitable proof of nonuser. The petitioner merely assumes that the
passageway in question had not been in use since 1941 because the property of

52

Heras has since gained direct access to San Marcelino street with the demolitionof
his house. For another, even if we assume that the period of prescription based on
nonuser is 10 years, the very testimony of the petitioner Benedicto shows that it
was only in 1946 that he had the passageway walled in by constructing a fence, and
since the present action was filed in 1955, granting that article 631 of the Civil Code
is applicable, the prescriptive period has not yet elapsed.
Nor can presumptive renunciation by Heras of the use of the said passageway be
inferred. It would appear from the record that Heras started the construction of an
apartment building on his parcel of land after the demolition of his house in 1941,
and that although interrupted by World War II, construction was continued in 1955.
Since it is patent from the stipuation of facts that the easement in question is
mainly a vehicular passageway, the obvious need for such passageway to the rear
portion of the projected apartment building negates any presumptive renunciation
on the part of Heras.
Moreover, the easement in this case is perpetual in character ("para todo el tiempo
y todas las necesidades de cada una de las dos propriedades, la vendida por la
presente a Claro M. Recto y la que queda en poder de Miriam R. Hedrick, siendo
obligatorio este pacto para todos los que con posterioridad adquirieran por
cualquier titulo las fincas mencionadas") and was annotated on all the transfer
certificates of title issued in the series of transfers from Miriam R. Hedrick through
to the respondent Heras, and in the transfer certificates of title issued in the series
of transfers from Claro M. Recto through to the petitioner Benedicto. Since there is
nothing in the record that would point to a mutual agreement between any of the
predecessors-in-interest not between the petitioner and the respondent themselves
with respect to the discontinuance or obliteration of the easement annotated on the
titles, the continued existence of the easement must be upheld and respected.
The fact that the easement here is one of necessity does not detract from the
conclusion we have reached. For even assuming that with the demolition of the
house on Heras' property the necessity for the passageway ceased (a point
traversed by Heras who claims that he demolished his house precisely in order to
build an apartment building in its place), still, as was held in one case 2 "the fact that
an easement [by grant] may have also qualified as an easement of necessity does
not detract from its permanency as a property right, which survives the termination
of the necessity." Indeed, when the easement in this case was established, the
parties unequivocally made provisions for its observance by all who in the future
might succeed them in dominion, and this is the reason the permanent character of
the easement was annotated on each and all of the transfer certificates of
title.1awphl.nt
ACCORDINGLY, the decision appealed from is affirmed, at petitioner's cost.

53

G.R. No. L-31118

January 14, 1930

MARCELO FRANCISCO, plaintiff-appellant,


vs.
TIMOTEO PAEZ and RICARDO JABSON, defendants-appellees.
In the complaint the plaintiff claims a right of way, upon payment of indemnity,
across defendant Paez's land; that the latter recognize the plaintiff's ownership of a
piece of land of 23.46 square meters, that he vacate it, and that the defendant
indemnify him for the damages arising from said occupation.
Defendant Paez answered with a general denial and set up the special defense of
prescription. Defendant Jabson, in turn, also answered with a general denial, and by
way of special defense denied that the plaintiff has any right of way over his land,
because outside of it there is another possible way to the street, which is shorter
and less prejudicial.
After the judicial commissioner appointed for the purpose had taken the evidence
and inspected the land, the Court of First Instance of Manila decided the case as
follows:
In view of the foregoing considerations, the complaint is dismissed with
respect to the first cause of action. It is held that the plaintiff is the absolute
owner of the piece of land mentioned in the second cause of action, with an
area of 23.46 square meters and included within lot No. 13, block No. 2718 of
the certificate of title issued in his favor, and he is entitled to the ownership of
the small house built of strong materials by defendant Paez thereon, upon
payment of its value, or to compel the defendant to purchase said land at
twenty pesos (P20) per square meter. Should the plaintiff choose the first
alternative, he shall pay the price to be agreed upon by and between himself
and said defendant, and in default thereof, the value to be later determined by
the court after hearing the evidence that might be presented in connection
therewith. Defendant Paez shall pay the costs of this action. So ordered.
(Pages 40 and 41, bill of exceptions.)
The plaintiff appealed from this judgment, and makes the following assignments of
error:
1. In holding that the plaintiff's action to enforce his right of way over
defendant Paez's land is barred by the statute of limitations.
2. In not holding that the action to enforce a right of way is imprescriptible.
3. In denying the relief sought in the complaint, respecting the right of way
through Timoteo Paez's land.

54

The question raised in this appeal, then, is whether the plaintiff's right of way over
defendant Paez's land has prescribed or is imprescriptible.
The trial court held the plaintiff's right to have been barred on the following
grounds:
It has been proved that the parcels of land now belonging to defendant
Ricardo Jabson originally belonged to a certain Paulino Castaeda y Francisco,
married to Teodora del Mundo, who, on December 20, 1908 obtained decree
No. 3138 in proceeding No. 4865, and subsequently, certificate of title No.
1449. On October 20, 1909, the parcel of land thus held by Paulino Castaeda
y Francisco was subdivided by the latter into two parts, one containing 193.66
square meters, situated in the inner portion of the space between Padre Rada
and Ilaya Streets, and the other containing 173.71 square meters,
conterminous with said streets. The first of these parcels, that is, the interior
portion, after successive transfers became the property of the plaintiff herein,
and the second portion, after several transfers, also, became the property of
defendant Jabson. Therefore, from October 20, 1909, when the property was
subdivided into the two aforesaid portions, there arose the right of the original
owners of the interior parcel to claim a right of way over the adjacent land
which was then the land abutting upon P. Rada and Ilaya Streets, through
which was the nearest and shortest way to said streets. Notwithstanding the
fact that from that date said right arose, none of the previous owners
exercised said right until the plaintiff attempted to enforce it through the
complaint filed on September 1, 1927, that is, after almost eighteen years had
elapsed.
Section 40 of the Code of Civil Procedure provides that the action to recover
ownership or possession of real property, or an interest therein, may only be
exercised within ten years after the cause of said action arises. Applying this
legal provision to the facts established in this case, it is evident that the
plaintiff cannot obtain the relief he seeks in his complaint because his action is
barred by the statute of limitations, inasmuch as neither he nor his
predecessors demanded the right of way within said limitations. (Pages 36, 37,
and 38, bill of exceptions.)
The facts related by the court below are based upon the result of these
proceedings. But we should not lose sight of the fact that although it is true that
easements are extinguished by non-user for twenty years (article 546, No. 1, Civil
Code), nevertheless, the case at bar does not deal with an easement which has
been used, while the legal provisio cited is only applicable to easements which
being in use are later abandoned. Here is what Manresa says on this point:

55

Prescription affects all easements lawfully arisen although they may not have
been used. Nevertheless, the second paragraph of article 546, number 2,
refers to an easement in use, for one cannot discontinue using what one has
never used, and there can be no act, at least in all the cases, adverse to an
inchoate easement. (4 Commentaries on the Civil Code, fourth edition, page
662.) And in speaking of legal easements, such as the one in question, the
same author observes.
(c) Others, finally, may be extinguished by non-user, but only with respect to
the actual form or manner in which they had been exercised, and the right or
the power to claim the exercise of legal easement does not prescribe, as
occurs especially in the case of the right of way and easement of aqueduct.
(Emphasis ours.) (Ditto, pages 662 and 663).
The appellee also cites in support of his appeal No. 5 of said article 546 which refers
to extinction of easements by waiver. It should be noted that in the case of
intermittent easements, such as the right of way, the waiver must be, if not formal
and solemn, at least such as may be obviously gathered from positive acts, and the
mere refraining from claiming the right is not, to our mind, sufficient for the
purpose. This seems to be the drift of the following commentaries made by
Manresa:
There has also been some discussion as to whether the waiver should
be express or implied. It may be that the act of walling up a window by the
owner of the dominant estate is a plain act of implied waiver, and yet, this act
does not of itself extinguish the easement, but only serves to mark the
beginning of the prescription. In intermittent easements (like the one in
question) the mere fact of leaving them seems to indicate a waiver, and yet, it
is not sufficient to extinguish them. It seems then that as a general rule, an
express waiver should be required, but without prejudice to having the courts
decide in exceptional cases that there is an evident waiver, inferred from acts
which reveal it beyond all doubt. (Ibid., pages 667, 668.) (Emphasis ours.)
The mere fact that the plaintiff and his predecessors refrained from claiming the
easement, without any positive act to imply a real waiver, does not, in our opinion,
bring the case within the provision of the aforesaid article 546, No. 5, of the Civil
Code.
Our conclusion is that such a right of way, provided by the law for the benefit of
private individuals, may be waived, for Manresa so declares:
Legal easements established in the interest of private individuals may be
waived, but not so those of public utility. (Opus, volume and edition as
aforecited, page 668.)

56

But the court holds, for the reasons stated above, that said article 546, No. 5, Civil
Code, is not applicable to the instant case, with reference to waiver, nor is No. 2 of
the same article, regarding non-user; and therefore, the plaintiff's right of way
cannot be deemed extinguished.
The judgment appealed from is modified and it is held that, upon payment of the
proper indemnity, the plaintiff is entitled to a right of way through the shortest and
least prejudicial portion of the servient estate, from plaintiff's lot designated No. 3,
in the plan Exhibit A, through defendant Timoteo Paez's lot No. 12 according to said
plan, to P. Rada Street, as provided in articles 564, 565 and concordant articles of
the Civil Code.
Without express pronouncement of costs. So ordered.
G.R. No. L-23818 January 21, 1976
EMILIO PURUGGANAN, plaintiff-appellee,
vs.
FELISA PAREDES and TRANQUILINO BARRERAS, defendants-appellants.
The main issue in this appeal is whether or not the summary judgment of the Court
of First Instance of Abra based on the pleadings and reports submitted by the
commissioner in Civil Case No. 738 entitled Emilio P. Purugganan vs. Felisa Paredes,
et al., was correctly rendered.
Plaintiff-appellee Emilio Purugganan is the owner of a piece of a residential lot
subdivided as Lot 1 and Lot 2, situated at the poblacion of Bangued, Abra and
technically described under Torrens Title No. R-6 in his name, adjacent to and
bounded on the North by the lot of defendant-appellant Felisa Paredes. The lots of
the plaintiff-appellee are subject to an easement of drainage in favor of the
defendants-appellants fully quoted in the Decree of Registration of the Court of First
Instance of Abra, G.L.R.O. Rec. No. 3256 to wit:
That the oppositor (Felisa Paredes) withdraws her opposition to the
registration of the lots Nos. 1 and 2 of the applicant, and in
compensation to said withdrawal by the oppositor of her opposition, the
applicant agrees to respect an easement or servitude over a portion of
the lots Nos. 1 and 2 which is EIGHT AND ONE HALF (8-) meters in
length commencing from point 4 of Lot No. 2 and stretching towards Lot
No. 1 going Eastward, and the width is ONE (1) meter, in order that the
rain water coming from the roofing of a house to be constructed by the
oppositor over the ruins of her brick wall now standing along the
Northeastern boundary of Lot 1 shall fall into the land of the applicant.

57

In or about the month of March 1951, the defendants-appellants constructed a


house on their lot adjacent to Lots 1 and 2 of plaintiff-appellee in such a manner
that the southern side of their house is exactly on the brick wall, the southern side
of which is the demarcation line between the plaintiff-appellee and the defendantsappellants, demolishing said brick wall and built thereon the southern wall of their
house with 3 windows. The house constructed by the defendants-appellants is 2-
meters longer than the length of roofing allowed in the abovequoted Decree of
Registration, and has an outer roofing (eaves) of 1.20 meters, protruding over the
property of the plaintiff-appellee which is .20 meters wider than that allowed in the
same Decree of Registration, and the rain water from the GI roofing falls about 3
meters inside Lots 1 and 2 of the plaintiff-appellee. The defendants-appellants also
placed 3 windows each on the first and second floors of their house on the side
facing Lots 1 and 2 of plaintiff-appellee. From the time the defendants-appellants
started to construct their house, the plaintiff-appellee has repeatedly and
continuously been demanding from the defendants-appellants that the construction
of their house be in accordance with the easement, but the defendants-appellants
refused to observe the easement and to close their windows. They also prohibited
the plaintiff-appellee from constructing a party wall between points 1 and 2 of Lot 2
and between points 2 and 3 and 4 of Lot 1.
In their answer, defendants-appellants admitted the allegations in paragraph 4 of
the complaint with respect to the existence of an "Amicable Settlement" with the
plaintiff-appellee but interposing a denial of the rest and alleging that the ruined
brick wall which stands between the properties of the plaintiff-appellee and their
properties solely and exclusively belongs to them to the exclusion of the plaintiffappellee, the same having been inherited by defendant-appellant Felisa Paredes
from her ascendants from time immemorial, possessing them, peacefully,
continuously and adversely against any other party for so many years up to the
present; they also admitted having constructed a house on the very lot owned by
them, with windows on the side facing the south, the same as the house which
turned into ruins by reason of the bombing of Bangued in March 1945, but they
denied that the same was constructed in or about March 1951, as said house was
reconstructed and re-erected on the ruins of a Spanish-built house sometime in
later months of 1950. They further alleged that the house standing on the dominant
estate pertaining to Felisa Paredes was constructed long before the issuance of the
Decree of Registration alluded to in the complaint and that they have not violated
the terms of the Decree of Registration referred to in paragraph 4 the complaint;
had long existed before the Decree of Registration in question was issued, in the
same way that said windows existed long before the bombing of Bangued in March
1945 and therefore, plaintiff-appellee, as owner of the servient estate, is estopped
from questioning the existence of said windows; that since time immemorial, the
house bombed in March 1945, on which ruins stands the present house, had
windows facing Lot No. 1, in the same way the windows of the present house are so

58

constructed facing same lot No. 1 a long time with notice, knowledge and
acquiescence of the plaintiff-appellee as owner of the servient estate. Defendantsappellants prayed that plaintiff-appellee be ordered to respect all existing
construction on their lot and to refrain from constructing a party wall to obstruct the
easement of light, and view; that the easement of light and view be inscribed on
the title of plaintiff-appellee's lots as well as to pay the actual moral and
consequential damages.
On September 7, 1959, the trial court pursuant to a pre-trial agreement issued an
order appointing the Provincial Land Officer of the Bureau of Lands, Ilocos Norte, or
his duly authorized representative to relocate the monuments and determine the
boundary line between the lots of the parties involved.
On May 5, 1962 plaintiff-appellee filed a motion for summary judgment in
accordance with the prayer of his complaint except the portion relative to damages
where he reserved his right to present his evidence. He supported his motion for
summary judgment with an affidavit of merits to which he has attached the Original
Certificate of Title No. R-6 the Decree of Registration for the issuance of said
certificate of title, the Order dated September 7, 1959 and the report of the
Commissioner. In asking for summary judgment plaintiff-appellee contended that
from the respective pleadings of the parties and the Commissioner's Report relative
to the relocation and boundaries of his lands and the adjacent lands of defendantsappellants which are both covered by Torrens Certificate of Title, it is evident that
there is no genuine issue as to any material fact, except as to the amount of
damages.
On June 4, 1962 defendants-appellants opposed the motion for summary judgment
on the ground that their answer to the plaintiff-appellee's complaint has raised
genuine and material issues of facts. In their supporting affidavit, defendantsappellants alleged that the plaintiff-appellee was the private surveyor who surveyed
their lot in 1925 and that in the course of his survey he had acted in bad faith when
he excluded the portion of their land, which was the subject matter of their
opposition to the registration of plaintiff-appellee's lots; that they constructed their
house in 1950 without any protest from the plaintiff-appellee and was almost
complete when the Decree of Registration was issued by the court; that the
plaintiff-appellee knew fully well that the defendants-appellants were merely
reconstructing a house which had been existing prior to the bombing of Bangued in
1945; and that the brick wall standing along the house is exclusively owned by
them.
On July 30, 1962, the lower court rendered the now questioned Summary Judgment,
the dispositive portion of which reads:

59

IN VIEW OF THE FOREGOING CONSIDERATION, summary judgment is


hereby rendered in favor of the plaintiff and against the defendants:
(a) Ordering the defendants to reconstruct the roof and eaves of their
house on the southern side now existing on their lot such that the falling
water shall not fall on curve into the lots of the plaintiff beyond one
meter from the boundary line and by 8- meters in length and to
remove the said protruding eaves and roof;
(b) Ordering the herein defendants to reconstruct the wall of their house
on the southern side either by placing in two meters north of the
boundary line if they desired their windows on the first and second floors
to continue to exist, or to permanently close the three windows on the
second floor and such other openings or apertures facing the lot of the
plaintiff;
(c) Ordering the defendants to comply with what is ordered above in
Pars. (a) and (b) within sixty (60) days from the finality of this judgment.
Upon their failure to do so the Provincial Sheriff of Abra is hereby
authorized to implement this judgment and execute the acts mentioned
in Pars. (a) and (b) hereof, at the expense of the defendants:
(d) Enjoining perpetually the herein defendants from prohibiting the
plaintiff from making such legal and lawful constructions on his lots up to
the boundary between plaintiff's lot and defendants' lot, provided always
that such construction in whatever form, as a firewall, fence, etc., shall
not violate the casement of drainage in favor of the defendants, and to
conform with the provisions of Art. 675 of the New Civil Code; and
(e) Ordering the defendants from further encroaching into plaintiff's lots
and molesting the said plaintiff in the lawful exercise of dominion over
his own property.
Plaintiff-appellee reserved his right to adduce evidence with respect to damages.
On September 3, 1962 defendants-appellants moved for reconsideration of the
foregoing decision on the ground that there is a genuine and material issue of fact
and that said decision is unsupported by law and evidence. Whereupon the court a
quo, deferring in the meantime any action on the motion, issued an order
appointing Atty. Gelacio Bolante, Clerk of Court, to act as commissioner to make an
ocular inspection on the premises of the lot in question and to measure the eaves of
the house of the defendants-appellants to find out whether it conforms with the
annotation contained in the Torrens certificate of Title of the plaintiff-appellee.

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On December 4, 1962 the Clerk of Court submitted his report. After receiving a copy
of said report defendants-appellants manifested to the court that they agree with
the findings of facts therein and prayed that judgment be rendered in accordance
therewith and that their ownership of the brick wall mentioned in said report be
confirmed.
On July 23, 1963 the trial court denied the motion for reconsideration of its
summary judgment.
Hence, this appeal.
Defendants-appellants contended that the lower court erred in rendering a
summary judgment because (1) there is actually a genuine issue of material facts
raised in the pleadings; (2) that it made a finding of fact not supported by any
evidence; and (3) that it rendered summary judgment without any legal basis. They
claimed that after denying the allegations of plaintiff-appellee's complaint that they
have violated the easement of drainage there was actually a genuine issue of
material fact presented. The allegation referred to is that contained in paragraph 6
which states that the roof of defendants' house protrudes by .2 meter wider and 2 meters longer than that allowed by the Decree of Registration. This denial in
paragraph 4 of the Answer of the defendants-appellants reads as follows:
That the defendants deny the allegations in paragraph 6 of the
complaint, and allege that the house standing on the dominant estate
pertaining to Felisa Paredes, was constructed long before the issuance of
the Decree of Registration alluded to in the complaint, the herein
defendants not having violated the terms of the Decree of Registration to
in paragraph 4 of the complaint.
Again in their opposition to the motion for summary judgment, defendantsappellants repeated the same denial and averments by alleging therein:
Defendants specifically denied these allegations of the plaintiff and
alleged that (a) the house of the defendants was constructed sometime
in the latter months of 1950, before the issuance of the Decree of
Registration adverted to by the plaintiff, and therefore could not have
violated that said Decree, and (b) that the windows complained of by the
plaintiff are reconstructed windows of the reconstructed house of the
dominant estate which had been in existence since the Spanish Regime,
with the knowledge, acquiescence and toleration of the plaintiff and his
predecessors in interests for more than sixty (60) years.
Even the supporting affidavit of defendants-appellants alleged that the brick wall
standing along their house and adjacent to the land of the plaintiff-appellee is
owned by them. A close look at the foregoing denials however, will show that the

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allegations defendants-appellants were trying to challenge relate to the validity of


the easement of drainage as annotated in the Certificate of Title of plaintiff-appellee
and not to the allegation that the roof of defendants-appellants protrudes by .2
meter wider and 2- meters longer than that allowed by the Decree of Registration.
This must be the reason why in his summary judgment, the trial judge noted the
first issue as: "(1) that the house now standing on the lot of the defendants was
constructed before the issuance of the Decree of Registration and, therefore, such
construction did not violate said Decree of Registration particularly the easement
annotated on the Original Certificate of Title No. R-6 ...."
It is only in their Motion for Reconsideration that defendants-appellants made the
clarification that the issue is not whether their house was constructed before or
subsequent to the Amicable Settlement but whether or not the roofing was .2 meter
wider and 2- meters longer than the distance allowed in the Decree of
Registration. So after the clarification, the trial judge ordered that an ocular
inspection of the premises of the lots in question be made and the eaves of the
house of the defendants-appellants be measured whether it conforms with the
annotation contained in the Torrens Certificate of Title of plaintiff-appellee. After the
ocular inspection defendants-appellants readily manifested their conformity to the
findings of fact made by the commissioner appointed by the court. Under such a
situation, it would seem that there was no need for a trial on the merits to resolve
the question as to whether the defendants-appellants' roof was constructed in
violation of the easement of drainage of plaintiff-appellee. All that remained for the
trial court, to do was to evaluate the facts and the arguments in the pleadings and
the reports of the commissioner.
Defendants-appellants faulted the trial court for concluding that they have violated
the conditions of the easement of drainage without taking into consideration the
report of the commissioner appointed by it. After going over the pleadings of the
parties and the reports of the commissioner, we find no substantial ground to
disturb the conclusion of the trial court. Defendants-appellants have made a
mistake in applying the distances prescribed in the Decree of Registration to the
roofing of their house. They failed to comprehend the meaning of the phrase
"servidumbre de vertiente de los tejados" constitutes on the land of plaintiff.
Translated, it means the easement of receiving water falling from the roof which is
an encumbrance imposed on the land of the plaintiff-appellee. Consequently, the
distances prescribed in the Decree of Registration should not correspond to the
width and length of the roof of the defendants-appellants' house but to the distance
of the rain water falling inside the land of the plaintiff-appellee because the
encumbrance is not the roof itself but the rain water falling inside the property of
the plaintiff-appellee. The Amicable Settlement, which was the basis of the Decree
of Registration, clearly states that the servitude on the land is to the extent of the
distances setforth thus:

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... the applicant agrees to respect an easement of servitude over a


portion of the lots Nos. 1 and 2 which is EIGHT AND ONE HALF (8-)
meters in length commencing from point 4 of Lot No. 2 and stretching
towards Lot No. 1 going Eastward, and the width is ONE (1) meter, in
order that the rain water coming from the roofing of a house to be
constructed by the oppositor over the ruins of her brick wall now
standing along the Northeastern boundary of Lot 1 shall fall into the land
of the applicant.
And the Decree of Registration tersely states that a portion of Lot 1 and Lot 2
consisting of 8- meters long and 1 meter wide is subject to the easement of
receiving water falling from the roof. If these distances were made to correspond to
the measurement of the roof then the encumbrance on plaintiff-appellee's property
would be more than the distances specified in the Certificate of Title. The report
submitted by the Commissioner appointed by the lower court to make an ocular of
the premises involved shows that the eaves of the house of defendants-appellee
and measures 8 meters and 20 centimeters in length; that during ordinary rain the
water falling from the eaves of the defendants-appellants' house fall within one
meter from the boundary line of plaintiff-appellee's property and during heavy rains
more than one meter from said boundary line. The foregoing findings and
observations of the Commissioner weaken defendants-appellants' disclaimer that
they did not violate the conditions of the easement of drainage of plaintiff-appellee.
There is such violation because the roof of the defendants-appellants protrudes by
98 centimeters over the property of plaintiff-appellee, so that during a heavy rainfall
the propulsion of the water would go as far as one meter over the property of the
latter. Obviously the lower court is correct in finding the defendants-appellants to
have violated the conditions of the easement of drainage of plaintiff-appellee.
Defendants-appellants also blamed the trial court for ruling that they have not
acquired an easement of light and view of the property of the plaintiff-appellee. The
trial court's ruling that defendants-appellants have not acquired an easement of
light and view on the property of the plaintiff-appellee is premised on Section 39 of
Act 496 in accordance with which the servient estate was registered. Said Section
provides:
Every person receiving a certificate of title in pursuance of a decree of
registration ... shall hold the same free of all encumbrance except those
noted on said certificates ...
The same section, however, provides: "But if there are easement or other rights
appurtenant to a parcel of registered land which for any reason have failed to be
registered, such easement or rights shall remain so appurtenant notwithstanding
such failure, and shall be held to pass with the land until cut off or extinguished by
the registration of the servient estate or in any other manner (Sec. 39, Act No. 496,

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as amended by Act No. 2011, and Sec, 4, Act No. 3621). In the case of Cid vs. Javier,
108 Phil. 850, 853, plaintiff's lot (dominant) as well as defendants' lot (servient) are
covered by Original Certificate of Title Nos. 7225 and 7545 respectively. In both of
them, there does not appear any annotation with respect to the easement
supposedly acquired by prescription which counting the twenty, (20) years from
1931 or 1914 would have already ripened by 1937, date of the decrees of
registration. In said case our Supreme Court held:
Granting that in the instant case an easement of light and view was
acquired by prescription, it was cut off or extinguished by the of the
registration of the servient estate under the Torrens System without the
easement being annotated on the corresponding certificate of title,
pursuant to Sec. 39 of the Land Registration Act (Act 496).
The lower court correctly applied the foregoing doctrine to the case at bar.
Indeed if defendants-appellants had acquired the said easement of light and view
by prescription through user since time immemorial why did they not intervene in
the registration proceedings for the inclusion of said easement in the Certificate of
Title of plaintiff-appellee as an encumbrance thereon, in the same manner that the
easement of drainage was annotated in the Certificate of Title of plaintiff-appellee?
The easement of drainage was inscribed in the Certificate of Title of plaintiffappellee in their favor by virtue of an amicable settlement resulting from their
opposition to the registration of plaintiff-appellee's property. In this light, their
defense of user "since time immemorial" becomes flimsy and is merely being used
to simulate a factual issue.
Finally, defendants-appellants argued that the summary judgment of the lower
court has no legal basis. Summary judgment is employed as a method of disposing
a case when the pleadings, depositions, admission and affidavits filed by the parties
show that there is no genuine issue as to any material fact and that the movant is
entitled to a judgment as a matter of law (Section 3 of Rule 34). In the case at bar
the plaintiff-appellee's right to the reliefs sought is dependent on the existence or
non-existence of the easement of drainage and of light and view of favor of the
defendants-appellants as well as on the conditions attached to such easements.
There is no dispute that plaintiff-appellee's property was registered in 1951 under
the Torrens System and that only the easement of drainage is annotated on his
Certificate of Title, subject to prescribed distances. But what defendants-appellants
have advanced as factual issues are: (1) that they have not violated the prescribed
distances of the easement of drainage; and (2) that the easement of light and view
was in existence since time imemorial. The first factual issue was resolved by the
report submitted by the commissioner to which defendants-appellants have given
their conformity. The second factual issue is immaterial to the disposition of the
case because the servient estate was registered in 1951 without the easement of

64

light and view being annotated on the title. Since the supposed easement of light
and view is not annotated on the title, it becomes immaterial whether such
easement existed since time immemorial. On this point, there is no need to have a
trial on the merits and a summary judgment would appear to be in order.
IN VIEW OF THE FOREGOING, the summary judgment appealed from is hereby
affirmed with costs against defendants-appellants.
SO ORDERED.
ONGSIACO VS ONGSIACO

CARIDAD ONGSIACO, ET. AL., plaintiffs appellants


vs.
EMILIA ONGSIACO, ET. AL., defendants appellees
GR. No. 7510, 30 March 1957
Appeal from an order of the Court of the First Instance of Nueva Ecija (Civil Case No.
755), granting the motion to dismiss the complaint of Caridad Ongsiaco and her
husband against her sister Emilia and the latters husband. The complaint alleged
three (3) causes of action. In the motion to dismiss, it was alleged that all the
causes of action had become barred by extinctive prescription.
1. First Cause of Action: Alleged Revocation of the Donation. The cause of action for
the revocation of the donation made by the donor, Gorgonia Vda. de Ongsiaco,
accrued from the time the donee, Emilia Ongsiaco, failed to pay the yearly pension
of PhP1,000 to the donor, and that was on 30 September 1930. Hence, the action to
revoke, being based on a written contract, prescribed ten years thereafter, i.e., on
30 September 1940, under sec. 43 of Act 190, long before the present case was
instituted.
2. Second Cause of Action: Construction of the Dikes Interfering with
Appellants Easement of Drainage. The basis of this cause of action can only be the
legal servitude of drainage of rural estate regulated by Art. 552 of 1889 Civil Code
(The Old Civil Code). Since the enjoyment of this servitude does not depend upon
acts of man because descent of rain water from the higher to the lower estates is
due to the force of gravity, this easement must be classed among the continuous
ones (Article 532, Old Civil Code; Article 615, New Civil Code), and it is subject to
extinction by non-user for the period required by law (Article 546, Old Civil Code;
Article 631, New Civil Code). The original 20-year period of extinctive prescription
by non-user under Article 546 of the Old Civil Code was reduced by sec. 41 of Act
190 to ten years from their violation, servitudes being clearly interest in land
(Soriano vs. Sternberg, 41 Phil. 211-212). Since according to plaintiffs own
evidence, the dikes obstructing the overflow from their land were built in 1937 or
1938, and the present action for their destruction was filed in 1951, the lower court
committed no error in holding that the easement sought to be enforced had already
been extinguished, and the plaintiffs action is barred by prescription.

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3. Third Cause of Action: Fraudulent Reduction of Appellants Share and Its


Usurpation by the Defendants. It is alleged that through illegal manipulations of
defendant Alzate, husband of Emilia Ongsiaco, the share of the plaintiff Caridad
Ongsiaco was made to include public properties, thereby reducing its area, while
proportionately increasing that of the defendants. When the present case was
instituted in 1951, more than 20 years had run since the partition. Hence, this
cause of action is barred by prescription
The order of Court of First Instance of Nueva Ecija is AFFIRMED

G.R. No. L-3099

May 21, 1951

CIPRIANA GONZALES, plaintiff-appellee,


vs.
PURIFICACION, GUILLERMO, EUSTACIO AND FAUSTINA, all surnamed DE
DIOS, assisted by their guardian CARLOTA INDUCIL defendants-appellants.
Plaintiff is the owner of a fishpond situated in the barrio of Bambang, Bulacan,
adjacent to the fishpond of defendants. The only source of water of her fishpond is
Kay Pateng River, to which it has neither ingress nor egress, because it has been
completely cut off from it by the fishpond of the defendants. After the several
attempts made by her to obtain from the defendants a right of way to and from said
river to furnish a source of water to her fishpond proved futile, she filed the present
action in the Court of First Instance of Bulacan.
Upon agreement of the parties, the court designated one Felipe Asuncion, a
surveyor, to investigate the premises and study the most convenient place through
which an aqueduct may be constructed for the supply of water needed by the
fishpond of the plaintiff, who accordingly investigated the property and submitted
his report. After the parties have presented their evidence, the court rendered
judgment, the dispositive part of which is as follows:
WHEREFORE the Court hereby renders judgment as follows: (a) the plaintiff to
have a right of passage for water from the river Kay Pateng to her fishpond, on
the northwest side of the dyke represented by the line connecting corners 6
and 7 of Psu-27824 lot No. 8 of the Ariston de Dios, by constructing a canal
eight meters wide and about one hundred meters long; (b) the plaintiff will
construct at her expense a similar dyke, of the same height and width
alongside the said canal opposite the old dyke; and (c) the plaintiff pay the
defendants the sum of Seven hundred and ninety-eight pesos and sixteen
centavos (798.16) as just compensation including consequential damages.
Without pronouncement as to costs.

66

IT IS SO ORDERED.
Not satisfied with this judgment, defendants appealed to the Court of Appeals, the
latter court affirming the judgment with costs against the appellants. The case now
before us on by way of certiorari.
The only question which is presented to us for determination is whether there is law
which justifies the grant to the appellee of an easement of water over the land of
the appellants in order to give to the appellee a source of water to irrigate her
fishpond.
The Court of Appeals holds the view that the claim of the appellee finds support in
the provisions of articles 118 to 125 of the Law of Waters 1866 and articles 557 and
558 of the Civil Code, which were also relied upon by the court a quo. On this point
the Court of Appeals said: "A perusal of the provisions of the Law of Waters on this
point shows that the easement of aqueduct is granted for any of the purposes
mentioned in article 113 of said law, such as irrigation, public bath, or use of
factories and drainage. The provisions of the Civil Code convey the same idea as to
the use for which the right of way may be needed. There is nothing, however, in the
provisions of both the Law of Waters and the Civil Code above mentioned, that
prohibits the use of water for purposes other than those mentioned in said laws.
Plaintiff-appellee has proven that she has the right to draw water from Kay Pateng
River to make her fishpond as productive as the other surrounding fishponds."
We agree with the Court of Appeals that articles 557 and 558 of the Civil Code can
be invoked in support of the claim of the appellee. Article 557 provides that "any
person who wishes to use upon his own land any water of which he may have the
control is entitled to take it through the intervening estates, subject to the
obligation of indemnifying the owners thereof." The phrase "of which he may have
the control" should be interpreted in connection with article 558 (1) which means
that he has a right to dispose of the water. This was interpreted to mean one who
has obtained from the government a grant to use water from a river
(Gonzales vs. Banzon, 51 Phil., 15). The use to which the water may be applied
must also be interpreted in the same way: that the water be sufficient for the use
intended (558[1]). And according to Manresa "Puede el agua solicitarse para
cualquiera de los usos necesarios de la vida." (4 Manresa, 704, 3rd Ed.). In fact
these article were applied to a grant to use water from a river for irrigation purposes
in the case mentioned above.
But as to the second canal, however, the defendant Mariano B. Banzon has
filed a counterclaim alleging that he has obtained from the Director of Public
Works a grant to use 50 liters of water per second from the Talisay River to
irrigate his lands, and, in accordance with the provision of article 557 in
connection with article 558 of the Civil Code, he asks that he be authorized to

67

open, maintain and preserve a canal similar to the second one mentioned on
plaintiff's land upon payment of the proper indemnity to the plaintiff, alleging
that the place where said canal passes is the most convenient and least
onerous to third parties, and that there is no other place more appropriate and
less prejudicial.
The defendant Mariano B. Banzon undoubtedly has a right to compulsory
easement of aqueduct upon payment of indemnity since, although he is not
the owner of the waters of the Talisay River, he can dispose of 50 liters of the
same per second, by virtue of the grant from the Director of Public Works. This
may be inferred from the provision of article 125 of the Law of Waters of
August 3, 1866, which authorizes the owner of the land on which it is sought
to impose the compulsory easement of aqueduct, to object when the applicant
is not the owner or grantee of the water.
To enjoy the right granted by article 557 of the Civil Code, the requisites
established in article 558 of the same code must be complied with.
(Gonzales vs. Banzon, supra).
If a person who has obtained from the Government a grant to use water a river from
irrigation was given the right to construct a canal over the intervening lands of
other private owners upon payment of indemnity, no valid reason is seen for not
granting the same privilege to the herein appellee who desires to draw water from a
river for the use of her fishpond. A fishpond comes within the classification of
agricultural land and is regarded as an important source of revenue (Molina vs.
Rafferty, 38 Phil. 167). It is generally constructed in low lands or swampy places and
draw its breadth of life from brooks and rivers. It is just as rich and valuable as any
piece of agricultural land and in some regions it is regarded as the main source of
wealth. It is an undertaking to be encouraged and promoted, for it contributes to
the economic development of the people. Our law should be interpreted in a sense
that may give it life if it can be done without doing violence to reason or to any rule
of statutory construction.
There can, therefore, be no doubt with regard to the right of the appellee to draw
the water she needs for her fishpond through the land of the defendants if she has
obtained the necessary permit to use the water from the Government. The law
requires that this permit be obtained from the Director of Public Works. (Sec. 14 of
Act 2152, as amended by Act 3208; The Philippine Sugar Estate Development
Co. vs. Unson and Williams, 53 Phil., 599.) While there is no proof to this effect, at
least this matter is not an issue in this case. This point is not disputed. The only
important question to be determine is how and where the right should be exercised,
but this is a question of fact which the Court of Appeals has determined and which it
is not now within our province to pass upon. The finding of said Court on this matter
is final.

68

Wherefore, the petition is hereby dismissed, without pronouncement as to costs.


G.R. No. 95738 December 10, 1991
ADRIANA DIONISIO, ET AL., petitioners,
vs.
JUDGE RODOLFO ORTIZ OF THE REGIONAL TRIAL COURT OF QUEZON CITY,
BRANCH 89 AND PABLO TAN GONZAGA, et al., respondents.
The controversy in the instant case arose from the private respondents' act of
opening a new gate along Howmart Road claiming an easement of right of way in
their favor.
The facts are as follows:
The petitioners are co-owners of lots contiguous to each other situated in the Sitio
of Kangkong, District of Balintawak, Quezon City.
The private respondents are also co-owners of lots which are adjacent to the lots
owned by the petitioners. Lot 272-B has an area of 1,427 sq. m. which was later
subdivided into two lots where Lot 272-A was assigned to Chua Lee and Chua Bun
Tong pursuant to a memorandum agreement executed by and between them. They
are also owners of another lot at the upper portion of Lot 272-B with an area of 914
sq. m.
By virtue of an agreement entered intobetween the owners of the contiguous lots
and the members of the Quezon City Industrial Estates Association (QCIEA), a right
of way was granted over Howmart Road which is a private road traversing the
contiguous lots owned by the petitioners, among others, in favor of the QCIEA
members. In return for its use, QCIEA paid compensation to the petitioners for this
right of way. The private respondents are bona fide members of the QCIEA.
In order to have access to Howmart Road, there is a gate in private respondents'
914 sq. m. lot fronting Howmart Road and another gate in Lot 272-A. As a result of
the subdivision of Lot 272, the private respondents opened a new gate in Lot 272-B
also fronting Howmart Road which is now the gate in question.
On October 5, 1989, under the instructions of Maxima Dionisio, certain persons
commenced the digging of four holes in a parallel line and afterwards put up steel
posts wielded to a steel plate in front of the newly constructed gate of private
respondents amidst the latter's protestations.The petitioners claim that the
surreptitiously constructed gate opened directly into the house of Maxima Dionisio,
exposing them to air and noise pollution arising from the respondents' delivery
trucks and service vehicles.

69

On November 7, 1989, the private respondents instituted a civil action for damages
against the petitioners. The complaint sought the immediate issuance of a writ of
preliminary injunction ordering the petitioner to remove the barricade erected by
them in front of the iron gate.
On January 8, 1990, respondent Judge Ortiz issued an Order granting the writ of
preliminary mandatory injunction. The dispositive portion of the order reads:
ACCORDINGLY, plaintiffs' prayer for the issuance of a writ of preliminary
mandatory injunction is GRANTED, and a writ of preliminary mandatory
injunction shall issue ordering the defendants to remove the barricade
erected by them in front of the iron gate of the plaintiffs at their Lot 272B, within twenty-four (24) hours from receipt of the writ, and in case of
their failure to do so, the plaintiffs are authorized to remove the said
barricade by themselves, the expenses for which is chargeable to the
defendants, upon plaintiffs' putting up of a bond in the amount of
P20,000.00, approved by this Court, and conditioned as provided in the
Rules, within five (5) days from receipt of this order. (Rollo, p. 34)
The petitioners then filed a petition for certiorari before the Court of Appeals
assailing the Order of Judge Ortiz.
Fifteen days later, the petitionersremoved the barricade in front of the gate of the
private respondents after they failed to obtain a temporary restraining order (TRO)
from the Court of Appeals enjoining the lower court from implementing its order.
The Court of Appeals dismissed the petition on the ground that the issue has
already become moot and academic since the petitioners have already complied
with the Order of the lower court.
The petitioners' motion for reconsideration was likewise denied.
Hence, this petition alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
PETITIONERS' COMPLIANCE WITH THE ORDER DATED 8 JANUARY 1990
GRANTING THE WRIT OF PRELIMINARY MANDATORY INJUNCTION
RENDERS THE PETITION FOR CERTIORARI MOOT AND ACADEMIC
CONSIDERING THAT:
1. THE HONORABLE COURT OF APPEALS CAN STILL GRANT
PRACTICAL RELIEF TO THE PARTIES BY RECALLING OR LIFTING
THE WRIT OF PRELIMINARY MANDATORY INJUNCTION.

70

2. THE ISSUANCE OF THE WRIT OF PRELIMINARY MANDATORY


INJUNCTION SHOULD NOT PREEMPT THE RESOLUTION OF THE
PETITION ON THE ISSUE OF THE VALIDITY OF THE ORDER
GRANTING THE WRIT. (Rollo, pp. 17-18)
The real issue to be resolved in this case is whether or not the private respondents
have an easement of right of way over Howmart Road. Afterwhich it can be
determined whether or not the private respondents are entitled to the injunctive
relief.
The private respondents' claim that they have every right to use Howmart Road as
passageway to EDSA by reason of the fact that public respondents are bonafide
members of the QCIEA which has a standing oral contract of easement of right of
way with the petitioners. The contract is still subsisting even after its alleged
expiration in December, 1988 as evidenced by the two (2) letters signed by Maxima
Dionisio and Atty. Telesforo Poblete, counsel for the Dionisio Family addressed to the
QCIEA requesting for an increase in the compensation for said right of way. In such
a case, it is alleged that the petitioners did not have the right to put the barricade in
question in front of the private respondents' gate and stop them from using said
gate as passageway to Howmart Road.
There is no question that a right of way was granted in favor of the private
respondents over Howmart Road but the records disclose that such right of way
expired in December, 1988. The continued use of the easement enjoyed by
QCIEAincluding the private respondents is by the mere tolerance of the owners
pending the renegotiation of the terms and conditions of said right of way. This is
precisely shown by the two letters to the QCIEA requesting for an increase in
compensation for the use of Howmart Road. Absent an agreement of the parties as
to the consideration, among others, no contract of easement of right of way has
been validly entered into by the petitioners and QCIEA (see Robleza v. Court of
Appeals, (74 SCRA 354 [1989]). Thus, the private respondents' claim of an
easement of right of way over Howmart Road has no legal or factual basis.
Not having any right, the private respondents arenot entitled to the injunctive relief
granted by the lower court.
We have held in several cases that in order to be entitled to an injunctive writ, one
must show an unquestionable right over the premises and that such right has been
violated. (Rivera v. IAC, 169 SCRA 307 [1989]; Viray v. CA, 191 SCRA 308 [1990];
Buayan Cattle Co. Inc. v. Quintillan, 128 SCRA 276 [1984])
The party applying for preliminary injunction must show that (a) the invasion of the
right sought to be protected is material and substantial; (b) the right of complainant
is clear and unmistakable; and (c) there is an urgent and paramount necessity for

71

the writ to prevent serious damage. (Director of Forest Administration v. Fernandez,


192 SCRA 121 [1990]; Phil. Virginia Tobacco Administration v. Delos Angeles, 164
SCRA 543 [1988])
In the case at bar, the private respondents have not shown that there is an urgent
and paramount necessity for the issuance of the writ.
The records show that there are two (2) gates through which the private
respondents may pass to have direct access to EDSA: (1) the northern gate which
opens directly to EDSA; and (2) the southern gate along Howmart Road. The records
also disclose that the petitioners and the other lot owners previously prohibited and
prevented members of QCIEA from opening new gates. The claim that they were
forced to open a new gate by reason of the subdivision of Lot 272 where a wall was
constructed between these 2 lots is untenable. The private respondents can not
assert a right of way when by their own or voluntary act, they themselves have
caused the isolation of their property from the access road. Article 649 of Civil Code
justifies petitioners' claim, to wit:
Art. 649. The owner, or any person who by virtue of a real right may
cultivate or use any immovable, which is surrounded by other
immovables pertaining to other persons and without adequate outlet to
a public highway, is entitled to demand a right of way through the
neigboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its use may
be continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the
cultivation of the estate surrounded by others and for the gathering of its
crops through the servient estate without a permanent way, the
indemnity shall consist in the payment of the damage caused by such
encumbrance.
This easement is not compulsory if the isolation of the immovable is due
to the proprietor's own acts. (564a) (Emphasis supplied)
The construction of a wall between the 2 lots leaving only a small passageway
between them is an act imputable to the private respondents which precludes them
from asserting a right of way. The opening of the new gate would definitely be very
convenient to the private respondents but mere convenience is not enough to serve
as basis for the assertion of a right of way. (see Ramos, Sr. v. Gatchalian Realty, Inc.,
154 SCRA 703 [1987])

72

It was therefore inaccurate for the lower court to state that the private respondents
have shown a clear right to justify the issuance of the writ of preliminary injunction
when the facts and circumstances of the case do not warrant it. In such a
case, certiorari will lie to correct the abuse of discretion committed by the lower
court. (Maguan v. Court of Appeals, 146 SCRA 107 [1986]). Such task was
incumbent upon the Court of Appeals when the petitioners filed their petition
for certiorari before it questioning the propriety of the Order of the lower court. The
respondent Court, however, dismissed the petition on the ground that the issue was
already moot and academic upon the petitioners' compliance with the Order of the
respondent Judge.
The fact that the barricade constructed by the petitioners was already removed
upon the issuance of the questioned preliminary injunction does not make the
petition moot and academic as ruled by the Court of Appeals. The granting of the
writ and the subsequent compliance should not preempt the determination of the
issue brought before it. The validity of the Order was precisely the subject of the
petition for certiorari. As aptly explained in the case of Anglo-Fil Trading Corporation
v. Lazaro, 124 SCRA 494 [1983]:
xxx xxx xxx
The petitioners' contention that the lifting of the restraining order had
rendered moot and academic the injunction case in the trial court is
likewise untenable. A restraining order is dstinguished from an injunction
in that it is intended as a restraint on the defendant until the propriety of
granting an injunction pendente lite can be determined, and it goes no
further than to preserve the status quo until such determination.
Therefore, the grant, denial, or lifting of a restraining order does not in
anyway pre-empt the court's power to decide the issue in the main
action which in the case at bar, is the injunction suit. In fact, the records
will show that the trial court proceeded with the main suit for injunction
after the lifting of the restraining orders. (At p. 512)
The Court of Appeals has the power to recallor lift the writ of preliminary mandatory
injunction so issued if it finds that the party is not so entitled. However, in
dismissing the petition the court, in effect affirmed the lower court's finding that the
private respondents were indeed entitled to the writ of preliminary injunction. But
as we have earlier found, the private respondents are not entitled to the injunctive
relief considering that they have no clear right over Howmart Road.
WHEREFORE, the petition is hereby GRANTED. The questioned decision of the Court
of Appeals and the Order of the Regional Trial Court in Civil Case No. Q-89-3949 are
SET ASIDE. The writ of preliminary injunction is hereby LIFTED.

73

G.R. No. 77628

March 11, 1991

TOMAS ENCARNACION, petitioner,


vs.
THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE
LATE EUSEBIO DE SAGUN and THE HEIRS OF THE LATE ANICETA MAGSINO
VIUDA DE SAGUN,* respondents.
Presented for resolution in the instant petition for review is the not-so-usual
question of whether or not petitioner is entitled to a widening of an already existing
easement of right-of-way. Both the trial court and the Appellate Court ruled that
petitioner is not so entitled, hence the recourse to this Court. We reverse.
The facts are undisputed.
Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta
Magsino Viuda de Sagun are the owners of two adjacent estates situated in Buco,
Talisay, Batangas. ** Petitioner owns the dominant estate which has an area of
2,590 square meters and bounded on the North by Eusebio de Sagun and Mamerto
Magsino, on the south by Taal Lake, on the East by Felino Matienzo and on the West
by Pedro Matienzo. Private respondents co-own the 405-square-meter servient
estate which is bounded on the North by the National Highway (Laurel-Talisay
Highway), on the South by Tomas Encarnacion, on the East by Mamerto Magsino
and on the West by Felipe de Sagun. In other words, the servient estate stands
between the dominant estate and the national road.
Prior to 1960, when the servient estate was not yet enclosed with a concrete fence,
persons going to the national highway just crossed the servient estate at no
particular point. However, in 1960 when private respondents constructed a fence
around the servient estate, a roadpath measuring 25 meters long and about a
meter widewas constituted to provide access to the highway. One-half meter width
of the path was taken from the servient estate and the other one-half meter portion
was taken from another lot owned by Mamerto Magsino. No compensation was
asked and non was given for the portions constituting the pathway. 1
It was also about that time that petitioner started his plant nursery business on his
land where he also had his abode. He would use said pathway as passage to the
highway for his family and for his customers.
Petitioner's plant nursery business through sheer hard work flourished and with
that, it became more and more difficult for petitioner to haul the plants and garden
soil to and from the nursery and the highway with the use of pushcarts. In January,
1984, petitioner was able to buy an owner-type jeep which he could use for
transporting his plants. However, that jeep could not pass through the roadpath and
so he approached the servient estate owners (Aniceta Vda. de Sagun and Elena

74

Romero Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2)
meters of their property to be added to the existing pathway so as to allow passage
for his jeepney. To his utter consternation, his request was turned down by the two
widows and further attempts at negotiation proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas,
Branch 6 (Tanauan) to seek the issuance of a writ of easement of a right of way over
an additional width of at least two (2) meters over the De Saguns' 405-squaremeter parcel of land. 2
During the trial, the attention of the lower court was called to the existence of
another exit to the highway, only eighty (80) meters away from the dominant
estate. On December 2, 1985, the lower court rendered judgment dismissing
petitioner's complaint. It ruled:
It is clear, therefore, that plaintiff at present has two outlets to the highway:
one, through the defendants' land on a one meter wide passageway, which is
bounded on both sides by concrete walls and second, through the dried river
bed eighty meters away. The plaintiff has an adequate outlet to the highway
through the dried river bed where his jeep could pass.
The reasons given for his claim that the one-meter passageway through
defendants' land be widened to two and one-half meters to allow the passage
of his jeep, destroying in the process one of the concrete fences and
decreasing defendants' already small parcel to only about 332.5 square
meters, just because it is nearer to the highway by 25 meters compared to the
second access of 80 meters or a difference of only 65 meters and that
passage through defendants' land is more convenient for his (plaintiffs)
business and family use are not among the conditions specified by Article 649
of the Civil Code to entitle the plaintiff to a right of way for the passage of his
jeep through defendant's land. 3
On appeal, the Court of Appeals affirmed the decision of the trial court on January
28, 1987 and rejected petitioner's claim for an additional easement.
In sustaining the trial court, the Court of Appeals opined that the necessity
interposed by petitioner was not compelling enough to justify interference with the
property rights of private respondents. The Appellate Court took into consideration
the presence of a dried river bed only eighty (80) meters away from the dominant
estate and conjectured that petitioner might have actually driven his jeep through
the river bed in order to get to the highway, and that the only reason why he
wanted a wider easement through the De Sagun's estate was that it was more
convenient for his business and family needs.

75

After evaluating the evidence presented in the case, the Court finds that petitioner
has sufficiently established his claim for an additional easement of right of way,
contrary to the conclusions of the courts a quo.
While there is a dried river bed less than 100 meters from the dominant tenement,
that access is grossly inadequate.1wphi1 Generally, the right of way may be
demanded: (1) when there is absolutely no access to a public highway, and (2)
when, even if there is one, it is difficult or dangerous to use or is grossly insufficient.
In the present case, the river bed route is traversed by a semi-concrete bridge and
there is no ingress nor egress from the highway. For the jeep to reach the level of
the highway, it must literally jump four (4) to five (5) meters up. Moreover, during
the rainy season, the river bed is impassable due to the floods. Thus, it can only be
used at certain times of the year. With the inherent disadvantages of the river bed
which make passage difficult, if not impossible, it is if there were no outlet at all.
Where a private property has no access to a public road, it has the right of
easement over adjacent servient estates as a matter of law. 4
With the non-availability of the dried river bed as an alternative route to the
highway, we transfer our attention to the existing pathway which straddles the
adjoining properties of the De Sagun heirs and Mamerto Magsino.
The courts below have taken against petitioner his candid admission in open court
that he needed a wider pathway for the convenience of his business and family.
(TSN, August 2, 1985, pp. 24-26). We cannot begrudge petitioner for wanting that
which is convenient. But certainly that should not detract from the more pressing
consideration that there is a real and compelling need for such servitude in his
favor.
Article 651 of the Civil Code provides that "(t)he width of the easement of right of
way shall be that which is sufficient for the needs of the dominant estate, and may
accordingly be changed from time to time." This is taken to mean that under the
law, it is the needs of the dominant property which ultimately determine the width
of the passage. And these needs may vary from time to time. When petitioner
started out as a plant nursery operator, he and his family could easily make do with
a few pushcarts to tow the plants to the national highway. But the business grew
and with it the need for the use of modern means of conveyance or transport.
Manual hauling of plants and garden soil and use of pushcarts have become
extremely cumbersome and physically taxing. To force petitioner to leave his
jeepney in the highway, exposed to the elements and to the risk of theft simply
because it could not pass through the improvised pathway, is sheer pigheadedness
on the part of the servient estate and can only be counter-productive for all the
people concerned. Petitioner should not be denied a passageway wide enough to

76

accomodate his jeepney since that is a reasonable and necessary aspect of the
plant nursery business.
We are well aware that an additional one and one-half (1 1/2) meters in the width of
the pathway will reduce the servient estate to only about 342.5 square meters. But
petitioner has expressed willingness to exchange an equivalent portion of his land
to compensate private respondents for their loss. Perhaps, it would be well for
respondents to take the offer of petitioner seriously. 5 But unless and until that
option is considered, the law decrees that petitioner must indemnify the owners of
the servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter
was taken to constitute the original path several years ago. Since the easement to
be established in favor of petitioner is of a continuous and permanent nature, the
indemnity shall consist of the value of the land occupied and the amount of the
damage caused to the servient estate pursuant to Article 649 of the Civil Code
which states in part:
Art. 649. The owner, or any person who by virtue of a real right may cultivate
or use any immovable, which is surrounded by other immovables pertaining to
other persons and without adequate outlet to a public highway, is entitled to
demand a right of way through the neighboring estates, after payment of the
proper indemnity.
Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a permanent
passage, the indemnity shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.
xxx

xxx

xxx

WHEREFORE, in conformity with the foregoing discussion, the appealed decision of


the Court of Appeals dated January 28, 1987 is REVERSED and SET ASIDE. Petitioner
Tomas Encarnacion is hereby declared entitled to an additional easement of right of
way of twenty-five (25) meters long by one and one-half (1 1/2) meters wide over
the servient estate or a total area of 62.5 square meters after payment of the
proper indemnity.
SO ORDERED
G.R. No. L-63996 September 15, 1989
EUSEBIO FRANCISCO, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and CRESENCIO J. RAMOS, respondents.

77

Contested in the appellate proceedings at bar is the entitlement of Cresencio J.


Ramos, owner of Lot 860-A of the Malinta Estate, to an easement of right of way
through the land belonging to petitioner Eusebio Francisco, Lot 266 also of the same
Malinta Estate. The Court of First Instance of Bulacan declared Ramos to be so
entitled, by judgment rendered in Civil Case No. 66-V-73. That judgment was
affirmed by the Intermediate Appellate Court in CA-G.R. No. 60968-R, promulgated
on September 7, 1982. Francisco contends that both Courts are wrong, and asks
this Court to reverse them. About the basic facts there is no dispute.
Ramos' Lot 860-A used to be a part of Lot 860 of the Malinta Estate. Lot 860 was
owned by Cornelia and Frisca Dila, and had a frontage along Parada Road measuring
51.90 meters. Adjoining Lot 860 was Lot 226, owned by Eusebio Francisco, as
aforestated; it also had a frontage along Parada Road of 62.10 meters.
On December 3,1947, the co-owners of Lot 860 (Cornelia and Frisca Dila) executed
a deed by which an undivided one-third portion of the land was donated to a niece,
Epifania Dila, and another undivided one-third (1/3) portion to the children of a
deceased sister, Anacleta Dila, and the remaining portion, also an undivided third,
was declared to pertain exclusively to and would be retained by Cornelia Dila. 1 The
new co-owners then had Lot 860 subdivided and respectively allocated to
themselves as follows: 2
Lot 860-A (2,204 sq. m.), to Cornelia Dila;
Lot 860-B (5,291 sq. m.), to Epifana Dila (the niece);
Lot 860-C (3,086 sq. m.), to Cornelia Dila also; and
Lot 860-D (5,291 sq. m.), to the heirs of Anacleta Dila the other niece).
After this, the co-owners signed a partition agreement, 3 putting an end to their coownership and assuming exclusive ownership and possession of their respective
individual shares in accordance with the subdivision plan.
The former co-owners evidently overlooked the fact that, by reason of the
subdivision, Lot 860-B of Epifania Dila came to include the entire frontage of what
used to be Lot 860 along Parada Road, and thus effectively isolated from said road
the other lots, i.e., Lots 860- A and 860-C of Cornelia Dila, and Lot 860-D of the
children of Anacleta Dila. 4
Anyway, Cornelia sold Lot 860-A (2,204 sq. m. to the sisters Marcosa, Margarita, and
Irinea Eugenio. 5 And in 1971, the Eugenio Sisters sold the land to Cresencio J.
Ramos. 6

78

Some months later, in March, 1972, after having set up a piggery on his newly
acquired property, Ramos had his lawyer write to Eusebio Francisco owner, as
above mentioned, of the adjoining lot, Lot 266- to ask for a right of way through the
latter's land. Negotiations thereafter had however failed to bring about a
satisfactory arrangement. Francisco's proposal for an exchange of land at the rate
of one (1) square meter from him to three (3) square meters from Ramos, as was
supposedly the custom in the locality, was unacceptable to Ramos. 7
Later that year, 1972, Ramos succeeded, through the intercession of Councilor
Tongco of Valenzuela, in obtaining a three-meter wide passageway through Lot 860B of Epifania Dila . 8 Yet in August, 1973, he inexplicably put up a ten-foot high
concrete wall on his lot, this was in August, 1973, and thereby closed the very right
of way granted to him across Lot 860-B. It seems that what he wished was to have a
right of passage precisely through Francisco's land, considering this to be more
convenient to him, and he did not bother to keep quiet about his determination to
bring suit, if necessary, to get what he wanted. 9
Francisco learned of Ramos' intention and reacted by replacing the barbed-wire
fence on his lot along Parada Road with a stone wall, also in August, 1973. 10 Shortly
thereafter, Francisco was served with summons and a copy of the complaint in Civil
Case No. 66-V-73 of the Court of First Instance of Bulacan, instituted by Ramos, 11 as
well as a writ of preliminary mandatory injunction directing him to remove his stone
fence and keep his lot open for Ramos' use . 12
Francisco moved to dissolve the mandatory injunction. The Court appointed a
commissioner who conducted an ocular inspection of the lots in question, Lots 860A, 860-B and 266 and submitted a report of his findings. On the basis of the
commissioner's report, the Court issued another Order on September 10,
1973, 13 granting Ramos
. . . a temporary right of way over defendant's property hereby ordering
defendant to immediately remove all obstructions existing on points 2
and 4 of Annex A [of the Commissioner's Report] up to the second post
of the stone wall along points 2 and 3 in order that plaintiff may have a
free access to his property, upon plaintiffs filing a bond in the sum of
P2,000.00 without in any way determining by this grant the issue or
issues involved in this case, but merely as a measure of temporary relief
in the exercise of its power of equity.
Ramos posted the required bond, and Court issued the writ of preliminary
injunction. 14
After filing his answer with counterclaim, 15 Francisco once more moved for the
setting aside of the injunctive writs on the ground that they had been issued in

79

excess of the Court's jurisdiction since they did more than merely preserve the
status quo, and were based on the commissioner's report which was not only
inaccurate and inconclusive but had been adopted by the Court without hearing or
according him an opportunity to comment on or object to it. 16 By Order dated
November 19, 1973, the Court dissolved the injunctions, setting aside its Orders of
August 31, and September 10, 1973. 17
Six (6) days later, however, the Court handed down its verdict, adversely to
Francisco. The dispositive part thereof reads as follows:
In view of the foregoing premises: (1) the road right of way prayed for by
plaintiff over defendant's land, Exhibit 'A- l' is hereby granted, plaintiff
shall pay defendant the amount of Twenty Pesos (P20.00) per square
meter as indemnity or a total of Three Hundred Fifty Pesos (P350.00)
considering that the area of Exhibit 'A-l' is 17.5 square meters; (2) the
writ for a permanent mandatory injunction is likewise granted and
defendant is consequently directed to remove immediately the adobe
fence along the road right of way as fixed by this Court and to refrain
from obstructing said passage in any manner what ever, upon payment
by the plaintiff of the sum of Three Hundred Fifty Pesos to the defendant,
through this court; (3) upon the defendant's failure to do so, the Sheriff is
hereby directed to immediately remove said obstructions at defendant's
expenses; (4) let a copy of the decision be served upon the Register of
Deeds of Bulacan for proper annotation of the road right of way on
defendant's title, Transfer Certificate of Title over Lot 266 upon finality of
this decision.
Defendant's counterclaim for moral and exemplary damages and
attorney's fees are dismissed for lack of merit.
Francisco appealed to the Court of Appeals. 18 In its own decision promulgated on
September 7, 1982, the latter affirmed the Trial Court's judgment, 19 and later
denied Francisco's motion for reconsideration. 20 Francisco then appealed to this
Court. Francisco submits that 21
1) Ramos' complaint, containing no averment that demand for the
easement of right of 28 way had been made only after payment of
proper indemnity in accordance with Article 649 of the Civil Code, was
dismissible for failure to state a cause of action;
2) It was error to brush aside said statutory pre-condition in Article 649
as of "no consequence" or "absurd" in light of "the principle of
substantial performance" in Article 1234 of the Civil Code;

80

3) In view of the last paragraph of said Article 649, Francisco's Lot 266
may not be considered a servient estate subject to a compulsory
easement of right of way in favor of Ramos' Lot 860-A;
4) Courts are not empowered to establish judicial easements; and
5) Ramos was not entitled to a writ of mandatory injunction against
Francisco.
In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision, Inc., 22 this Court held that
a compulsory easement of way cannot be obtained without the presence of four (4)
requisites provided for in Articles 649 and 650 of the Civil Code, which the owner of
the dominant tenement must establish, to wit:
(1) That the dominant estate is surrounded by other immovables and has
no adequate outlet to a public highway (Art. 649, par. 1);
(2) After payment of proper indemnity (Art. 649, par. 1, end);
(3) That the isolation was not due to acts of the proprietor of the
dominant estate; and
(4) That the right of way claimed is at the point least prejudicial to the
servient estate; and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the
shortest. (Art. 650).
What clearly the appealed Decision overlooked or failed to accord the significance
due it is the fact already adverted to and which has never been disputed that
respondent Ramos, having already been granted access to the public road (Parada
Road) through the other adjoining Lot 860-B owned by Epifania Dila and this, at
the time he was negotiating with petitioner for the similar easement over the
latter's Lot 266 that he now claims inexplicably gave up that right of access by
walling off his property from the passageway thus established. The evidence, also
uncontradicted, is that said passageway was 2.76 meters wide, or wide enough to
accommodate a truck. The surveyor who at the instance of petitioner made a
survey of the premises on September 13, 1973, shortly after Ramos had filed his
complaint, verified the existence of said passageway from the presence of tire
marks found on the scene and indicated on the sketch plan he prepared the path
that it took from said respondent's Lot 860-A through Lot 860-B to Parada
Road. 23 That there was such a passageway was also confirmed by another witness,
Parada Barrio Captain Fausto Francisco, one of those who had earlier tried to bring
petitioner and respondent to an agreement about the proposed right of way through
the property of the former. This witness declared, as already stated, that after the
negotiations had been stalled by the failure of the parties to agree on the terms of a

81

proposed land exchange that would have given Ramos access to Parada Road, said
respondent had been able to obtain right of passage to the same public road over a
3-meter wide portion of Lot 860-B owned by Epifania Dila through the intercession
of Councilor Tongco of Valenzuela . 24 The presence of the tire marks indicating that
the portion of Lot 860-B where they were found had been used as a passageway
was also brought to the attention of the Trial Court at the ocular inspection
conducted, with the parties present or duly represented, on May 17, 1974. 25
The evidence is, therefore, persuasively to the effect that the private respondent
had been granted an adequate access to the public highway (Parada Road) through
the adjacent estate of Epifania Dila even as he was trying to negotiate a
satisfactory agreement with petitioner Francisco for another passageway through
the latter's property. If at the time he filed suit against the petitioner, such access
(through the property of Epifania Dila) could no longer be used, it was because he
himself had closed it off by erecting a stone wall on his lot at the point where the
passageway began for no reason to which the record can attest except to
demonstrate the isolation of his property alleged in his complaint. But the law
makes it amply clear that an owner cannot, as respondent has done, by his own act
isolate his property from a public highway and then claim an easement of way
through an adjacent estate. The third of the cited requisites: that the claimant of a
right of way has not himself procured the isolation of his property had not been met
indeed the respondent had actually brought about the contrary condition and
thereby vitiated his claim to such an easement. It will not do to assert that use of
the passageway through Lot 860-B was dffficult or inconvenient, the evidence being
to the contrary and that it was wide enough to be traversable by even a truck, and
also because it has been held that mere inconvenience attending the use of an
existing right of way does not justify a claim for a similar easement in an alternative
location.
... the petitioner contends that since the respondent company
constructed the concrete wall blocking his ingress and egress via the
Gatchalian Avenue, the nearest, most convenient and adequate road to
and from a public highway, he has been constrained to use as his
temporary' way the adjoining lots belonging to different persons. Said
way is allegedly 'bumpy and impassable especially during rainy seasons
because of flood waters, mud and tall 'talahib' grasses thereon.'
Moreover, according to the petitioner, the road right of way which the
private respondents referred to as the petitioner's alternative right of
way to Sucat Road is not an existing road but has remained a proposed
road as indicated in the subdivision plan of the Sabrina Rodriguez
Lombos Subdivision. 26
The petitioner's position is not impressed with merit. ... As borne out by
the records of the case, there is a road right of way provided by the

82

Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its


subdivision plan for the buyers of its lots. The fact that said lot is still
undeveloped and causes inconvenience to the petitioner when he uses it
to reach the public highway does not bring him within the ambit of the
legal requisite (of lack of adequate outlet). . . .To allow the petitioner
access to Sucat Road through Gatchalian Avenue inspite of a road right
of way provided by the petitioner's subdivision for its buyers simply
because Gatchalian Avenue allows petitioner a much greater ease in
going to and from the main thoroughfare is to completely ignore what
jurisprudence has consistently maintained through the years regarding
an easement of a right of way, that 'mere convenience for the dominant
estate is not enough to serve as its basis. To justify the imposition of this
servitude, there must be a real, not fictitious or artificial, necessity for
it. 27
On the authority of the Bacolod-Murcia ruling already referred to that all the four
requisites prescribed in Articles 649 and 650 must be established in order to
warrant the creation of a legal or compulsory easement of way, what has already
been stated as to the absence of one of those requisites is, without going any
further, already decisive of this appeal and impels a reversal of the appealed
Decision, which has clearly ignored or failed to correctly appreciate the import of
crucial facts dictating a disposition contrary to that made therein.
Whether the Court of Appeals also erred, as the petitioner would put it, in not
dismissing the action for want of averment or showing that proper indemnity had
been pre-paid for the right of way demanded is not now inquired into. While such a
proposition would appear to be supported by the Bacolod-Murcia ruling which in
part states that:
... The Central's original complaint only makes reference to a reasonable
compensation in paragraph 14 and no more. Assuming that such an
expression can be stretched into a manifestation that the Central is
willing to pay such compensation as may be ultimately fixed by the
Court, it still is not prepayment required by Article 649 of the Civil
Code;...
reservations may with reason be held about interpreting Article 649 to require
advance payment of indemnity as a condition precedent to the filing of an action for
a compulsory right of way. The appealed Decision of the Court of Appeals observes
that:
... It is absurd to say that even before the complaint is filed there must
be a prior payment of the indemnity for We do not know as yet how

83

much such indemnity would be. If both parties had previously agreed on
such indemnity, no suit would be essential. 28
There would, indeed, be some point in looking askance at a reading of the law which
would impute to it a strict requirement to pay "proper indemnity" in advance of a
suit the purpose of which, in addition to creating an easement, is precisely to fix the
amount of the indemnity to be paid therefor.
The question, however, is better left for consideration in a more appropriate setting
where a ruling would not constitute the mere dictum that it might be perceived to
be were it to be made here.
WHEREFORE, the appealed Decision of the Court of Appeals is REVERSED and SET
ASIDE. The complaint in Civil Case No. 66-V-73 of the Court of First Instance of
Bulacan is DISMISSED, the private respondent declared without right to the
easement sued for, and the writ of preliminary mandatory injunction issued in said
case is LIFTED. Costs against the private respondent.
SO ORDERED.
G.R. No. L-63996 September 15, 1989
EUSEBIO FRANCISCO, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and CRESENCIO J. RAMOS, respondents.
Contested in the appellate proceedings at bar is the entitlement of Cresencio J.
Ramos, owner of Lot 860-A of the Malinta Estate, to an easement of right of way
through the land belonging to petitioner Eusebio Francisco, Lot 266 also of the same
Malinta Estate. The Court of First Instance of Bulacan declared Ramos to be so
entitled, by judgment rendered in Civil Case No. 66-V-73. That judgment was
affirmed by the Intermediate Appellate Court in CA-G.R. No. 60968-R, promulgated
on September 7, 1982. Francisco contends that both Courts are wrong, and asks
this Court to reverse them. About the basic facts there is no dispute.
Ramos' Lot 860-A used to be a part of Lot 860 of the Malinta Estate. Lot 860 was
owned by Cornelia and Frisca Dila, and had a frontage along Parada Road measuring
51.90 meters. Adjoining Lot 860 was Lot 226, owned by Eusebio Francisco, as
aforestated; it also had a frontage along Parada Road of 62.10 meters.
On December 3,1947, the co-owners of Lot 860 (Cornelia and Frisca Dila) executed
a deed by which an undivided one-third portion of the land was donated to a niece,
Epifania Dila, and another undivided one-third (1/3) portion to the children of a
deceased sister, Anacleta Dila, and the remaining portion, also an undivided third,
was declared to pertain exclusively to and would be retained by Cornelia Dila. 1 The

84

new co-owners then had Lot 860 subdivided and respectively allocated to
themselves as follows: 2
Lot 860-A (2,204 sq. m.), to Cornelia Dila;
Lot 860-B (5,291 sq. m.), to Epifana Dila (the niece);
Lot 860-C (3,086 sq. m.), to Cornelia Dila also; and
Lot 860-D (5,291 sq. m.), to the heirs of Anacleta Dila the other niece).
After this, the co-owners signed a partition agreement, 3 putting an end to their coownership and assuming exclusive ownership and possession of their respective
individual shares in accordance with the subdivision plan.
The former co-owners evidently overlooked the fact that, by reason of the
subdivision, Lot 860-B of Epifania Dila came to include the entire frontage of what
used to be Lot 860 along Parada Road, and thus effectively isolated from said road
the other lots, i.e., Lots 860- A and 860-C of Cornelia Dila, and Lot 860-D of the
children of Anacleta Dila. 4
Anyway, Cornelia sold Lot 860-A (2,204 sq. m. to the sisters Marcosa, Margarita, and
Irinea Eugenio. 5 And in 1971, the Eugenio Sisters sold the land to Cresencio J.
Ramos. 6
Some months later, in March, 1972, after having set up a piggery on his newly
acquired property, Ramos had his lawyer write to Eusebio Francisco owner, as
above mentioned, of the adjoining lot, Lot 266- to ask for a right of way through the
latter's land. Negotiations thereafter had however failed to bring about a
satisfactory arrangement. Francisco's proposal for an exchange of land at the rate
of one (1) square meter from him to three (3) square meters from Ramos, as was
supposedly the custom in the locality, was unacceptable to Ramos. 7
Later that year, 1972, Ramos succeeded, through the intercession of Councilor
Tongco of Valenzuela, in obtaining a three-meter wide passageway through Lot 860B of Epifania Dila . 8 Yet in August, 1973, he inexplicably put up a ten-foot high
concrete wall on his lot, this was in August, 1973, and thereby closed the very right
of way granted to him across Lot 860-B. It seems that what he wished was to have a
right of passage precisely through Francisco's land, considering this to be more
convenient to him, and he did not bother to keep quiet about his determination to
bring suit, if necessary, to get what he wanted. 9
Francisco learned of Ramos' intention and reacted by replacing the barbed-wire
fence on his lot along Parada Road with a stone wall, also in August, 1973. 10 Shortly
thereafter, Francisco was served with summons and a copy of the complaint in Civil

85

Case No. 66-V-73 of the Court of First Instance of Bulacan, instituted by Ramos, 11 as
well as a writ of preliminary mandatory injunction directing him to remove his stone
fence and keep his lot open for Ramos' use . 12
Francisco moved to dissolve the mandatory injunction. The Court appointed a
commissioner who conducted an ocular inspection of the lots in question, Lots 860A, 860-B and 266 and submitted a report of his findings. On the basis of the
commissioner's report, the Court issued another Order on September 10,
1973, 13 granting Ramos
. . . a temporary right of way over defendant's property hereby ordering
defendant to immediately remove all obstructions existing on points 2
and 4 of Annex A [of the Commissioner's Report] up to the second post
of the stone wall along points 2 and 3 in order that plaintiff may have a
free access to his property, upon plaintiffs filing a bond in the sum of
P2,000.00 without in any way determining by this grant the issue or
issues involved in this case, but merely as a measure of temporary relief
in the exercise of its power of equity.
Ramos posted the required bond, and Court issued the writ of preliminary
injunction. 14
After filing his answer with counterclaim, 15 Francisco once more moved for the
setting aside of the injunctive writs on the ground that they had been issued in
excess of the Court's jurisdiction since they did more than merely preserve the
status quo, and were based on the commissioner's report which was not only
inaccurate and inconclusive but had been adopted by the Court without hearing or
according him an opportunity to comment on or object to it. 16 By Order dated
November 19, 1973, the Court dissolved the injunctions, setting aside its Orders of
August 31, and September 10, 1973. 17
Six (6) days later, however, the Court handed down its verdict, adversely to
Francisco. The dispositive part thereof reads as follows:
In view of the foregoing premises: (1) the road right of way prayed for by
plaintiff over defendant's land, Exhibit 'A- l' is hereby granted, plaintiff
shall pay defendant the amount of Twenty Pesos (P20.00) per square
meter as indemnity or a total of Three Hundred Fifty Pesos (P350.00)
considering that the area of Exhibit 'A-l' is 17.5 square meters; (2) the
writ for a permanent mandatory injunction is likewise granted and
defendant is consequently directed to remove immediately the adobe
fence along the road right of way as fixed by this Court and to refrain
from obstructing said passage in any manner what ever, upon payment
by the plaintiff of the sum of Three Hundred Fifty Pesos to the defendant,

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through this court; (3) upon the defendant's failure to do so, the Sheriff is
hereby directed to immediately remove said obstructions at defendant's
expenses; (4) let a copy of the decision be served upon the Register of
Deeds of Bulacan for proper annotation of the road right of way on
defendant's title, Transfer Certificate of Title over Lot 266 upon finality of
this decision.
Defendant's counterclaim for moral and exemplary damages and
attorney's fees are dismissed for lack of merit.
Francisco appealed to the Court of Appeals. 18 In its own decision promulgated on
September 7, 1982, the latter affirmed the Trial Court's judgment, 19 and later
denied Francisco's motion for reconsideration. 20 Francisco then appealed to this
Court. Francisco submits that 21
1) Ramos' complaint, containing no averment that demand for the
easement of right of 28 way had been made only after payment of
proper indemnity in accordance with Article 649 of the Civil Code, was
dismissible for failure to state a cause of action;
2) It was error to brush aside said statutory pre-condition in Article 649
as of "no consequence" or "absurd" in light of "the principle of
substantial performance" in Article 1234 of the Civil Code;
3) In view of the last paragraph of said Article 649, Francisco's Lot 266
may not be considered a servient estate subject to a compulsory
easement of right of way in favor of Ramos' Lot 860-A;
4) Courts are not empowered to establish judicial easements; and
5) Ramos was not entitled to a writ of mandatory injunction against
Francisco.
In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision, Inc., 22 this Court held that
a compulsory easement of way cannot be obtained without the presence of four (4)
requisites provided for in Articles 649 and 650 of the Civil Code, which the owner of
the dominant tenement must establish, to wit:
(1) That the dominant estate is surrounded by other immovables and has
no adequate outlet to a public highway (Art. 649, par. 1);
(2) After payment of proper indemnity (Art. 649, par. 1, end);
(3) That the isolation was not due to acts of the proprietor of the
dominant estate; and

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(4) That the right of way claimed is at the point least prejudicial to the
servient estate; and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the
shortest. (Art. 650).
What clearly the appealed Decision overlooked or failed to accord the significance
due it is the fact already adverted to and which has never been disputed that
respondent Ramos, having already been granted access to the public road (Parada
Road) through the other adjoining Lot 860-B owned by Epifania Dila and this, at
the time he was negotiating with petitioner for the similar easement over the
latter's Lot 266 that he now claims inexplicably gave up that right of access by
walling off his property from the passageway thus established. The evidence, also
uncontradicted, is that said passageway was 2.76 meters wide, or wide enough to
accommodate a truck. The surveyor who at the instance of petitioner made a
survey of the premises on September 13, 1973, shortly after Ramos had filed his
complaint, verified the existence of said passageway from the presence of tire
marks found on the scene and indicated on the sketch plan he prepared the path
that it took from said respondent's Lot 860-A through Lot 860-B to Parada
Road. 23 That there was such a passageway was also confirmed by another witness,
Parada Barrio Captain Fausto Francisco, one of those who had earlier tried to bring
petitioner and respondent to an agreement about the proposed right of way through
the property of the former. This witness declared, as already stated, that after the
negotiations had been stalled by the failure of the parties to agree on the terms of a
proposed land exchange that would have given Ramos access to Parada Road, said
respondent had been able to obtain right of passage to the same public road over a
3-meter wide portion of Lot 860-B owned by Epifania Dila through the intercession
of Councilor Tongco of Valenzuela . 24 The presence of the tire marks indicating that
the portion of Lot 860-B where they were found had been used as a passageway
was also brought to the attention of the Trial Court at the ocular inspection
conducted, with the parties present or duly represented, on May 17, 1974. 25
The evidence is, therefore, persuasively to the effect that the private respondent
had been granted an adequate access to the public highway (Parada Road) through
the adjacent estate of Epifania Dila even as he was trying to negotiate a
satisfactory agreement with petitioner Francisco for another passageway through
the latter's property. If at the time he filed suit against the petitioner, such access
(through the property of Epifania Dila) could no longer be used, it was because he
himself had closed it off by erecting a stone wall on his lot at the point where the
passageway began for no reason to which the record can attest except to
demonstrate the isolation of his property alleged in his complaint. But the law
makes it amply clear that an owner cannot, as respondent has done, by his own act
isolate his property from a public highway and then claim an easement of way
through an adjacent estate. The third of the cited requisites: that the claimant of a
right of way has not himself procured the isolation of his property had not been met

88

indeed the respondent had actually brought about the contrary condition and
thereby vitiated his claim to such an easement. It will not do to assert that use of
the passageway through Lot 860-B was dffficult or inconvenient, the evidence being
to the contrary and that it was wide enough to be traversable by even a truck, and
also because it has been held that mere inconvenience attending the use of an
existing right of way does not justify a claim for a similar easement in an alternative
location.
... the petitioner contends that since the respondent company
constructed the concrete wall blocking his ingress and egress via the
Gatchalian Avenue, the nearest, most convenient and adequate road to
and from a public highway, he has been constrained to use as his
temporary' way the adjoining lots belonging to different persons. Said
way is allegedly 'bumpy and impassable especially during rainy seasons
because of flood waters, mud and tall 'talahib' grasses thereon.'
Moreover, according to the petitioner, the road right of way which the
private respondents referred to as the petitioner's alternative right of
way to Sucat Road is not an existing road but has remained a proposed
road as indicated in the subdivision plan of the Sabrina Rodriguez
Lombos Subdivision. 26
The petitioner's position is not impressed with merit. ... As borne out by
the records of the case, there is a road right of way provided by the
Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its
subdivision plan for the buyers of its lots. The fact that said lot is still
undeveloped and causes inconvenience to the petitioner when he uses it
to reach the public highway does not bring him within the ambit of the
legal requisite (of lack of adequate outlet). . . .To allow the petitioner
access to Sucat Road through Gatchalian Avenue inspite of a road right
of way provided by the petitioner's subdivision for its buyers simply
because Gatchalian Avenue allows petitioner a much greater ease in
going to and from the main thoroughfare is to completely ignore what
jurisprudence has consistently maintained through the years regarding
an easement of a right of way, that 'mere convenience for the dominant
estate is not enough to serve as its basis. To justify the imposition of this
servitude, there must be a real, not fictitious or artificial, necessity for
it. 27
On the authority of the Bacolod-Murcia ruling already referred to that all the four
requisites prescribed in Articles 649 and 650 must be established in order to
warrant the creation of a legal or compulsory easement of way, what has already
been stated as to the absence of one of those requisites is, without going any
further, already decisive of this appeal and impels a reversal of the appealed

89

Decision, which has clearly ignored or failed to correctly appreciate the import of
crucial facts dictating a disposition contrary to that made therein.
Whether the Court of Appeals also erred, as the petitioner would put it, in not
dismissing the action for want of averment or showing that proper indemnity had
been pre-paid for the right of way demanded is not now inquired into. While such a
proposition would appear to be supported by the Bacolod-Murcia ruling which in
part states that:
... The Central's original complaint only makes reference to a reasonable
compensation in paragraph 14 and no more. Assuming that such an
expression can be stretched into a manifestation that the Central is
willing to pay such compensation as may be ultimately fixed by the
Court, it still is not prepayment required by Article 649 of the Civil
Code;...
reservations may with reason be held about interpreting Article 649 to require
advance payment of indemnity as a condition precedent to the filing of an action for
a compulsory right of way. The appealed Decision of the Court of Appeals observes
that:
... It is absurd to say that even before the complaint is filed there must
be a prior payment of the indemnity for We do not know as yet how
much such indemnity would be. If both parties had previously agreed on
such indemnity, no suit would be essential. 28
There would, indeed, be some point in looking askance at a reading of the law which
would impute to it a strict requirement to pay "proper indemnity" in advance of a
suit the purpose of which, in addition to creating an easement, is precisely to fix the
amount of the indemnity to be paid therefor.
The question, however, is better left for consideration in a more appropriate setting
where a ruling would not constitute the mere dictum that it might be perceived to
be were it to be made here.
WHEREFORE, the appealed Decision of the Court of Appeals is REVERSED and SET
ASIDE. The complaint in Civil Case No. 66-V-73 of the Court of First Instance of
Bulacan is DISMISSED, the private respondent declared without right to the
easement sued for, and the writ of preliminary mandatory injunction issued in said
case is LIFTED. Costs against the private respondent.
SO ORDERED.

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20. Quimen vs. Court of Appeals, 257 SCRA 163 (right of way)
G.R. No. 112331 May 29, 1996
ANASTACIA QUIMEN, petitioner,
vs.
COURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents.

IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will
cause least prejudice shall be chosen. However, if the two circumstances do not
concur in a single tenement, the way where damage will be least shall be used even
if not the shortest route. 1 This is so because least prejudice prevails over shortest
distance. This means that the court is not bound to establish what is the shortest
distance; a longer way may be adopted to avoid injury to the servient estate, such
as when there are constructions or walls which can be avoided by a round about
way, or to secure the interest of the dominant owner, such as when the shortest
distance would place the way on a dangerous decline.
Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together
with her brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of
property situated in Pandi, Bulacan. They agreed to subdivide the property equally
among themselves, as they did, with the shares of Anastacia, Sotero, Sulpicio and
Rufina abutting the municipal road.
The share of Anastacia, located at the extreme left, was designated as Lot No. 1448B-1. It is bounded on the right by the property of Sotero designated as Lot. No.
14413-B-2. Adjoining Sotero's property on the right are Lots Nos. 1448-B-3 and
1448-B-4 originally owned by Rufina and Sulpicio, respectively, but which were later
acquired by a certain Catalina Santos. Located directly behind the lots of Anastacia
and Sotero is the share of their brother Antonio designated as Lot No. 1448-B-C
which the latter divided into two (2) equal parts, now Lots Nos. 1448-B-6-A and
1448-B-6-B, each with an area of 92 square meters. Lot No. 1448-B-6-A is located
behind Anastacia's Lot No. 1448-B-1, while Lot No. 1448-B-6-B is behind the
property of Sotero, father of respondent Yolanda.
In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio
through her aunt Anastacia who was then acting as his administratrix. According to
Yolanda, when petitioner offered her the property for sale she was hesitant to buy
as it had no access to a public road. But Anastacia prevailed upon her to buy the lot
with the assurance that she would give her a right of way on her adjoining property
for P200.00 per square meter.
Thereafter, Yolanda constructed a house on the lot she bought using as her
passageway to the public highway a portion of Anastacia's property. But when

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Yolanda finally offered to pay for the use of the pathway Anastacia refused to accept
the payment. In fact she was thereafter barred by Anastacia from passing through
her property.2
In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448B-6-B, located directly behind the property of her parents who provided her a
pathway gratis et amore between their house, extending about nineteen (19)
meters from the lot of Yolanda behind the sari sari store of Sotero, and Anastacia's
perimeter fence. The store is made of strong materials and occupies the entire
frontage of the lot measuring four (4) meters wide and nine meters (9) long.
Although the pathway leads to the municipal road it is not adequate for ingress and
egress. The municipal road cannot be reached with facility because the store itself
obstructs the path so that one has to pass through the back entrance and the
facade of the store to reach the road.
On 29 December 1987 Yolanda filed an action with the proper court praying for a
right of way through Anastacia's property. An ocular inspection upon instruction of
the presiding judge was conducted by the branch clerk of court. The report was that
the proposed right of way was at the extreme right of Anastacia's property facing
the public highway, starting from the back of Sotero's sari-sari store and extending
inward by one (1) meter to her property and turning left for about five (5) meters to
avoid the store of Sotero in order to reach the municipal road 3 and the way was
unobstructed except for an avocado tree standing in the middle. 4
But on 5 September 1991 the trial court dismissed the complaint for lack of cause
of action; explaining that the right of way through Sotero's property was a straight
path and to allow a detour by cutting through Anastacia's property would no longer
make the path straight. Hence the trial court concluded that it was more practical to
extend the existing pathway to the public road by removing that portion of the store
blocking the path as that was the shortest route to the public road and the least
prejudicial to the parties concerned than passing through Anastacia's property. 5
On appeal by respondent Yolanda, the Court of Appeals reversed the lower court
and held that she was entitled to a right of way on petitioner's property and that the
way proposed by Yolanda would cause the least damage and detriment to the
servient estate. 6 The appellate court however did not award damages to private
respondent as petitioner did not act in bad faith in resisting the claim.
Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in
disregarding the agreement of the parties; (b) in considering petitioner's property
as a servient estate despite the fact that it does not abut or adjoin the property of
private respondent; and, (c) in holding that the one-meter by five-meter passage
way proposed by private respondent is the least prejudicial and the shortest
distance to the public road.

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Incidentally, petitioner denies having promised private respondent a right of way.


She claims that her agreement with private respondent was to provide the latter
with a right of way on the other lot of Antonio Quimen under her administration
when it was not yet sold to private respondent. Petitioner insists that passing
through the property of Yolanda's parents is more accessible to the public road than
to make a detour to her property and cut down the avocado tree standing thereon.
Petitioner further argues that when Yolanda purchased Lot No.
1448-B-6-B in 1986 the easement of right of way she provided her (petitioner)
was ipso jure extinguished as a result of the merger of ownership of the dominant
and the servient estates in one person so that there was no longer any compelling
reason to provide private respondent with a right of way as there are other
surrounding lots suitable for the purpose. Petitioner strongly maintains that the
proposed right of way is not the shortest access to the public road because of the
detour and that, moreover, she is likely to suffer the most damage as she derives a
net income of P600.00 per year from the sale of the fruits of her avocado tree, and
considering that an avocado has an average life span of seventy (70) years, she
expects a substantial earning from it. 7
But we find no cogent reason to disturb the ruling of respondent appellate court
granting a right of way to private respondent through petitioner's property. In fact,
as between petitioner Anastacia and respondent Yolanda their agreement has
already been rendered moot insofar as it concerns the determination of the
principal issue herein presented. The voluntary easement in favor of private
respondent, which petitioner now denies but which the court is inclined to believe,
has in fact become a legal easement or an easement by necessity constituted by
law.8
As defined, an easement is a real right on another's property, corporeal and
immovable, whereby the owner of the latter must refrain from doing or allowing
somebody else to do or something to be done on his property, for the benefit of
another person or tenement. 9 It is jus in re aliena, inseparable, indivisible and
perpetual, unless extinguished by causes provided by law. A right of way in
particular is a privilege constituted by covenant or granted by law 10 to a person or
class of persons to pass over another's property when his tenement is surrounded
by realties belonging to others without an adequate outlet to the public highway.
The owner of the dominant estate can demand a right of way through the servient
estate provided he indemnifies the owner thereof for the beneficial use of his
property. 11
The conditions sine quo non for a valid grant of an easement of right of way are: (a)
the dominant estate is surrounded by other immovables without an adequate outlet
to a public highway; (b) the dominant estate is willing to pay the proper indemnity;

93

(c) the isolation was not due to the acts of the dominant estate; and, (d) the right of
way being claimed is at a point least prejudicial to the servient estate. 12
A cursory examination of the complaint of respondent Yolanda for a right of
way 13 readily shows that
[E]ven before the purchase of the said parcels of land the plaintiff was
reluctant to purchase the same for they are enclosed with permanent
improvements like a concrete fence and store and have (sic) no egress
leading to the road but because of the assurance of the defendant that
plaintiff will be provided one (1) meter wide and five (5) meters long
right of way in the sum of P200.00 per square meter to be taken from
Anastacia's lot at the side of a concrete store until plaintiff reach(es) her
father's land, plaintiff was induced to buy the aforesaid parcels of land . .
. That the aforesaid right of way is the shortest, most convenient and the
least onerous leading to the road and being used by the plaintiff's
predecessors-in-interest from the very inception . . .
The evidence clearly shows that the property of private respondent is hemmed in
by the estates of other persons including that of petitioner; that she offered to pay
P200.00 per square meter for her right of way as agreed between her and
petitioner; that she did not cause the isolation of her property; that the right of way
is the least prejudicial to the servient estate. 14 These facts are confirmed in the
ocular inspection report of the clerk of court, more so that the trial court itself
declared that "[t]he said properties of Antonio Quimen which were purchased by
plaintiff Yolanda Quimen Oliveros were totally isolated from the public highway and
there appears an imperative need for an easement of right of way to the public
highway." 15
Petitioner finally insists that respondent court erroneously concluded that the right
of way proposed by private respondent is the least onerous to the parties. We
cannot agree. Article 650 of the New Civil Code explicitly states that the easement
of right of way shall be established at the point least prejudicial to the servient
estate and, insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest. The criterion of least
prejudice to the servient estate must prevail over the criterion of shortest distance
although this is a matter of judicial appreciation. While shortest distance may
ordinarily imply least prejudice, it is not always so as when there are permanent
structures obstructing the shortest distance; while on the other hand, the longest
distance may be free of obstructions and the easiest or most convenient to pass
through. In other words, where the easement may be established on any of several
tenements surrounding the dominant estate, the one where the way is shortest and
will cause the least damage should be chosen. However, as elsewhere stated, if
these two (2) circumstances do not concur in a single tenement, the way which will

94

cause the least damage should be used, even if it will not be the shortest.
the test.

16

This is

In the trial court, petitioner openly admitted


Q. You testified during your direct examination about this
plan, kindly go over this and please point to us in what
portion of this plan is the house or store of the father of the
(plaintiff )?
A. This one, sir (witness pointed a certain portion located near
the proposed right of way).
xxx xxx xxx
Q. Now, you will agree with me . . . that this portion is the
front portion of the lot owned by the father of the plaintiff and
which was (sic) occupied by a store made up of strong
materials?
A. It is not true, sir.
Q. What materials does (sic) this store of the father of the
plaintiff made of?
A. Hollow blocks and the side is made of wood, sir.
xxx xxx xxx
Q. Just before your brother disposed that 1/2 portion of the lot
in question, what right of way does (sic) he use in reaching
the public road, kindly point to this sketch that he is (sic)
using in reaching the public road?
A. In my property, sir.
Q. Now you will agree with me . . . the main reason why your
brother is (sic) using this property is because there was a
store located near this portion?
A. Yes, and according to the father of Yolanda there is no other
way than this, sir. 17
The trial court found that Yolanda's property was situated at the back of her father's
property and held that there existed an available space of about nineteen (19)
meters long which could conveniently serve as a right of way between the boundary

95

line and the house of Yolanda's father; that the vacant space ended at the left back
of Sotero's store which was made of strong materials; that this explained why
Yolanda requested a detour to the lot of Anastacia and cut an opening of one (1)
meter wide and five (5) meters long to serve as her right of way to the public
highway. But notwithstanding its factual observations, the trial court concluded,
although erroneously, that Yolanda was not entitled to a right of way on petitioner's
property since a detour through it would not make the line straight and would not
be the route shortest to the public highway.
In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared
that the proposed right of way of Yolanda, which is one (1) meter wide and five (5)
meters long at the extreme right of petitioner's property, will cause the least
prejudice and/or damage as compared to the suggested passage through the
property of Yolanda's father which would mean destroying the sari sari store made
of strong materials. Absent any showing that these findings and conclusion are
devoid of factual support in the records, or are so glaringly erroneous, this Court
accepts and adopts them. As between a right of way that would demolish a store of
strong materials to provide egress to a public highway, and another right of way
which although longer will only require an avocado tree to be cut down, the second
alternative should be preferred. After all, it is not the main function of this Court to
analyze or weigh the evidence presented all over again where the petition would
necessarily invite calibration of the whole evidence considering primarily the
credibility of witnesses, existence and relevancy of specific surrounding
circumstances, their relation to each other, and the probabilities of the
situation. 18 In sum, this Court finds that the decision of respondent appellate court
is thoroughly backed up by law and the evidence.
WHEREFORE, no reversible error having been committed by respondent Court of
Appeals, the petition is DENIED and the decision subject of review is AFFIRMED.
Costs against petitioner.
SO ORDERED.

21. Ramos vs. Gatchalian Realty, Inc.,154 SCRA 703 (right of way)
G.R. No. 75905 October 12, 1987
REMIGIO O. RAMOS, SR., petitioner,
vs.
GATCHALIAN REALTY, INC., EDUARDO ASPREC, and COURT OF
APPEALS, respondents.
In this petition for review on certiorari, the petitioner assails the decision of the
Court of Appeals dated August 29, 1986 which affirmed the November 14, 1984

96

order of the Regional Trial Court, Branch CXI at Pasay City dismissing the petitioner's
civil action for a right of way with prayer for preliminary injunction.
Petitioner Ramos is the owner of a house and lot containing an area of 901 square
meters covered by Transfer Certificate of Title No. 14927 situated at Barrio San
Dionisio, Paraaque, Metro Manila. The lot was acquired by the petitioner from
Science Rodriguez Lombos Subdivision In the subdivision survey plan of Lot 4133-G,
(LRC) PSD-172544, the lot is more particularly described as Lot 4133-G-11 (Exhibits
"1" and "1-A "). Two road lots abut petitioner's property namely lot 4133-G-12 with
an area of 2,160 square meters clearly appearing as a proposed road in the Lombos
subdivision plan and Lot 4135 of the Paraaque Cadastre now known as Pambansa
Road but more commonly referred to as Gatchalian Avenue.
Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135.
Respondent Gatchalian Realty was granted the road right of way and drainage
along Lot 4135 to service the Gatchalian and Asprec subdivision, by the respondent
Asprecs.
The records of this case disclose that on April 30, 1981, a complaint for an
easement of a right of way with preliminary mandatory injunction was filed by
Ramos against the private respondents. Among the allegations in the complaint are:
... that he (referring to the petitioner) constructed his house at 27
Gatchalian Avenue (also known as Pambansa Road), Paranaque, and has
since resided therein with his family from 1977 up to the present; that
during construction of the house, Gatchalian Realty, Inc. built a 7-8, feet
high concrete wall right infront of appellant's premises, blocking his
entrance/exit to Gatchalian Road, the nearest, most convenient and
adequate entrance/exit to the public road. or highway, formerly Sucat
Road but now known as Dr. A. Santos Avenue, Paraaque; that this house
and lot is only about 100 meters from Sucat, Road passing thru
Gatchalian Avenue; that prior to this, appellant and his counsel
addressed separate request/demand letters (Exh. A and Annex B) to
defendant company to allow him to exercise a right of way on the
subject premises; that in September 1977, a meeting/conference was
held between appellant and his counsel on one hand and Mr. Roberto
Gatchalian and counsel on the other, during which defendant
Corporation manifested its conformity to grant appellant the requested
right of way upon payment of proper indemnity, with the request that
appellant inform defendants Asprec of their aforesaid agreement; that
consequently, appellant wrote Mr. Cleto Asprec on September 16, 1977
(Exh. D); that with the construction of the 7-8 feet concrete wall
appellant and his family have been constrained to pass through the back
portion of their lot bounded by other lots belonging to different owners,

97

which is grassy and cogonal as temporary ingress/egress with great


inconvenience and hardship, and this becomes all the more pronounced
during the rainy season due to flood and mud (Exhs. B-1, B-1-A, B-2; B-2A, B-3, B-3-A, B-3-B and B-4); and, lastly, that the aforesaid concrete wall
is dangerously leaning towards appellant's premises posing great danger
or hazard. (Court of Appeals Decision, p. 3, Rollo, p. 39)
On May 20, 1981, the respondent corporation filed a motion to dismiss on grounds
of lack of cause of action and bar by prior judgment alleging that the complaint was
merely a reproduction of that filed on October 26, 1972 in Civil Case No. 5930-P
which was dismissed on October 30, 1980 for failure to prosecute within a
reasonable length of time. Respondents Asprec later joined the respondent
company in its motion to dismiss and adopted the grounds and arguments stated
therein.
On November 20, 1981, after the petitioner had filed his opposition to the above
motions, the lower court issued its order denying the motion to dismiss on the
ground that the order dismissing the earlier case was not an adjudication on the
merits.
On November 26, 1981, the petitioner filed an urgent exparte motion for the
issuance of a preliminary mandatory injunction as well as a preliminary prohibitory
injunction. On the same day, the lower court set the motion for hearing on
December 1, 1981, later reset to December 10, 1981, and ordered that:
In the meantime, pending determination of the application on the merits
and in order that the reliefs sought therein may not be rendered moot
and academic, the defendants and all persons acting upon their orders
are hereby temporarily enjoined from building, constructing and/or
erecting a wall, fence or any enclosure adjoining or abutting plaintiff's
premises and/or from restraining, preventing or prohibiting the plaintiff,
his family or persons residing in his premises as well as any person/s
who may have any dealing or business with them from using, passing
and/or traversing the said Gatchalian Avenue in going to or returning
from the plaintiff's premises and in going to or returning from Sucat Road
via Gatchalian Avenue, until further orders from this Court. (Order dated
November 26,1981, Records, p. 66).
On December 1, 1981, Gatchalian Realty filed its answer and averred, among
others, that:
xxx xxx xxx
Defendant Corporation has never entered into a verbal agreement with
plaintiff to grant the latter a road right of way;

98

xxx xxx xxx


The so-called Gatchalian Avenue or Palanyag Road is not a public road
but a private street established and constructed by the defendant
Corporation intended for the sole and exclusive use of its residents and
lot buyers of its subdivisions, as well as of the subdivisions owned and
operated by the various naked owners of the different portions
constituting the entire length and breadth of said street;
If plaintiff's property referred to in the complaint is Lot No. 4133-G-11,
(LRC) Psd-229001 (sic), then a grant of a right of way to plaintiff is not a
legal necessity, because such lot has an eating road right of way, more
particularly Lot 4133-G-12, towards Dr. Arcadio Santos Avenue(Sukat
Road);
xxx xxx xxx
The opening of Gatchalian Avenue to the property of plaintiff will unduly
cause great prejudice to defendant Corporation as it can no longer
effectively regulate the use of the said private road; ...
Assuming, though not admitting, that plaintiff may be granted a right of
way, still the reasonable compensation for such grant would be some
P800,000.00, as such portion of Gatchalian Avenue consists of some
2,000 square meters of prime and valuable property which could readily
command a market value of P400.00 per square meter; moreover,
plaintiff still has to shoulder his proportionate share of the expenses and
upkeep of such street and the real estate taxes imposed thereon.
(Answer of Gatchalian Realty, Inc., Records, pp. 81-82).
On December 2, 1981, respondent Asprec filed their answer which basically
contained the same averments as that of the realty company.
At the hearing of the petitioner's application for issuance of a writ of preliminary
injunction to compel the private respondents to remove the wall constructed right in
front of the petitioner's premises barring him access to Gatchalian Avenue, both
parties presented oral and documentary evidence to support their respective
positions. After the hearing, the lower court issued the following order:
Plaintiff is given fifteen (15) days to file a memorandum and the
defendant is given another fifteen days from receipt thereof to file a
reply, after which the case shall be deemed submitted for resolution. So
ordered. (TSN, December 10, 1981, p. 57)

99

After compliance by both parties with the above order, the lower court, on July 9,
1982, rendered a decision the dispositive part of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants ordering the latter to grant the former a right of
way through Palanyag Road to and from Don Arcadio Santos Avenue and
to and from his residence, upon payment by the plaintiff to the
defendants Asprecs the sum of P5,000 as indemnity therefor and under
the following terms and conditions to wit: (1) the easement created shall
be only in favor of the plaintiff, members of his family and person or
persons dealing with them; and (2) the opening to be created through
the concrete wall separating plaintiff's residence and Palanyag Road shall
only be three (3) meters wide and shall be provided by an iron gate by
the plaintiff all at the expense of the plaintiff. Without pronouncement as
to costs and damages. (Rollo, p. 30)
Thereafter, the respondent company filed a motion to set aside and/or reconsider
the lower court's decision for being premature since only the application for the writ
of injunction was heard and submitted for resolution and not the entire case.
Respondents Asprec, likewise, filed a motion for reconsideration mainly on the
ground that the lower court's grant of a right of way through Gatchalian Avenue in
petitioner's favor would be in derogation of the "Contract of Easement of Road
Right-of-Way and of Drainage" executed between them and Gatchalian Realty.
In his opposition to both motions, the petitioner argued that on the basis of the
transcript of steno graphic notes taken on December 10, 1981, it was clear that
both parties submitted the entire case for resolution inasmuch as the pieces of
evidence for the injunction and for the main case were the same and there was
nothing left to be presented. Thus, in effect, the petitioner contended that the lower
court's decision dated July 9, 1982 was an adjudication on the merits.
On July 8, 1983, the lower court under a new judge by virtue of the reorganization of
the judiciary, issued an order setting aside and vacating its previous decision dated
July 9, 1982 on the ground that the same was "rendered prematurely as the
defendants had not presented their evidence on the main evidence."
After the petitioner had rested his case, the respondent company filed a motion to
dismiss based on the insufficiency of the evidence adduced by the petitioner. An
opposition to said motion, was, thereafter, filed by the petitioner.
On November 14, 1984, the lower court, acting on the respondent company's
motion to dismiss, issued an order with the following tenor:
WHEREFORE, finding the motion to dismiss of defendant corporation
Gatchalian Realty, Inc. to be impressed with merit, the same is hereby

100

granted. For insufficiency of evidence, plaintiff's complaint is hereby


dismissed, without pronouncement as to costs. (Rollo, p. 34)
The Court of Appeals on August 29, 1986, found that the petitioner failed to
establish the existence of the pre-conditions in order that he could legally be
entitled to an easement of a right of way. It affirmed the lower court's order dated
November 14, 1984 in all respects, with costs against the petitioner.
Hence, this petition which presents the following assignment of errors:
I
PUBLIC RESPONDENT ERRED IN AFFIRMING I-IV TOTO THE ORDER OF DISMISSAL OF
THE TRIAL COURT IN ALL RESPECTS WITH COSTS AGAINST THE PETITIONER.
II
PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT PETITIONER
HAS NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE LAW AND IN FAILING TO
PROVE HIS RIGHT OF WAY THROUGH GATCHALIAN AVENUE OR PALANYAG ROAD
AGAINST THE RESPONDENTS HEREIN;
III
PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE TRIAL
COURT, AND NOT ADOPTING THE DECISION OF THE TRIAL COURT DATED JULY
9,1982 GRANTING TO PETITIONER A RIGHT OF WAY IN THE SUBJECT PREMISES.
(Rollo, pp. 14-15)
These assigned errors center on the issue of whether or not the petitioner has
successfully shown that all the requisites necessary for the grant of an easement of
a right of way in his favor are present.
An easement or servitude in an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner as defined in Article
613 of the Civil Code. It is established either by law, in which case it is called legal
or by the will of the parties, in which event it is a voluntary easement. (See Article
619, Civil Code of the Philippines; City of Manila vs. Entote, 57 SCRA 497, 503).
Since there is no agreement between the contending parties in this case granting a
right of way by one in favor of the other, the establishment of a voluntary easement
between the petitioner and the respondent company and/or the other private
respondents is ruled out. What is left to examine is whether or not the petitioner is
entitled to a legal or compulsory easement of a right of way.

101

In the case of Bacolod-Murcia Milling Company, Inc. vs. Capitol Subdivision Inc., et
al. (17 SCRA 731, 735-6), we held that:
... the Central had to rely strictly on its being entitled to a compulsory
servitude of right of way, under the Civil Code, and it could not claim any
such servitude without first establishing the pre-conditions for its grant
fixed by Articles 649 and 650 of the Civil Code of the Philippines:
(1) That it is surrounded by other immovables and has no
adequate outlet to a public highway (Art. 649, par. 1);
(2) After payment of proper indemnity (Art. 649, p. 1. end);
(3) That the isolation was not due to the Central's own acts
(Art. 649, last par.); and
(4) That the right of way claimed is "at the point least
prejudicial to the servient estate; and insofar as consistent
with this rule, where the distance from the dominant estate to
a public highway may be the shortest." (Art. 650).
By express provision of law, therefore, a compulsory right of way can not
be obtained unless the four requisites enumerated are first shown to
exist, and the burden of proof to show their existence was on the
Central. (See also Angela Estate, Inc. vs. Court of First Instance of Negros
Occidental 24 SCRA 500, 510)
On the first requisite, the petitioner contends that since the respondent company
constructed the concrete wall blocking his ingress and egress via the Gatchalian
Avenue, the "nearest, most convenient and adequate road" to and from a public
highway, he has been constrained to use as his "temporary" way the adjoining lots
belonging to different persons. Said way is allegedly "bumpy and impassable
especially during rainy seasons because of flood waters, mud and tall 'talahib'
grasses thereon." Moreover, according to the petitioner, the road right of way which
the private respondents referred to as the petitioner's alternative way to Sucat Road
is not an existing road but has remained a proposed road as indicated in the
subdivision plan of the Sobrina Rodriguez Lombos Subdivision.
The petitioner's position is not impressed with merit. We find no reason to disturb
the appellate court's finding of fact that the petitioner failed to prove the nonexistence of an adequate outlet to the Sucat Road except through the Gatchalian
Avenue. As borne out by the records of the case, there is a road right of way
provided by the Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12
in its subdivision plan for the buyers of its lots. The fact that said lot is still
undeveloped and causes inconvenience to the petitioner when he uses it to reach

102

the public highway does not bring him within the ambit of the legal requisite. We
agree with the appellate court's observation that the petitioner should have, first
and foremost, demanded from the Sabrina Rodriguez Lombos Subdivision the
improvement and maintenance of Lot 4133-G-12 as his road right of way because it
was from said subdivision that he acquired his lot and not either from the
Gatchalian Realty or the respondents Asprec. To allow the petitioner access to Sucat
Road through Gatchalian Avenue inspite of a road right of way provided by the
petitioner's subdivision for its buyers simply because Gatchalian Avenue allows
petitioner a much greater ease in going to and coming from the main thoroughfare
is to completely ignore what jurisprudence has consistently maintained through the
years regarding an easement of a right of way, that "mere convenience for the
dominant estate is not enough to serve as its basis. To justify the imposition of this
servitude, there must be a real, not a fictitious or artificial, necessity for it." (See
Tolentino, Civil Code of the Philippines, Vol. II, 2nd ed., 1972, p. 371)
Considering that the petitioner has failed to prove the existence of the first requisite
as aforestated, we find it unnecessary to discuss the rest of the preconditions for a
legal or compulsory right of way.
Once again, we apply the rule that findings of facts of the Court of Appeals are
binding on the Supreme Court and who not be overturned when supported by the
evidence on record save in the known exceptions such as gross misappreciation of
the evidence or misapprehension of facts. (See Community Savings and Loan
Association, Inc. vs. Court of Appeals, et al., G.R. No. 75786 promulgated on August
31, 1987; Regalario vs. Northwest Finance Corporation, 117 SCRA 45; Agton vs.
Court of Appeals, 113 SCRA 322).
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack of
merit. The questioned decision of the Court of Appeals is AFFIRMED.
SO ORDERED

G.R. No. L-57641 October 23, 1982(right of way)


ANTOLIN A. JARIOL, and PAULO S. RODRIGUEZ, In their capacities as Joint
Executors of the Estate of Humiliano Rodriguez, deceased, petitioners,
vs.
HON. COURT OF APPEALS, DOMINO JAGDON, in his Capacity as
Administrator of the Estate of Timoteo Rodriguez, deceased, CLEMENTE
RODRIGUEZ, TERESITA RODRIGUEZ, JULIA RODRIGUEZ, AMPARO
RODRIGUEZ, FAUSTA RODRIGUEZ, FRANCISCA VDA. DE RODRIGUEZ, INES
VDA. DE RODRIGUEZ, ADDULA RODRIGUEZ, DOLORES RODRIGUEZ and
JUANITA RODRIGUEZ, respondents.

103

This is a Petition for Review on certiorari of the Decision of the Court of Appeals in
its Case No. CA-G.R. No. 47020-R. The Petition was initially denied but upon a
second Motion for Reconsideration, the denial was reconsidered and it was given
due course.
We have found the facts to be as follows:
The deceased Quirino Rodriguez left four children: Humiliano, Timoteo, Jose, all
surnamed Rodriguez, and Ines Rodriguez de Pages.
On November 25, 1951, these heirs (Jose, then deceased, being represented by Ines
Vda. de Rodriguez and his adult children Abdulia, Dolores and Juanita), entered into
an extrajudicial partition to divide a parcel of land covered by Transfer Certificate of
Title No. RT-345 (T-193) of the Registry of Deeds, Cebu City, in the name of the
deceased. The deed was signed by two witnesses and notarized by Atty. Bernardo B.
Solotan. In this agreement, the property was divided into Lots "A" to "G" inclusive.
Lot "F" was adjudicated to Humiliano, and Lot "G" to Timoteo. Lot "G" has no egress
to the public roads.
On November 16, 1953, the original and copies of the Deed of Partition were
allegedly burned when the Quirino Rodriguez Building was razed by fire.
On May 22, 1956, Timoteo died and his son, Clemente Rodriguez, was appointed
executor of the estate, but was later replaced by Dominino Jagdon. They are two of
the private respondents herein.
After Humiliano's death in 1961 or 1962, petitioners Antolin A. Jariol, his son-in- law,
and Paulo S. Rodriguez, his son, were appointed executors of his estate.
On June 27, 1960, the Deed of Extra-Judicial Partition, with annotations and
additions on the left and right hand margins on page 4 and below the notarial
acknowledgment on page 5, was registered by Clemente Rodriguez, son of Timoteo,
in the Office of the Register of Deeds of Cebu. These annotations are reproduced in
full hereunder:
On the left hand margin of Page 4:
That on the approved subdivision plan with reference to the existing
actual private lane, Lots 802-B-2-B-2-C, 802-B-2-B-2-D, 802-B-2-B-2B
shall allot for the private lane three (3) meters each on their respective
sides and thence six (6) meters for lot 802-B-2-B-2-F following the
existing private lane,more particularly described at the bottom of page 5
of this document. (Emphasis supplied).
On the right hand margin of page 4:

104

That the contracting parties to the aforementioned extrajudicial partition


of the estate of the deceased, Quirino Rodriguez, hereby will and bind
themselves together with all the heirs, successors, and assigns to an the
provisions of the said document.
Below the acknowledgment of page 5:
That the owners of the following lots bind themselves for their mutual
benefit a perpetual easement of right of way described as follows:
Lot No. 802-B-2-B-2-G Three meters in width on the N. boundary.
Lot No. 802- B-2-B-2-D Three meters in width on the S. W. boundary.
Lot No. 802-B-2-B-2-C Three meters in width on the S. W. boundary.
Lot No. 802-B-2-B-2-B Three meters in width on the S. W. boundary.
Lot No. 802-B-2-B-2-F Six meters in width along the common boundary
line of the said lots with the said boundary line as the centerline. 1
It is said that
xxx xxx xxx
Of the seven (7) heirs who signed at the left hand margins of pages 1, 2,
3 and 5 and at the bottom of page 4, only five (5) initials are found with
the left hand margin insertion, with one "T.R. by C.L.R.", on the right
hand margin insertion only four (4) initials are found with one "T.R. by
C.L.R.", with the insertion of the bottom of page 5, only five (5) initials
are found with one "T.R. by C.L.R.", and
No signatures or initials of the two witnesses are found with any of the
insertions. 2
To be noted from the partition agreement is the fact that four heirs were to
contribute for the easement of right-of-way three (3) meters each, while Humiliano,
to whom Lot "F" appertained, was to give six meters.
Upon the contention that they had discovered the annotations only in 1964,
petitioners Antolin A. Jariol and Paulo S. Rodriguez, as joint executors of Humiliano's
estate, together with Ines Rodriguez de Pages, filed an action with the Court of First
Instance of Cebu on March 11, 1965 against respondents Dominino Jagdon as
administrator of the estate of Timoteo Rodriguez, Clemente Rodriguez, Dolores
Rodriguez, and Ines Vda. de Rodriguez, seeking to declare the nullity of the
annotations and insertions for having been surreptitiously and maliciously added

105

long after the execution of the principal document, and the cancellation of the
easements of right of way noted as encumbrances on the Certificates of Title issued
for the subdivided lots, particularly on "Lot F". It was alleged that the initials of
Humiliano and Ines Rodriguez de Pages affixed to the insertions were forged as
found by a handwriting expert; that not all the parties to the document had affixed
their initials to the insertions; that had the annotations been made at the time of
the execution of the document, Timoteo, who was still alive, should have signed the
annotations and not his son Clemente. The Complaint was amended three times to
include other heirs either as parties plaintiffs or parties defendants.
During the trial, petitioners presented the deposition of Ines Rodriguez de Pages,
then 81 years old, to the effect that the initials "I.R.P. " appearing in the insertions
were not her own.
Defendants-respondents, on the other hand, sustained the genuineness and due
execution of the annotations or additions and presented their own handwriting
expert. They averred that the agreement merely confirmed the existing right of way.
In its judgment rendered on August 22, 1968, the Trial Court concluded:
It is the conclusion of this Court therefore, that the initials of Ines
Rodriguez de Pages and Humiliano Rodriguez were forged and that
Clemente Rodriguez, in initialing the said insertions or additions without
any power of attorney from Timoteo Rodriguez does not bind the latter.
Hence, the alleged agreement creating the easement is of no force and
legal effect upon the heirs of Quirino Rodriguez.3
and declared the alterations or annotations complained of illegal and unlawful and
without any legal force and effect; ordered the Register of Deeds of Cebu to cancel
the easement of right of war noted as encumbrances on the title; and finding that
Clemente Rodriguez was responsible for the "falsification of the insertions" and the
"forgery" of the initials of Humiliano and Ines Rodriguez de Pages, required
defendants therein to pay actual, moral and exemplary damages as well as
attorney's fees for having "abetted" the "wrondoing" of Clemente.
After defendants-respondents' Motion for New Trial on the ground that the
deposition of Ines R. de Pages should not have been admitted in evidence, was
denied, they appealed to the Court of Appeals.
On October 15, 1980, the Court of Appealls 4 reversed the judgment appealed from
and dismissed the Third Amended Complaint as well as all counterclaims principally
on the ground that the right-of-way involved, which was a pre-existing one, even
prior to the extra judicial partition, sprang not from any voluntary concession but
from law.

106

Petitioners came to this Court on a Petition for Review on certiorari asserting that
respondent Appellate Court erred in skirting the issue on the genuineness and/or
binding effect of the forged alterations and insertions on the Deed of Extrajudicial
Partition; and in holding that a legal easement of right-of-way automatically
attaches to Lot "F" adjudicated to Humiliano, as the servient estate, which was not
an issue framed by the parties on appeal.
Petitioners take issue with the findings of respondent Court, which read in part:
Appellees also presented the deposition of Ines Rodriguez Pages, then aged 81, who
denied the genuineness of her initials to the questioned insertions. On the other
hand, appellants presented, inter alia, Atty. Bernardo Solatan, the lawyer who
prepared and notarized the extrajudicial partition document; and Mrs. Amparo R.
Casafranca, daughter of Humiliano Rodriguez and sister-in-law of appellee Jariol.
Atty. Solatan testified that the partition document was made under the direction of
Humiliano Rodriguez (tsn-Cavalida, Jan. 15, 1968, p. 237); that he prepared the
insertions at the instance of Humiliano Rodriguez (tsn-Cavalida, Jan. 15, 1968, pp.
240-242); and that the initials attributed to Humiliano Rodriguez and Ines Rodriguez
de Pages were authentic. Unrebutted was the testimony of Mrs. Casafranca that her
father Humiliano Rodriguez favored the maintaining of a road right of way (tsnJavier, May 9, 1968, p.4), and that this easement existed long before the execution
of the extrajudicial partition (tsn-Javier, May 9, 1968, p. 6).<re||
an1w> Appellee Jariol confirmed that he knows of only one easement, that is,
the one adjacent to his house (tsn-lyog, May 23, 1968, p. 35). We can only conclude
that the easement encumbrance inserted in the extra-judicial partition referred to
the existing right-of-way to which Humiliano Rodriguez was in favor of maintaining. 5
The Appellate Court then went on to state:
It cannot be denied that easements of right-of-way, being discontinuous,
cannot be acquired by prescription. However, a close perusal of the
subdivision plan of Lot 802-B-2-B-2 (Exh. D) reveals that Lot 802-B-2-B-2G with an area of 1422 square meters has no access to the public roads.
Corner no. 1 of this lot is almost 80 meters from Juan Luna street and
about 73 meters from Colon Street, the latter through Lot No. 802-B-2-B2-F. Under the partition agreement, Lot 802-B-2-B-2- G appertained to
Timoteo Rodriguez and his heirs. A legal easement of right-of- way can
therefore be established in favor of the heir to which this lot went.
Section 652 of the New Civil Code reads: "Whenever a piece of land
acquired by sale, exchange or partition is surrounded by other estates of
the vendor, exchanger, or co-owner, he shall be obliged to grant a rightof-way without indemnity." Section 651 explains: "The width of the
easement of right-of-way shall be that which is sufficient for the needs of
the dominant estate, and may accordingly be changed from time to

107

time." From the foregoing discussions, it would be immaterial to delve


into whether the insertions in the extrajudicial partition are illegal and
unauthorized. The right of the dominant estate to demand a right-of-way
springs not from any voluntary concession but from law. Appellees must
provide the owners of the dominant estate (Lot 802-B-2-B-2-G in this
case) egress to the public road. Had the partition been the other way
around, surely appellees would want a way out to the street. Justice and
equity demand that the status quo be maintained with regards to the
easement of right-of-way. 6 (Emphasis supplied)
Upon the foregoing exposition, we find that there is no substantial justification for
setting aside the aforequoted findings of respondent Court. In the first place, it did
not entirely disregard the matter of the questioned alterations and insertions. It
summarized the conflicting evidence thereon, as quoted hereinabove, observing
that "unrebutted was the testimony of Mrs. Casafranca that her father Humiliano
Rodriguez favored the maintaining of a right-of-way (tsn. Javier, May 9, 1968, p. 4)."
Mrs. Amparo R. Casafranca, who testified of her own knowledge, is the sister- in-law
and sister, respectively, of petitioners. If Humiliano himself favored the right-of-way,
petitioners, as his successors-in-interest, should be held bound by it. Respondent
Court added that the Notary Public, Atty. Bernardo Solotan, who authenticated the
document, also declared that the initials of Humiliano and Ines R. de Pages were
authentic, and that the insertions were made at the instance of Humiliano. We view
those declarations as amounting to findings of fact made by an Appellate Court,
which we consider as binding on us.
And as far as Timoteo is concerned, although the Trial Court found that he did not
initial the insertions, supra, there can be no denying that he would be the last to
object to the easement established for it also inured to the benefit of "Lot G". which
was allocated to him.
Secondly, the substantial question is whether or not "Lot G " is entitled to the
easement of right of way. In point of fact, a road right of way providing access to the
public road from "Lot G" existed long before the execution of the extrajudicial
partition even during the lifetime of Quirino Rodriguez. The Deed of Partition merely
sought to legalize and give stability to the access road already existing. That was
confirmed by the testimony of Mrs. Casafranca. That is also the position taken by
the other heirs who have been included as defendants respondents. As a matter of
law, considering that "Lot G " has no access to the public road, the easement is
explicitly provided for in Article 652 of the Civil Code 7 , its width being determined
by the needs of the servient estate pursuant to Article 651 8 of the same law.
Thirdly, the justice of the situation rather than the technicalities of the controversy
should govern herein. The questioned insertions and annotations refer to an
"existing actual private lane." The question of legality of those insertions is linked

108

with the need for its continued existence and the laws on easement cannot but
have a definite bearing. The annotations did not "create" a right-of-way, contrary to
the opinion of the Trial Court. They merely confirmed are existing one. Respondent
Appellate Tribunal did not "by judicial fiat" establish a "legal easement of right- ofway" on Lot "F". It found that it had been pre-existing and that under the
circumstances, the laws on easement were applicable. A chapel exits in the interior
constructed by the deceased Quirino Rodriguez, who was also responsible for giving
chapel-goers access thereto from the street. 9 The right-of-way exists for the mutual
benefit of most of the heirs of Quirino Rodriguez. As aptly stated by respondent
Court "justice and equity demand that thestatus quo be maintained with regards to
the easement of right of way."
With the conclusions arrived at, the Resolution, dated June 30, 1982, giving due
course to this Petition must be set aside and this Petition denied.
WHEREFORE, let this Petition for Review be, as it is, hereby denied for lack of merit.
G.R. No. L-33507 July 20, 1981(right of way)
FE P. VELASCO, represented by ALFREDO GONZALES, petitioner,
vs.
HON. VICENTE N. CUSI, JR. and THE CITY OF DAVAO, respondents.
Petitioner filed in the Court of First Instance of Davao an action against Davao City
to quiet title to her lot known as Lot 77-B-2, a portion of which she claims to having
been occupied illegally as part of Bolton Street, Davao City. On a motion to dismiss
filed by the defendant, on the ground that the complaint states no cause of action,
the Court, presided over by respondent Judge Hon. Vicente Cusi Jr., dismissed the
case. Hence, this petition for certiorari seeking a review of the Order of dismissal
dated July 11, 1970 (Annex D to tile Petition). 1
The dismissal being on the ground that the complaint does not state a cause of
action, the allegations of the complaint have to be closely examined, as the court a
quo did in its Order aforecited which quoted the material allegations of the
complaint as follows:
The action is to quiet title and damages. But the complaint does not
allege any cloud or doubt on the title, 'Transfer Certificate of Title No. T7000 of the Register of Deeds of the City of Davao, of the plaintiff to Lot
No. 77-B-2, subdivision plan Psd-22295. According to the complaint, ' . . .
when plaintiff bought the said lot 77-B-2 from the original owner in 1956,
the Bolton Street was already existing; that without ascertaining the
monuments along Bolton Street, she had her house constructed on her
said lot and built fence along said Bolton Street which she believed to be
the boundary between her lot and said street and in line with other

109

offences already existing when she bought said lot; 6. That plaintiff has
just discovered, after a relocation of the monuments of her lot, Lot No.
77-B-2, that the Bolton Street of the defendant has encroached at least
TWENTY-FIVE (25) SQUARE METERS with dimension of 2.5 meters by 10
meters, making her actual occupation of her lot 10 meters by 47.5
meters, as indicated in the plan Annex "A" hereon enclosed thereon by
red pencil lines; 7. That plaintiff has just discovered also that the width of
the Bolton Street is only NINE (9) METERS and since the defendant is
now asphalting the said Bolton Street, plaintiff has filed this complaint in
order to quiet her title to the said portion of 2.5 meters by 10 meters as
shown in the plan enclosed in red pencil oil Annex "A" hereon because
the continued occupation of said portion by the defendant has cast a
cloud of doubt on the title of the plaintiff over the portion of plaintiff's Lot
No. 77-B-2 now being occupied by Bolton Street, valued at four hundred
pesos per square meters.
After quoting the material allegations of the complaint as above set forth, the
court a quo analyzed them carefully and scrutinizingly, and came up with the
conclusion that the allegations of the complaint state no cause of action. Thus
The allegations in the complaint that the Bolton Street encroached on
the lot of the plaintiff and that the defendant had continuously occupied
the portion so encroached upon do not, contrary to the conclusion of the
plaintiff found in the complaint, cast ' . . a cloud of doubt on the title of
the plaintiff over said portion which would justify this action.
In her present petition, petitioner assigned as error of the court a quo the following:
1. THE LOWER COURT ERRED IN DECLARING THAT THE BOLTON STREET
AS AN EASEMENT MUST REMAIN A BURDEN ON LOT 77-B-2 (LOT IN
QUESTION) PURSUANT TO SECTION 39 OF ACT 496 ON THE GROUND
THAT IT IS SUBJECT TO EASEMENT OF PUBLIC HIGHWAY.
2. THE LOWER COURT ERRED IN DECLARING THAT THE PORTION OF THE
LAND OF PETITIONER ENCROACHED UPON BY THE RESPONDENT CITY OF
DAVAO'S BOLTON STREET DOES NOT CAST A CLOUD OF DOUBT IN THE
TITLE OF PETITIONER.
3. THE LOWER COURT ERRED IN DECLARING THAT ASSUMING THE FACTS
ALLEGED IN THE COMPLAINT TO BE TRUE, A JUDGMENT UPON THE SAME
IN ACCORDANCE WITH THE PRAYER COULD NOT BE RENDERED.
4. THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT FOR LACK
OF CAUSE OF ACTION.

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As alleged by petitioner, the lot in question, Lot No. 77-B-2, which she bought in
1956, was part of Lot No. 77-B, which was in turn originally a portion of Lot No. 77,
covered by O.C.T. No. 683, issued on July 21, 1911. For the lot she bought, she
received Transfer Certificate of Title No. T-7000.
In 1970, petitioner discovered that the Bolton Street of the City of Davao had
encroached upon her a lot of portion of 2.5 meters wide and 10 meters long, along
said Street, or an area of 25 Square meters. She also discovered that Bolton Street
was delimited to nine (9) meters wide, but the proposed width was 15 meters, and
in that same year 1970, the Bolton Street had already encroached on her lot, on the
northwestern part thereof, to the extent as above stated (par. 7, Complaint, Annex
A. to Petition).
From The allegations of the complaint as set forth above, as well as inhe questioned
Order quoted earlier, We agree with respondent judge that the complaint states no
cause of action upon which to render judgment in favor of petitioner, even
assuming S the said allegations to be true, indeed, in a motion to dismiss for lack of
cause of action, the allegations of the complaint must be hypothetically admitted. 2
It appears on the face of the complaint that Bolton Street has been where it is from
time immemorial. When the mother title of petitioner's Transfer Certificate of Title
No. T- 7000, which is O.C.T. No. 638, was issued in 1911, it was issued subject to the
provisions of Section 39 of Act 496 which reads:
Section 39. Every person receiving a certificate of title in pursuance of a
decree or registration, and every subsequent purchasers of registered
land who takes a certificate of title for value in good faith shall hold the
same free of all encumbrances, except those noted on said certificate,
and any of the following encumbrances which may be subsisting namely:
xxx xxx xxx
Third. Any public highway, way, private way, ... or any government
irrigation, canal, or lateral thereof ...
From the foregoing provision, Bolton Street which is a public highway, already
subsisting when O.C.T. No. 638 was issued, as this fact is apparent too from the face
of the complaint itself, is deemed to have attached as a legal encumbrance to the
lot originally registered lot No. 77, notwithstanding the lack of an annotation thereof
on O.C.T. No. 638. petitioner, therefore, cannot rely, as she almost entirely does for
the relief she seeks, on the aforequoted provision, which she had repeatedly cited
but without making mention, perhaps conveniently, of the exception as expressly
provided in the later part of the legal provision invoked (Sec. 39, Act 496).

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If from the undisputed fact Chat when Lot -77 was registered, Bolton Street had
already been a legal encumbrance on said lot, pursuant to Section 39 of Act 496,
contrary to petitioner's theory based on the same legal provision but o committing
the portion pertinent to the instant case, there can be no gainsaying the fact that
petitioner's lot, Lot No. 77-B-2, which admittedly was originally a part of Lot No. 77,
must have to remain subject to the same legal encumbrance of a public highway.
From her own allegations in her complaint, Bolton Street cannot be a discontinuous
easement as she claims it to be, which may not be acquired by prescription.
Nonetheless, whether the mode of acquisition of the easement that Bolton Street is,
would be only by virtue of title, as petitioner contends, this is not material or of any
consequence, in the present proceedings, once it indubitably appears as it does,
from the allegations of the complaint itself, that Bolton Street constituted an
easement of public highway on Lot No. 77, from which petitioner's lot was taken,
when the said bigger lot was original registered. It remained as such legal
encumbrance, as effectively as if it had been duly noted on the certificate of title,
by virtue of the clear and express provision of Section 39 of Act 496, it being
admitted that at the time of the registration of Lot 77, the public highway was
already in existence or subsisting. This fact erases whatever cause of action
petitioner may have to bring the complaint she filed in the court a quo for quieting
of title on a portion of the street which she claims to be part of her lot, free from
encumbrance of any kind. The Order complained of has only this legal postulate as
its basis. Nothing has been mentioned therein on the acquisition by the City of
Davao of the lot in question by prescription, and a discussion of this matter as is
found in petitioner's brief 3 would be entirely irrelevant.
WHEREFORE, no reversible error having been found in the Order complained of, the
same is hereby affirmed, and the instant petition, dismissed. Costs against
petitioner.
G.R. No. 125339 June 22, 1998
CRESENCIA CRISTOBAL, ROBERTO MAKIMKIM, DAMASO MAKIMKIM,
SPOUSES SALVADOR HERMALINO and PONCIANA MAKIMKIM, MILAGROS
MAKIMKIM, REMEDIOS MAKIMKIM, SPOUSES FRANCISCO ESTANISLAO and
FLORDELIZA MAKIMKIM, ERLINDA MAKIMKIM, JOSE MAKIMKIM and GINA
MAKIMKIM,petitioners,
vs.
COURT OF APPEALS, CESAR LEDESMA, INC., SPOUSES JESUS C. PACIONE
and LERMA B. PACIONE,respondents.
This petition for review seeks the reversal of the decision of respondent Court of
Appeals of 16 January 1996 in CA-G.R. CV Case No. 37273, "Cresencia Cristobal, et
al. v. Cesar Ledesma, Inc., et al.," 1 which affirmed in toto the decision of the RTC-Br.

112

81, Quezon City, 2 dismissing herein petitioners' complaint for easement of right of
way, and the Resolution of 14 June 1996 denying their motion for reconsideration.
Petitioners own a house and lot situated at No. 10 Visayas Avenue Extension,
Quezon City, where they have been residing from 1961 to the present. Respondent
Cesar Ledesma, Inc., on the other hand, is the owner of a subdivision at Barrio
Culiat along Visayas Avenue which once included the disputed residential lots, Lot 1
and Lot 2, with areas of 164 square meters and 52 square meters, respectively,
located adjacent to petitioners' property. Lots 1 and 2 were originally part of a
private road known as Road Lot 2 owned exclusively by Cesar Ledesma, Inc.
Petitioners were using Road Lot 2 in going to and from the nearest public road.
When Visayas Avenue became operational as a national road in 1979, Cesar
Ledesma, Inc., filed a petition before the RTC of Quezon City to be allowed to
convert Road Lot 2 into residential lots. 3 The petition was granted, hence, Road Lot
2 was converted into residential lots designated as lot 1 and lot 2. Subsequently,
Cesar Ledesma , Inc., sold both lots to Macario Pacione in whose favor transfer
Certificates of Title were correspondingly issued. In turn, Macario Pacione conveyed
the lots to his son and dauhter-in-law, respondent spouses Jesus and Lerma Pacione.
When the Pacione spouses, who intended to build a house on Lot 1, Visited the
property in 1987, they found out that the lot was occupied by a squatter named
Juanita Geronimo and a portion was being used a passageway by petitioners to and
from Visayas Avenue. Accordingly, the spouses complained about the intrusion into
their property to the Barangay Office. At the barangay conciliation proceeding,
petitioners offered to pay for the use of a portion of Lot 1 as passageway but the
Pacione spouses rejected the offer. When the parties failed to arrive at an amicable
settlement, the spouses started enclosing Lot 1 with a concrete fence.
Petitioners prostested the enclosure alleging that their property was bounded on all
sides by residential houses belonging to different owners and had no adequate
outlet and inlet to Visayas Avenue except through the property of the Paciones. As
their protests went unheeded, petitioners instituted an action for easement of right
of way with prayer for the issuance of a temporary restraining order (TRO).
On 3 June 1987 the trial court issued a TRO directing the Pacione spouses to cease
and desist from fencing the disputed property. The Paciones objected arguing that
petitioners were not entitled to a TRO since they showed no valid basis for its
issuance, and that petitioners had no cause of action against respondents because
there were actually two (2) accessible outlets and inlets a pathway right in front
of their gate leading towards an asphalted 5-meter road to the left, and across an
open space to the right adjacent to respondents' lot likewise leading to Visayas
Avenue.

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At the instance of the parties, the trial court ordered an ocular inspection of the
property. A Board of Commissioners was constituted for that purpose composed of
representatives chosen by the parties, with Deputy Sheriff Florencio D. Dela Cruz,
Jr., as representative of the court.
On 3 January 1990 Deputy Sheriff Dela Cruz, Jr., submitted his Report
the ocular inspection on the litigated lots

relative to

. . . there is another way from the Visayas Ave. to the plaintiffs' lot
existing at the time of the ocular inspection. Plaintiffs can use the street
originating from Visayas Avenue, identified as Ma. Elena St., which is
about 2.5 m. in width and about 150 m. in length up to an intersection,
meeting a private road, which is about 100 meters in length, that ends at
the lower portion of the right side of the adjacent vacant lot previously
identified, and at the back of a lot with concrete fence located at the
back of the plaintiffs' properly. From that point the plaintiff must enter
the adjacent vacant lot (entry to the said lot is still possible during ocular
inspection because the barbed wires were not properly placed) to reach
a gate at the side of the plaintiffs' lot, about 16 m. from the end of the
private road, allegedly used by the plaintiffs before the adjacent lot was
enclosed by barbed wires. According to Atty. Mendoza, counsel for the
defendants, that gate no longer exist(ed) at the time of the ocular
inspection.
As may be observed from the above report, only one outlet was indicated by Sheriff
Dela Cruz, Jr. The other outlet across an open space to the right referred to by the
Pacione spouses was not reflected thereon. Howecer, on the basis of the report as
well as the testimonial an documentary evidence of the parties, the trial court
dismissed the complaint holding that one essential requisite of a legal easement of
right of way was not proved,i.e., the absence of an alternative adequate way or
outlet to a public highway, in this case, Visayas Avenue. 5
Petitioners appealed to the Court of Appeals arguing that the trial court erred in
finding that they failed to sufficiently establish the essential fact that from their
property no adequate outlet or access to a highway existed; and, that the
conversion of the Road Lot into two (2) residential lots by Cesar Ledesma, Inc., was
violative of PD No. 957, hence illegal, and the titles issued as a consequence of the
conversion were null and void.
On 16 January 1996 the Court of Appeals rendered its assailed decision affirming
the findings of the trial court
The burden of proving the existence of the requisites of easement of
right of way lies on the owner of the dominant estate. In the case at bar,

114

plaintiff-appellants failed to prove that there is no adequate outlet from


their property to a public highway. Convenience of the dominant estate is
not a gauge for the grant of compulsory right of way. The true standard
for the grant of the legal right is "adequacy." Hence, when there is
already an existing adequate outlet from the dominant estate to a public
highway, as in this case, even if the outlet, for one reason or another, be
inconvenient, the need to open up another servitude is entirely
unjustified. To justify the imposition of a easement of right of way, there
must be real, not ficitious or artificial necessity for it. A right of way is
legally demandable, but the owner of the dominant estate is not at
liberty to impose one based on arbitrary choice. Art. 650 of the Civil
Code provides for the criteria in the establishment of such easement but
it has been settled that the criteria of "least prejudicial" prevails over
shortest distance. Each case must be weighed according to its individual
merits and judged according to the sound discreation of the court
(Costabella Corporation v. Court of Appeals, G.R. No. 80511, 193 SCRA
333 [1991]).
The second assigned error has no legal leg to stand on since plaintiffappellants cannot just introduce a new issue to an already settled one,
especially for the time on appeal.
Their motion for reconsideration having been denied, petitioners now come to us
with the following assignment of errors: First, the Court of Appeals erred in applying
the doctrine in Costabella, considering that in the instant case the four (4)
requisites that must be complied with by an owner of the dominant estate in order
to validly claim a compulsory right of way have been clearly established by
petitioners, contrary to the Decision appealed from, and that the facts in Costabella
are not the same as in the present case. Second, the Court of Appeals seriously
erred in holding that the question of legality or illegality of the conversion of Road
Lot 2 into two (2) residential lots by the Cesar Ledesma, Inc., is a new issue raised
for the first time on appeal, because such issue appeared in the complaint filed
before the trial court.
Quite noticeably, petitioners' first assigned error is essentially factual in nature, i.e.,
it merely assails the factual findings of both the Court of Appeals and the trial court.
Basic is the rule in this jurisdiction that only questions of law may be raised in a
petition for review under Rule 45 of the 1997 Rules of Civil Procedure. The
jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is
limited to reviewing errors of law, the findings of fact of the appellate court being
conclusive. 6 We have emphatically declared that it is not the function of this Court
to analyze or weigh such evidence all over again, its jurisdiction being limited to
reviewing errors of law that may have been committed by the lower court. 7

115

Petitioners insist that their petition raises a question of law, that is, the correctness
of the appellate court's ruling that one who has an existing passageway, however
inconvenient that passageway may be, is no longer entitled to an easement of right
of way.
We do not agree. Questions of law are those that do not call for any examination of
the probative value of the evidence presented by the parties. 8 In the instant case,
petitioners' assignment of errors would have this Court go over the facts because it
necessarily entails an examination of the evidence and its subsequent re-evaluation
to determine whether petitioners indeed have no sufficient outlet to the highway.
Petitioners next claim that the findings of the appellate court are based on
misapprehension of facts, which circumstance warrants a review of the appellate
court's decision. Yet, they failed to sufficiently demonstrate this allegation in their
pleadings. Absent a clear showing that the findings complained of are totally devoid
of support in the record, or that they are so glaringly erroneous as to constitute
serious abuse of discretion, such findings must stand.
At any rate, even assuming that the first assignment of error may be properly raised
before this Court, we find no reversible error in the assailed decision. To be entitled
to a compulsory easement of right of way, the preconditions provided under Arts.
649 and 650 of the Civil Code must be established. These are: (1) that the dominant
estate is surrounded by other immovables and has no adequate outlet to a public
highway; (2) that proper indemnity has been paid; (3) that the isolation was not due
to acts of the proprietor of the dominant estate; (4) that the right of way claimed is
at a point least prejudicial to the servient estate and, in so far as consistent with
this rule, where the distance from the dominant estate to a public highway may be
the shortest. 9 The burden of proving the existence of these prerequisites lies on the
owner of the dominant estate. 10
In the present case, the first element is clearly absent. As found by the trial court
and the Court of Appeals, an outlet already exist, which is a path walk located at the
left side of petitioners' property and which is connected to a private road about five
hundred (500) meters long. The private road, in turn, leads to Ma. Elena Street
which is about 2.5 meters wide and, finally, to Visayas Avenue. This outlet was
determined by the court a quo to be sufficient for the needs of the dominants
estate, hence petitioners have no cause to complain that they have no adequate
outlet to Visayas Avenue.
Further, no evidence was adduced by petitioners to prove that the easement they
seek to impose on private respondents' property is to be established at a point least
prejudicial to the servient estate. For emphasis, Lot 1 is only 164 square meters and
an improvident imposition of the easement on the lot may unjustly deprive private
respondents of the optimum use and enjoyment of their property, considering that

116

its already small area will be reduced further by the easement. Worse, it may even
render the property useless for the purpose for which private respondents
purchased the same.
It must also be stressed that, by its very nature, and when considered with
reference to the obligations imposed on the servient estate, an easement involves
an abnormal restriction on the property rights of the servient owner and is regarded
as a charge or encumbrance on the servient estate. Thus, it is incumbent upon the
owner of the dominant estate to establish by clear and convincing evidence the
presence of all the preconditions before his claim for easement of right of way be
granted. Petitioners miserably failed in this regard.
On the question of adequacy of the existing outlet, petitioners allege that the path
walk is much longer, circuitous and inconvenient, as from Visayas Avenue one has
to pass by Ma. Elena St., turn right to a private road, then enter, then vacant lot,
and turn right again to exit from the vacant lot until one reaches petitioners'
property.
We find petitioners' concept of what is "adequate outlet" a complete disregard of
the well-entrenched doctrine that in order to justify the imposition of an easement
of right of way there must be a real, not ficititious or artificial, necessity for it. Mere
convenience for the dominant estate is not what is required by law as the basis for
setting up a compulsory easement. Even in the face of necessity, if it can be
satisfied without imposing the easement, the same should not be imposed. 11
Thus, in Ramos v. Gatchalian, 12 this Court disallowed the easement prayed for
even if petitioner therein "had to pass through lots belonging to other owners, as
temporary ingress and egress, which lots were grassy, cogonal an greatly
inconvenient due to flood and mud" because it would run counter to the
prevailing jurisprudence that mere convenience for the dominant estate does not
suffice to serve as basis for the easement.
Also, in Floro v. Llenado, 13 we refused to impose an easement of right of way over
petitioner's property, although private respondent's alternative routes admittedly
inconvenient because he had to traverse several rice lands and rice paddies
belonging to different persons, not to mention that said passage, as found by the
trial court, was impassable during rainy season.
Admittedly, the proposed right of way over private respondents' property is the
most convenient, being the shorter and the more direct route to Visayas Avenue.
However, it is not enough that the easement be where the way is shortest. It is
more improtant that it be where it will cause the least prejudice to the servient
estate. 14 As discussed elsewhere, petitioners failed to sufficiently demonstrate that
the proposed right of way shall be at a point least prejudicial to the servient estate.

117

The second assignment of error was likewise properly rejected by the appellate
court. Primarily, the issue of legality or illegality of the conversion of the road lot in
question has long been laid to rest in LRC Case No. Q-1614 15 which declared with
finality the legality of the segregation subdivision survey plan of the disputed road
lot. Consequently, it is now too late for petitioners to question the validity of the
conversion of the road lot.
Finally, questions relating to non-compliance with the requisites for conversion of
subdivision lots are properly cognizable by the National Housing Authority (NHA),
now the Housing and Land Use Regulatory Board (HLURB), pursuant to Sec. 22 of PD
957 16 and not by the regular court. Under the doctrine of primary administrative
jurisdiction,17 where jurisdiction is vested upon an administrative body, no resort to
the courts may be made before such administrative body shall have acted upon the
matter.
WHEREFORE, Petition is DENIED. The 16 January 1996 Decision and the 14 June
1996 Resolution of the Court of Appeals denying reconsideration thereof are
AFFIRMED. Costs against petitioners.
G.R. No. L-10372 December 24, 1915(party wall)
DOMINGO LAO and ALBINA DE LOS SANTOS, applicants-appellants,
vs.
THE HEIRS OF LORENZA ALBURO, objectors-appellees.
This appeal by bill of exceptions was taken from the judgment of August 17, 1914,
in which the honorable judge of the Court of Land Registration decreed that, after
the description of the parcel of land No. 2 should have been amended in the
manner indicated, the parcels of land in the case at bar should be registered in the
name of the applicants, Domingo Lao and his wife Albina de los Santos. It was held
in this decree that the wall, called a stone wall in the plan of the said parcel No. 2,
was a party wall between the said parcel and the property adjoining it on the northwest. Counsel for the applicants excepted to this finding and moved for a new trial.
His motion was overruled whereupon the applicants excepted and duly filed their
bill of exceptions, which was approved and transmitted to this court.
On May 8, 1914, counsel for the said husband and wife filed a written application in
the Court of Land Registration for the registration of four parcels of land, together
with the buildings thereon, of which they claimed to be the absolute owners. The
first of said parcels, Lot No. 1, comprising a house and three other buildings known
asaccesorias, all of strong materials, is situated in Calle Juan Luna, formerly Calle
Jolo or Anloague of the district of Binondo, and has an area of 175.08 square
meters; the second parcel, Lot No. 2, comprising a house of strong materials
erected thereon, likewise situated in Calle Juan Luna, formerly Calle Jolo or

118

Anloague, Binondo, is 212.05 square meters in area; the third parcel of land, Lot No.
3, located in Calle Elcano, San Nicolas, Binondo, and measures 596.06 square
meters in area; and the fourth parcel of land, Lot No. 2, containing two buildings of
strong materials, one of them of three stories, situated in Calle Elcano, San Nicolas,
Binondo, 813.01 square meters in area. The street numbers of the two latter
properties appear in the said judgment, and their boundaries are given in both the
said plan No. 1 and in their respective technical descriptions.
The application recites that the first of the four above-mentioned properties was
appraised in the last assessment, the land at P4,664 and the buildings at P4,000;
the second parcel, the land at P5,492 and the buildings at P3,600; the third parcel,
the land at P6,329 and the buildings at P4,000; and the fourth parcel, the land at
P8,529 and the buildings at P22,500; and that the said properties are all
unencumbered and no one has any right or share therein except the applicants,
who acquired them by purchase, the first parcel from Felix Zalvidea, by a public
instrument of June 11, 1912; the second parcel, from Clara Lichauco and her
husband Catalino Arevalo, by a public instrument of September 12, 1912; the third
parcel, from Antonio Abraham Brimo, by a public instrument of March 28, 1911; and
the fourth parcel, from Marcela Lao, by a public instrument of April 17, 1914. The
application recited the names of the tenants who occupy the first three properties
and states that the applicants occupy the fourth. The names and addresses of the
owners or proprietors of the adjoining properties are also given.
After due service of notice, counsel for the administrator of the estate of the
deceased Lorenza Alburo filed in court a written objection, alleging that in the part
of the application relative to the second parcel of the plan No. 1, a stone wall shown
in that plan to be northeast of the said parcel had been improperly included; that
this wall had belonged to the said Lorenza Alburo, for it had existed since March 8,
1881; that the principal timbers of the building that had belonged to the said
deceased had rested on it for more than thirty-five years, and the latter's
successors had been and were now in the quiet, peaceable and uninterrupted
possession of the said wall.
At the trial of the case both parties thereto introduced documentary and oral
evidence, and the judge of the Court of Land Registration made a personal
inspection of the wall in question and of the respective properties of the applicants
and the objectors.
In the judgment appealed from it is held that the applicants, Domingo Lao and
Albina de los Santos, conclusively and satisfactorily proved that they were, and had
been for about forty years, the lawful owners and possessors of the four properties
sought to be registered; wherefore the court decreed the registration thereof in
their names, but ordered that record be made in the decree that the wall marked on
the plan of the parcel No. 2 as a stone wall was a party wall.

119

Hence the question to be decided relates solely to the matter of the said wall of the
property designated as parcel No. 2 the subject matter of the objection filed by
the administrator of the estate of the deceased Lorenza Alburo, owner of the
property adjoining that designated as parcel No. 2 inasmuch as the administrator
alleges in his objection that the said stone wall forms a part of the property that
belonged to the said deceased while the applicants claim that this wall is theirs,
being a part of the strong-minded material house constructed on the said parcel of
land, Lot No. 2 according to the plan, Exhibit A.
Article 572 of the Civil Code provides that the easement of party walls is presumed,
unless there is a title or exterior mark or proof to the contrary in the dividing walls
of adjoining buildings up to the common point of elevation. As the court held
judgment appealed from that the wall which lies between the properties of the
applicant and the objectors was a party wall, and as the applicants appealed from
this ruling, it devolves upon us to decide whether it is in fact a party wall, as
counsel for the administrator of the estate of the deceased Alburo or for her heirs
finally admitted that it was in assenting to that decision, although he averred in his
written objection that it was the exclusive property of the objectors; or whether, on
the contrary, this wall is a part of property marked No. 2 on the plan Exhibit A, as
the applicants claims.
Article 573 of the Civil Code also declares that it shall be understood that there are
exterior signs which conflict with the easement of party wall, when, among other
circumstances, the entire wall is built on one of the lots and not on the line dividing
the two adjoining parcels; when the dividing wall, being constructed of stone and
cement, has stone projecting at intervals from the surface on one side only and not
on the other; and when it supports joists, beams, floors, and the roof timbers of one
of the houses but not of the adjoining building.1awphil.net
The record shows it to have been duly proven that the enclosing wall of Lot No. 2 of
the plan Exhibit A, belonging to the applicants, is much higher than the adjoining
building of the objectors; that along the top of the said wall there is a gutter which
catches the rain water from the eaves of the roof of the applicants' building and
carries it thence to Calle Juan Luna through an iron pipe fastened to the said wall;
that one-half of the top of the said wall is covered by the roof of the applicants'
building; that the supports of the said wall project toward the side of the applicants'
land and that none of the buttresses are on the side of the objectors' lot; that the
stones of the wall in dispute are bound or inset in the rear enclosing wall of the
applicants' property in such wise that the two walls that inclose the lot form but a
single construction, the exterior signs of which show that the wall in question is not
a party wall, but that it forms a part of the applicant's building and belongs to them.
Besides the signs just referred to, the evidence also shows that on the objectors'
land and flanking the disputed wall there is another and lower wall which has no

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connection with the one in question. Cayetano Arguelles, a master builder, who
climbed to the top of the wall in question and examined it, testified that the
aforesaid drain caught the rain water from the eaves of the applicants' roof, and
that from the outside the division or space between the applicants' wall and the wall
on the objectors' land could be seen; that the lower part of this latter wall had two
arch like hollows; that according to the testimony of the objector, Ireneo Mendoza,
the latter wall was that of an old building that had belonged to the said deceased
and was destroyed by an earthquake; and that in the rear of the objectors' land
were the ruins of a wall which had also flanked the wall in dispute, and these ruins,
according to the said witness Mendoza were what was left of the wall of a latrine
formerly existing there.
These exterior signs contrary to the existence of a party-wall easement cannot be
offset by the circumstance that the dispute wall projects into Calle Juan Luna 74
centimeters farther than the applicants' building, and neither can the fact that the
face of this projecting wall is on the same street line as the objectors' building, for
the reason that, in view of the said signs contrary to the existence of the easement
of party wall, the projection of the wall does not prove that it was a party wall
belonging in common to the applicants and the objectors and that the latter shared
in the ownership thereof.
The objectors have not proved that a part or one-half of the wall in litigation was
erected on the land that belonged to the deceased Lorenza Alburo. The fact that the
owners of the objectors' property may have surreptitiously inserted some of the
timbers or joists of their building in the wall belonging to the applicants is not
enough to convert this latter into a party wall, when there are so many exterior
signs to indicate the exclusive ownership of the wall and to conflict with the
existence of the easement that the objectors endeavor to establish. The wall in
litigation is fully proven by the record to belong exclusively to the applicants.
All of the applicants' properties, including the wall in question, should therefore be
registered.itc-a1f
For the foregoing reasons the judgment appealed from is affirmed, but the decree of
registration of the property designated as Lot No. 2 shall include the disputed wall
as belonging exclusively to the applicants, and that part of said wall is a party wall
is hereby reversed; without special finding as to costs. So ordered.

G.R. No. 911

March 12, 1903

MAXIMO CORTES, plaintiff-appellant,


vs.
JOSE PALANCA YU-TIBO, defendant-appellant.

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This suit was brought to obtain an injunction, in accordance with the provisions of
section 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the
continuation of certain buildings commenced by the defendant. The court below
issued a preliminary injunction during the trial, but, upon, rendering final judgment,
dissolved the injunction, with the costs against the plaintiff. The latter excepted to
this judgment and assigns error:
In the trial the following facts were admitted without contradiction:
(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff,
has certain windows therein, through which it receives light and air, said windows
opening on the adjacent house, No. 63 of the same street; (2) that these windows
have been in the existence since the year 1843 and (3) that the defendant, the
tenant of the said house No. 63, has commenced certain work with the view to
raising the roof of the house in such a manner that one-half of the windows in said
house No. 65 has been covered, thus depriving the building of a large part of the air
and light formerly received through the window. In its decision the court below
practically finds the preceding facts, and further finds that the plaintiff has not
proven that he has, by any formal act, prohibited the owner of house No. 63, from
making improvements of any kind therein at any time prior to the complaint.
The contention of the plaintiff is that by the constant and uninterrupted use of the
windows referred to above during a period of fifty-nine years he acquired from
prescription an easement of light in favor of the house No. 65, and as a servitude
upon house No. 63, and, consequently, has acquired the right to restrain the making
of any improvements in the latter house which might in any manner be prejudicial
to the enjoyment of the said easement. He contends that the easement of light is
positive; and that therefore the period of possession for the purposes of the
acquisition of a prescriptive title is to begin from the date on which the enjoyment
of the same commenced, or, in other words, applying the doctrine to this case, from
the time that said windows were opened with the knowledge of the owner of the
house No. 63, and without opposition on this part.
The defendant, on the contrary, contends that the easement is negative, and that
therefore the time for the prescriptive acquisition thereof must begin from the date
on which the owner of the dominant estate may have prohibited, by a formal act,
the owner of the servient estate from doing something which would be lawful but
for the existence of the easement.
The court below in its decision held in the easement of light is negative, and this
ruling has been assigned by the plaintiff as error to be corrected by this court.
A building may receive light in various manners in the enjoyment of an easement of
light, because the openings through which the light penetrates may be made in
one's own wall, in the wall of one's neighbor, or in a party wall. The legal doctrine
applicable in either one of these cases is different, owing to the fact that, although
anyone may open windows in his own wall, no one has a right to do so in the wall of
another without the consent of the owner, and it is also necessary, in accordance
with article 580 of the Civil Code, to obtain the consent of the other coowner when
the opening is to be made in a party wall.

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This suit deals with the first case; that is, windows opened in a wall belonging to the
wife of the plaintiff, and it is this phase of the easement which it is necessary to
consider in this opinion.
When a person opens windows in his own building he does nothing more than
exercise an act of ownership inherent in the right of property, which, under article
348 of the Civil Code, empowers him to deal with his property as he may see fit,
with no limitations other than those established by law. By reason of the fact that
such an act is performed wholly on a thing which is wholly the property of the one
opening the window, it does not in itself establish any easement, because the
property is used by its owner in the exercise of dominion, and not as the exercise of
an easement: "For a man," says law 13, title 31, third partida, "should not use that
which belongs to him as if it were a service only, but as his own property."
Coexistent with this right is the right of the owner of the adjacent property to cover
up such windows by building on his own land or raising a wall contiguously to the
wall in which the windows are opened (art. 581 of the same Code), by virtue of the
reciprocity of rights which should exist between abutting owners, and which would
cease to exist if one could do what he pleased on his property and the other could
not do the same on his. Hence it is that the use of the windows opened in a wall of
one's own property, in the absence of some covenant or express agreement to the
contrary, is regarded as an act of mere tolerance on the part of the owner of the
abutting property (judgments of the supreme court of Spain of the 17th of May,
1876; 10th of May, 1884; 30th of May, 1890), and does not create any right to
maintain the windows to the prejudice of the latter (judgment of the supreme court
of Spain of the 13th of June, 1877). The mere toleration of such an act does not
imply on the part of the abutting owner a waiver of his right to freely build upon his
land as high as he may see fit, nor does it avail the owner of the windows for the
effects of possession according to article 1942 of the Civil Code, because it is a
mere possession at will. From all this it follows that the easement of light with
respect to the openings made in one's own edifice does not consist precisely in the
fact of opening them or using them, inasmuch as they may be covered up at any
time by the owner of the abutting property, and, as Manresa says in his
commentaries on the Civil Code, "there is no true easement as long as the right to
impede its use exists." The easement really consists of in prohibiting or restraining
the adjacent owner from doing anything which may tend to cut off or interrupt the
light; in short, it is limited to the obligation of not impeding the light (ne luminibus
officiatur). The latter coincides in its effects, from this point of view, with the
obligation of refraining from increasing the height of a building (altius non tollendi),
which, although it constitutes a special easement, has for its object, at times, the
prevention of any interruption of the light enjoyed by the adjacent owner.
It will be readily observed that the owner of the servient estate subject to such
easement is under no obligation whatsoever to allow anything to be done on his
tenement, nor to do anything there himself, but is simply restrained from doing
anything thereon which may tend to cut off the light from the dominant estate,
which he would undoubtedly be entitled to do were it not for the existence of the
easement. If, then, the first condition is that which is peculiar to positive
easements, and the second condition that which is peculiar to negative easements,
according to the definition of article 533 of the Civil Code, it is our opinion that the
easement of lights in the case of windows opened in one's own wall is of a negative

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character, and, as such, can not be acquired by prescription under article 538 of the
Civil Code, except by counting the time of possession from the date on which the
owner of the dominant estate may, by a formal act have prohibited the owner of the
servient estate from doing something which it would be lawful from him to do were
it not for the easement.
The supreme court of Spain, in its decisions upon this subject, has established these
principles by a long line of cases. In its judgment of May 14, 1861, the said court
holds that "the prescription of the easement of lights does not take place unless
there has been some act of opposition on the part of the person attempting to
acquire such a right against the person attempting to obstruct its enjoyment." The
easements of light and view," says the judgment of March 6, 1875, "because they
are of a negative character, can not be acquired by a prescriptive title, even if
continuous, or although they may have been used for more than twenty-eight
years, if the indispensable requisite for prescription is absent, which is the
prohibition on the one part, and the consent on the other, of the freedom of the
tenement which it is sought to charge with the easement." In its judgment of June
13, 1877, it is also held that use does not confer the right to maintain lateral
openings or windows in one's own wall to the prejudice of the owner of the adjacent
tenement, who, being entitled to make use of the soil and of the space above it,
may, without restriction, build on his line or increase the height of existing
buildings, unless he has been " forbidden to increase the height of his buildings and
to thus cut off the light," and such prohibition has been consented to and the time
fixed by law subsequently expired. The court also holds that it is error to give the
mere existence or use of windows in a wall standing wholly on the land of one
proprietor the creative force of true easement, although they may have existed
from the time immemorial. Finally, the judgments of the 12th of November, 1899,
and the 31st of May, 1890, hold that "as this supreme court has decided, openings
made in walls standing wholly on the land of one proprietor and which overlook the
land of another exist by mere tolerance in the absence of an agreement to the
contrary, and can not be acquired by prescription, except by computing the time
from the execution of some act of possession which tends to deprive the owner of
the tenement affected of the right to build thereon." Various other judgments might
be cited, but we consider that those above mentioned are sufficient to demonstrate
the uniformity of the decisions upon this point. It is true that the supreme court of
Spain, in its decisions of February 7 and May 5, 1896, has classified as positive
easements of lights which were the object of the suits in which these decisions were
rendered in cassation, and from these it might be believed at first glance that the
former holdings of the supreme court upon this subject had been overruled. But this
is not so, as a matter of fact, inasmuch as there is no conflict between these
decisions and the former decisions above cited.
In the first of the suits referred to, the question turned upon two houses which had
formerly belonged to the same owner, who established a service of light on one of
them for the benefit of the other. These properties were subsequently conveyed to
two different persons, but at the time of the separation of the property nothing was
said as to the discontinuance of the easement, nor were the windows which
constituted the visible sign thereof removed. The new owner of the house subject to
the easement endeavored to free it from the incumbrance, notwithstanding the fact
that the easement had been in existence for thirty-five years, and alleged that the

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owner of the dominant estate had not performed any act of opposition which might
serve as a starting point for the acquisition of a prescriptive title. The supreme
court, in deciding this case, on the 7th of February, 1896, held that the easement in
this particular case was positive, because it consisted in the active enjoyment of the
light. This doctrine is doubtless based upon article 541 of the Code, which is of the
following tenor: "The existence of apparent sign of an easement between two
tenements, established by the owner of both of them, shall be considered, should
one be sold, as a title for the active and passive continuance of the easement,
unless, at the time of the division of the ownership of both tenements, the contrary
should be expressed in the deed of conveyance of either of them, or such sign is
taken away before the execution of such deed."
The word "active" used in the decision quoted in classifying the particular
enjoyment of light referred to therein, presupposes on the part of the owner of the
dominant estate a right to such enjoyment arising, in the particular case passed
upon by that decision, from the voluntary act of the original owner of the two
houses, by which he imposed upon one of them an easement for the benefit of the
other. It is well known that easements are established, among other cases, by the
will of the owners. (Article 536 of the Code). It was an act which was, in fact,
respected and acquiesced in by the new owner of the servient estate, since he
purchased it without making any stipulation against the easement existing thereon,
but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As
is stated in the decision itself, "It is a principle of law that upon a division of a
tenement among various persons -- in the absence of any mention in the contract
of a mode of enjoyment different from that to which the former owner was
accustomed -- such easements as may be necessary for the continuation of such
enjoyment are understood to subsist." It will be seen, then, that the phrase "active
enjoyment" involves an idea directly opposed to the enjoyment which is the result
of a mere tolerance on the part of the adjacent owner, and which, as it is not based
upon an absolute, enforceable right, may be considered as of a merely passive
character. Therefore, the decision in question is not in conflict with the former
rulings of the supreme court of Spain upon the subject, inasmuch as it deals with an
easement of light established by the owner of the servient estate, and which
continued in force after the estate was sold, in accordance with the special
provisions of article 541 of the Civil Code.
Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above
laid down, because it refers to windows opened in a party wall, and not in a wall the
sole and exclusive property of the owner of the dominant tenement, as in the cases
referred to by the other decisions, and as in the case at bar. The reason for the
difference of the doctrine in the one and the other case is that no part owner can,
without the consent of the other, make in a party wall a window or opening of any
kind, as provided by article 580 of the Civil Code. The very fact of making such
openings in such a wall might, therefore, be the basis for the acquisition of a
prescriptive title without the necessity of any active opposition, because it always
presupposes the express or implied consent of the other part owner of the wall,
which consent, in turn, implies the voluntary waiver of the right of such part owner
to oppose the making of such openings or windows in such a wall.

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With respect to the provisions of law 15, title 31, third partida, which the appellant
largely relied upon in this oral argument before the court, far from being contrary to
it, is entirely in accord with the doctrine of the decisions above referred to. This law
provides that "if anyone shall open a window in the wall of his neighbor, through
which the light enters his house," by this sole fact he shall acquire a prescriptive
title to the easement of light, if the time fixed in the same law (ten years as to those
in the country and twenty years as to absentees) expires without opposition on the
part of the owner of the wall; but, with the exception of this case, that is to say,
when the windows are not opened in the wall of the neighbor, the law referred to
requires as a condition to the commencement of the running of the time for the
prescriptive acquisition of the easement, that "the neighbor be prohibited from
raising his house, and from thereby interrupting the light." That is to say, he must
be prohibited from exercising his right to build upon his land, and cover the window
of the other. This prohibition, if consented to, serves as a starting point for the
prescriptive acquisition of the easement. It is also an indispensable requisite,
therefore, in accordance with the law of the partidas, above mentioned, that some
act of opposition be performed, in order that an easement may be acquired with
respect to openings made in one's own wall.
For a proper understanding of this doctrine, it is well to hold in mind that the Code
of the partidas, as well as the Roman law, clearly distinguishes two classes of
easements with respect to the lights of houses, as may be seen in law 2 of title 31,
of the third partida. One of them consists in "the right to pierce the wall of one's
neighbor to open a window through which the light may enter one's house"
(equivalent to the so-called easement of luminum of the Romans); the other is "the
easement which one house enjoys over another, whereby the latter can not at any
time be raised to a greater height than it had at the time the easement was
established, to the end at the light be not interrupted." (Ne luminibus officiatur.) For
the prescriptive acquisition of the former the time must begin, as we have seen,
from the opening of the window in the neighbor's wall. As to the second, the time
commences from the date on which he was "prevented from raising his house."
Some of the judgments which establish the doctrine above laid down were rendered
by the supreme court of Spain interpreting and applying the above cited law 15,
title 31, partida 3, and therefore they can not in any sense be regarded as
antagonistic to the law itself.
The question as to whether the windows of the house of the plaintiff are, or are not,
so-called regulation windows, we consider of but little importance in this case, both
because the authority of the decisions of the law of thepartidas, above cited, refers
to all kinds of windows, and not to regulation windows solely, and because the
record does not disclose, nor has the appellant even stated, the requirements as to
such regulation windows under the law in operation prior to the Civil Code, which he
asserts should be applied and on which he relies to demonstrate that he has
acquired by prescription the easement in question. With respect to the watershed
which, according to the plaintiff, exists over the window in question, the record does
not disclose that the same has been destroyed by the defendant. He expressly
denies it on page 7 of his brief, and affirms (p. 8) that the tenant of the appellant's
property himself removed it, by reason of the notice served on him; on the other
hand, the judgment of the court below contains no findings with respect to this fact,
nor does it disclose the former existence of any such watershed. Furthermore, the

126

opinion which we have formed with respect to this matter, in so far as we are able
to understand the merits of the case, is that this shed was a mere accessory of the
window, apparently having no other purpose than that of protecting it against the
inclemency of the weather; this being so, we are of opinion that it should follow the
condition of the window itself, in accordance with the legal maxim that the
accessory always follows the principal. The appellant contends that the shed should
be regarded as a projection within the provisions of article 582 of the Code; but it is
sufficient to observe that this article speaks of windows with direct views, balconies,
or similar projections, in order to conclude that the article does not refer to such
watersheds, which have not the slightest degree of similarity to balconies, nor are
they constructed for the purpose of obtaining the view -- this being the subjectmatter which this article expressly purports to control -- inasmuch as such sheds
have rather the effect of limiting the scope of the view than of increasing it.
The fact that the defendant did not cover the windows of the other house adjacent
No. 63 at the time he covered the windows of the appellant, a fact which the latter
adduces as proof of the recognition on the part of the former of the prescriptive
acquisition of the easement of the light in favor of that house, which, according to
his statement, is under precisely the same conditions as the house of the plaintiff,
does not necessarily imply, in our opinion, any such recognition, as it might be the
result of a mere tolerance on the part of the defendant. Certainly the fact of his
tolerating the use by the owner of that house of such windows, supposing the facts
to be as stated, does not carry with it as a result an obligation to exercise the same
forbearance with respect to the plaintiff; but whatever may be the legal status of
the windows in the house referred to with respect to the house No. 63, we cannot
pass upon the point, nor can we form suppositions concerning the matter for the
purpose of drawing conclusions of any kind therefrom to support our opinion, for the
simple reason that it is not a point at issue in the case, and more especially because
the defendant not only denied the existence of the alleged easement of light in
favor of the house referred to, but, on the contrary, he affirms that demand has
been made that the windows in said house be closed, as may be seen on page 8 of
his brief.
The point discussed in this trial being whether the plaintiff has acquired the
easement which he seeks to enforce over the house of which the defendant is
tenant, it is evident that the provisions of article 585 of the Civil Code can not be
invoked without taking for granted the very point at issue. This article refers to
cases in which, under any title, the right has been acquired to have direct views,
balconies, or belvederes over contiguous property. The existence of such a right
being the very point at issue, the supposition upon which the article rests is lacking,
and it is therefore not in point.
As a result of the opinion above expressed, we hold:
1. That the easement of light which is the object of this litigation is of a negative
character, and therefore pertains to the class which can not be acquired by
prescription as provided by article 538 of the Civil Code, except by counting the
time of possession from the date on which the owner of the dominant estate has, in
a formal manner, forbidden the owner of the servient estate to do an act which
would be lawful were it not for the easement.

127

2. That, in consequence thereof, the plaintiff, not having executed any formal act of
opposition to the right of the owner of the house No. 63 Calle Rosario (of which the
defendant is tenant), to make therein improvements which might obstruct the light
of the house No. 65 of the same street, the property of the wife of the appellant, at
any time prior to the complaint, as found by the court below in the judgment
assigned as error, he has not acquired, nor could he acquire by prescription, such
easement of light, no matter how long a time have elapsed since the windows were
opened in the wall of the said house No. 65, because the period which the law
demands for such prescriptive acquisition could not have commenced to run, the
act with which it must necessarily commence not having been performed.
Therefore, we affirm the judgment of the court below and condemn the appellant to
the payment of all damages caused to the plaintiff, and to the payment of the costs
of this appeal. So ordered.
ON MOTION FOR A REHEARING.
The plaintiff asks for a rehearing of the decision of the court of March 12th last upon
the ground that the same contains error:
First, because the decision holds that the window opened in the plaintiff's own wall
and watershed do not constitute the continuous and apparent easements of
prospect, light, and ventilation, or jus projitiendi and jus spillitiendi, this ruling being
in opposition to the provisions of laws 12, 14, and 15, title 31, third partida, and
articles 530, 532, 533, 537, 538, 582, and 585 of the Civil Code.
This allegation is entirely unfounded, inasmuch as the decision of the court contains
no declaration as to whether the windows and watershed do or do not constitute
continuous and apparent easements, or jus projitiendi and jus spillitiendi. These
questions were not drawn into issue by the complaint, and therefore any decision
thereon one way or the other would have been mere dicta. What the court did hold
was that the easement of light, when it is sought to claim such benefit from a
window opened in one's own wall, as does the appellant with respect to the
tenement of the defendant, belongs to the class of negative easements, and that on
hold on that account the time of possession for prescriptive acquisition of the title
thereto must be counted, not from the time of the opening of the windows, but from
the time at which the owner thereof has executed some act of opposition tending to
deprive the owner of the servient tenement of his right, under the law, build upon it
to such height as he might see fit in the legitimate use of his rights of ownership.
With respect to the watershed, the court held that the shed in question in the case
is not included within the class of projections referred to in article 582 of the Civil
Code, and certain it is that neither this article nor any of the other provisions of law
cited by the appellant in his motion papers established any doctrine contrary to that
laid down in the decision, either with regard to the watershed or with respect to the
windows. It is not necessary to say anything further upon this point. It is sufficient
to read the text of the laws cited to reach the conclusion that the assertion made by
the appellant in his motion papers is entirely gratuitous.
Article 582 provides that windows with direct views, balconies, or other similar
projections opening upon the tenement of one's neighbor are not permissible unless

128

there are two meters distance between the wall in which such openings are
constructed and the adjacent tenement. From this the appellant draws the
conclusion that he who opens windows in his own wall without respecting the
distance mentioned does not exercise an act of ownership, as stated in the decision,
inasmuch as he violates an express provisions of the law.
The conclusion reached is evidently false. The appellant confounds the facts with
the law -- an act of ownership with the right of ownership. The owner of a thing does
not cease to be such owner because in his manner of use or enjoyment thereof he
violates some provision of law. The acts which he performs, in our opinion, even if
abusive or contrary to law, are in a strict sense acts of ownership, acts in the
exercise of dominion, because this character is not derived from a greater or less
degree of compliance with the provisions of law, but from the existence of the
status of owner on the part of the person who exercises such acts. In order that the
act performed by the owner of a wall in opening windows therein be a true act of
ownership it is a matter of indifference whether or not the distance prescribed by
article 582 of the Code has been respected, although, considered from a legal point
of view, it might be an illegal act, as not complying with the conditions imposed by
law.
The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the
effect that "a man should not use that which belongs to him as if it were a service
only, but as his own property" is of general application, and does not refer to the
easements which is a property owner may establish for the benefit of his heirs, as is
erroneously believed by the appellant. The very same law provides that easements
which "a man imposes upon his house must be for the benefit of the tenement or
thing of another, and not that of his own tenement;" and this is because things are
of service to their owner by reason of dominion, and not in the exercise of a right of
easement. "Res sua," says a legal maxim, "nemini jure servitutis servit."
The provision of article 1942 of the Civil Code to the effect that acts which are
merely tolerated procedure no effect with respect to possession is applicable as
much as to the prescription of real rights as to the prescription of the fee, it being a
glaring and self-evident error to affirm the contrary, as does the appellant in his
motion papers. Possession is the fundamental basis of the prescription. Without it
no kind of prescription is possible, not even the extraordinary. Consequently, if acts
of mere tolerance produce no effect with respect to possession, as that article
provides, in conformity with article 444 of the same Code, it is evident that they can
produce no effect with respect to prescription, whether ordinary or extraordinary.
This is true whether the prescriptive acquisition be of a fee or of real rights, for the
same reason holds in one and the other case; that is, that there has been no true
possession in the legal sense of the word. Hence, it is because the use of windows
in one's own wall is the result of a mere tolerance that the supreme court of Spain,
in its judgment of June 13, 1877, has held that such user lacks the creative force of
a true easement, although continued from time immemorial. The citation of article
1959 of the Civil Code and of law 21, title 29, partida 3, made by the petitioner, is
therefore not in point, because both of these provisions of law, which refer to the
extraordinary period of prescription presuppose possession as a necessary
requisite, even if without either just title or good faith.

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The second error assigned is that in the decision the court holds that
the gravamina constituted by the window and the projection are negative
easements, against the provisions of article 533, which define them as positive,
which definition, he adds, is supported by the judgments of the supreme court of
Spain of February 7 and May 5, 1896, cited in paragraph 12 of the said decision,
which judgments declare that the easement resulting from a window is positive.
It is not true that article 533 of the Civil Code says that the easement of light is
positive, because it does nothing more than give in general terms the definition of
positive easements and negative easements, without attempting to specify whether
the easement of lights pertains to the first or to the second class. We have declared
that the easement is negative, having in mind this very definition of the Code and
the doctrine established by the judgments of the supreme court of Spain which
have been cited in our opinion. The interpretation which the appellant attempts to
give the article of the Civil Code cited is evidently erroneous and, consequently, the
citation made by him in support of his contention is not in point.
Our opinion of the true extent and meaning of the judgments of the supreme court
of Spain of February 7 and May 5, 1896, has been already sufficiently explained,
and it is therefore unnecessary to go into the subject again here. We refer to our
decision with respect to what was said therein upon this subject.
The decision of the court does not contain the declaration, as gratuitously assumed
by the appellant, that the easement resulting from a projection is of a negative
character; nor, in fact, had we any occasion to make such a declaration, in view of
the nature of the issues raised and discussed during the trial. What we did, indeed,
hold was that the watershed mentioned in the complaint, the purpose of which was
simply to protect the window in question from sun and rain, was a mere accessory
to that window, and that in no case could it be considered as a projection within the
provisions of article 582 of the Civil Code, as so erroneously contended by the
appellant at the trial. We find nothing in his motion papers which can in any way
weaken this holding.
The third error is assigned is that the court holds that the easement of light, as
negative, can not be acquired by prescription except by counting the period of
possession from the time at which the owner of the servient tenement has been
prohibited from making improvements which might interfere with said easement,
contrary to the provisions of law 14, title 31, partida 3, and articles 538 and 585 of
the Civil Code, which establish the contrary.
This assertion is entirely destitute of foundation, inasmuch as neither in the law of
the partidas nor in the articles of the Civil Code mentioned is to be found the
doctrine which the appellant arbitrarily seeks to deduce from them. It is sufficient to
read the text to reach the conclusion that the assertion is wholly gratuitous.
The fourth error assigned is that the court holds that the watershed, as being an
accessory of the window, can not in itself constitute an easement, this being
contrary to the provisions of articles 582 and 585 of the Civil Code, and law 2, title
31, partida 3, which do not make any such distinction.

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Neither of the law cited speaks expressly of watersheds. We have held that article
582 refers solely to windows, balconies, and other similar projections, and that the
watershed in question does not pertain to this class of projections, our holding
being based upon the reasons given in our decision. The appellant advances no
argument worthy of serious consideration, and therefore we continue to believe that
our opinion in this matter is strictly in accordance with the law.
The appellant has attached to his motion for a rehearing two judgments, one
rendered by the Royal Audiencia of Manila September 6, 1877, and the other by the
supreme court of Spain on the 22d of February, 1892, and we think it well to say a
few words concerning them.
In the opinion of the appellant these judgments support the theory contended for by
him at the trial, that the easement of lights is positive and not negative. His error in
so believing is evident, inasmuch as neither of the judgments referred to
establishes any such doctrine. On the contrary, it appears clear, from the first of
these judgments, that the easement referred to is negative in the opinion of the
court which rendered it. This appears from the eight conclusion of law therein,
which is literally as follows: "From the evidence introduced by the defendant, and
even from the testimony of witnesses of the plaintiff, it has been proven that since
1828 the house in question has suffered no change or alteration in its roof, which
projects over Cosio's lot, which constitutes the active opposition necessary in order
to acquire by prescription the right to the light." It will be seen, then, that the latter
part of the preceding transcript of the conclusion of law days down precisely the
same doctrine as that expressed in our decision -- that active opposition is a
necessary condition for prescriptive acquisition of an easement of light. And this
also demonstrates conclusively that the court which rendered the judgment referred
to considered the easement to be negative, inasmuch as positive easements do not
require any active opposition as a basis for their prescriptive acquisition, such an
act being solely necessary to the prescription of negative easements.
It would appear, judging from his allegations as a whole, that the appellant confuses
positive easements with continuous easements, and the judgments referred to, in
fact, declares in its fourth conclusion of law that the easement of light is continuous.
If these were really so the error of the appellant would be manifest, because
continuity is not a quality exclusively peculiar to positive easements; there are
negative easements which are also continuous. Hence if is that the Civil Code, after
classifying easements, in article 532, as continuous and discontinuous, classifies
them also as positive and negative (art. 533), thus giving to understand that this
latter classification depends upon other characteristics entirely distinct from the
continuity or discontinuity of easements. If all continuous easements were positive
and all discontinuous easements were negative, then the express division of
easements into positive and negative made by the Code, after establishing the
division of the same as continuous or discontinuous, would be entirely unnecessary,
as they would be entirely merged or included in the latter classification. It is
sufficient to read the text of the Code to understand beyond the possibility of a
doubt that a negative easement may be continuous, and that a positive easement
may be discontinuous, according to the special nature of each one.

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With respect to the second judgment -- the judgment of the supreme court of Spain
of February 22, 1892 -- it is certainly difficult to understand how the appellant could
have imagined that he had found therein the slightest ground for his contention,
inasmuch as it lays down no doctrine which relates even inference to the subject of
easements, and simply holds, in the first of only two paragraphs in which its
conclusions are contained, that "judgments should be clear, precise, and responsive
to the complaint and the issues properly raised at the trial;" and in the second, that
"the judgment appealed was contradictory as to the questions it decides, because it
makes certain declarations favorable to some of the contentions in the plaintiff's
complaint and then gives judgment for the defendant, without making any
distinction." It was for this reason alone, and for no other, that the judgment
appealed was reversed and annulled. In the judgment rendered by the same
supreme court upon the merits of the case, as a result of this decision in cassation,
no other doctrine is laid down than that "the judgment must be that the defendant
comply with those claims advanced by the complaint to which he was consented,
and that he must be discharged as to those allegations which have been denied by
him and which have not been proved by the plaintiff."
There is not one word on these judgments which says that the easement of lights is
positive, nor that a watershed constitutes a true projection within the meaning
attached to this word in article 582 of the Civil Code, as has been vainly contended
by the appellant in the trial.
Therefore the appellant's motion for a rehearing of the decision of March 12, 1903,
is denied.
ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME
COURT OF THE UNITED STATES.
The application to this court for the allowance of a writ of error or appeal for the
purpose of removing this case to the Supreme Court of the United States is denied.
Section 10 of the act of Congress of July 1, 1902, is as follows:
SEC. 10. That the Supreme Court of the United States shall have jurisdiction to
review, revise, reverse, modify, or affirm the final judgments and decrees of
the Supreme Court of the Philippine Islands in all actions, cases, causes, and
proceedings now pending therein or hereafter determined thereby in which
the Constitution or any statute, treaty, title, right, or privilege of the United
States is involved, or in causes in which the value in controversy exceeds
twenty-five thousand dollars, or in which the title or possession of real estate
exceeding in value the sum of twenty-five thousand dollars, to be ascertained
by the oath of either party or of other competent witnesses, is involved or
brought in question; and such final judgments or decrees may and can be
reviewed, revised, reversed, modified, or affirmed by said Supreme Court of
the United States on appeal or writ of error by the party aggrieved, in the
same manner, under the same regulations, and by the same procedure, as far
as applicable, as the final judgments and decrees of the circuit courts of the
United States.

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There is no question in the case relating to the Constitution or any statute of the
United States. The evidence submitted by the applicant shows that the value of his
property over which the litigation turns is $11,867.70, money of the United States.
The fact that the plaintiff owns other houses in different parts of the city as to which
he claims an easement of light similar to the one claimed in this case, that the
decision in this case destroys all of these claimed easements, and that the value of
those other houses exceeds $25,000, gold, is not important. The test is the value of
the matter in controversy. The matter in controversy here was the easement of light
and air over the property No. 63 Calle del Rosario and in favor of house No. 65. That
easement could not be worth more than the house itself.
The easements in favor of other houses of the plaintiff over other lots than No. 63
were not in controversy in this suit. (Town of Elgin vs. Marshall, 106 U. S., 578.) So
ordered.
27. Fabie vs. Lichauco 11 Phil. 15 (
G.R. No. L-3598

( light and view)

July 24, 1908

MIGUEL FABIE Y GUTIERREZ, petitioner-appellee,


vs.
JULITA LICHAUCO, AND THE CHILDREN OF FRANCISCO L.
ROXAS, respondents-appellants.
This is an appeal from a judgment of the Court of Land Registration. The petitioner
applied for the registration of his property, situated at 22 Calle San Jacinto, district
of Binondo, Manila, free from all incumbrances, with the exception of an easement
of right of way which he recognizes as existing in favor of the estates of the
respondents Lichauco and Hijos de Roxas, which adjoin the property of the
petitioner on the right and left of its entrance, respectively. In addition to the said
easement of rigth of way the respondents claim that of light, view, and drainage in
favor of their respective properties; said claim was modified in part during the
course of the litigation as far as it referred to Julita Lichauco, who finally reduced
her opposition (fol. 138) to the easement of right of way and of light and view.
In the judgment appealed from it is held that the easement of right of way exits in
favor of the respective properties of Julita Lichauco and Hijos de Roxas, and the
latter are further entitled to the easement of drainage. The claim of both
respondents as to other easements was dismissed.
(a) Opposition made by Julita Lichauco. This opponent invokes as the only legal
foundation for her claim the provisions of article 541 of the Civil Code. The language
of said provisions is as follows:

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The existence of an apparent sign of an easement between of two estates


established by the owner of both shall be considered should one of them be
alienated, as a title, in order that the easement may continue actively and
passively, unless, at the time of the division of the ownership of both estates,
the contrary should be expressed in the instrument of alienation of either of
them or if said sign is removed before the execution of the instrument.
It is alleged by Lichauco, as a material fact for applying the above legal provision,
that her property, as well as that of the petitioner, came from Juan Bautista Santa
Coloma, the original owner of both estates, who, at the time of constructing them,
establish upon the latter estate, not only an easement of right of way, which the
petitioner admits, but also the easement of light and view which he claims; and that
when both properties were alienated that of petitioner on the 28th of November,
1848, and that of the respondents (Julita Lichauco) on the 31st of October of the
same year, the apparents sign of the existence of said easement was not removed,
nor was it expressed in the instrument of the alienation of the estates that such
easement should be abolished.
The apparent sign of the easements claimed in this case is made to consists of a
gallery with windows through which light is admitted. In her written opposition
Lichauco states that the said gallery is supported on columns erected on the ground
belonging to the petitioner, and on the first page of her brief submitted to this court
she again states that the balcony of her building is supported by uprights erected
on land owned by the petitioner.
The parties to the suit having admitted the actual existence of the aforesaid gallery,
the question now to be decided is whether or not it existed when the ownership of
the two estates of Juan Bautista Santa Coloma was divided by the alienation of the
one which now belongs to the respondent (Lichauco) and which was the first sold on
October 31, 1848.
The instrument of sale (fol. 78) presented by said respondents contains a
description of said house such as it was at that time and after setting forth the
boundaries thereof, state that the house is built of stone and mortar, and that it is
erected upon the lot of the owner, and has a frontage of twenty and one
fourth varas and three and a half inches, with a depth of thirty one and one
fourth varas. Converting the varas into meters and disregarding the centimeters, it
results that said house had a frontage of 16 meters, equivalent to that twenty and
one fourth varasand three and a half inches stated in the instrument when it was
alienated for the first time in October, 1848. Twenty years thereafter that is, on
the 13th of September, 1869 the house was surveyed and appraised by Achitect
Luciano Oliver at the request of the person who then owned it, and in the certificate
issued by the said architect, (fol. 94) it is set forth that the house measures 16
meters on the front facing Calle San Jacinto which confirms and corroborates the

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measurement stated in the aforesaid instrument. Now then, according to the plan
on folio 137, Exhibit I of the respondent (Lichauco), the house was now a frontage of
18 meters and 60 centimeters, of which 16 meters and 60 centimeters correspond
to the main part of the same, and 1 meter and 90 centimeters to the gallery in
question. It results, therefore, that at the present day, the house has nearly 2
meters more frontage than when it was alienated by Santa Coloma, the original
owner thereof, or rather by the executors of his estate on the 31st of October, 1848.
According to this it is evident that the frontline of the house was increased by about
2 meters after the same was sold by Santa Coloma and it also seems clear to us
that it is the gallery mentioned above which constitutes the increase, both because
it measures 1 meter and 90 centimeters, which, with a difference of a few
centimeters, exactly represents such excess, and because it has neither been
alleged nor claimed by the said respondent, that the rest which froms the main part
of the house has suffered and alteration in its frontage since the year 1848.
There is furthermore another detail in support of said conclusion. As stated by the
respondent, the gallery is supported by columns erected on the lot of the petitioner,
so that it is not merely a body projecting over the said lot without materially resting
thereon but a construction erect and having foundations in the lot of the petitioner
inasmuch as the columns that support the said gallery are planted therein.
Therefore, at the present day the house is erected partly on the land belonging to
the owner and partly, the gallery, over a lot belonging to another; that is, over that
of the petitioner. When it was sold in October, 1848, no portion of the house
occupied the lot last mentioned, but the entire building was erected over a lot
belonging to the owner as set forth in the instrument of sale.
To the foregoing considerations the following may be added in conclusion: In view of
the fact that the two buildings namely, that of the petitioner and that of the
respondent originally belonged to the same owner, and on the supposition that
the gallery did already exist and that as stated, it is supported on columns erected
in the lot now owned by the petitioner, it is not an easy matter to explain how it was
that when the ownership of the two properties was separated the house of the
respondent, of which the said gallery forms a part, was sold to one person while the
lot over which the said gallery is erected or in which its columns are imbedded was
sold to a different person. It would be a logical and natural thing to suppose that in
the sale of the gallery the land occupied by the same would have been included in
order to avoid the division of the ownership of the ground and the superficies, that
it is, the lot and that which is erected upon it. The necessity for such division does
not appear nor can any reasonable justification therefore be discovered in the
present case.
On the other hand, in none of the numerous papers presented by the respondent is
their any mentioned made of the gallery in question, notwithstanding the fact that

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in some of them the house of the respondent (Lichauco) is minutely described and it
does not seem that this is due to mere carelessness or inadvertence, or that it was
considered unnecessary to mention such gallery, inasmuch as deliberate, careful,
and repeated mention is made of the other gallery on the side of the house facing
the street, as may be seen from several of the other documents above alluded to,
among which are the certificate issued by architect Luciano Oliver, on September
13, 1869, (fol. 94) the instrument of sale executed in favor of Manuel Gonzalez
Junquito (fol. 104), and the mortgage deed of the same date in favor of the Obras
Pias (fol. 116). In each of the said documents the statement is made that the house
has a corridor supported on columns on Calle San Jacinto, while nothing is said,
even incidentally, regarding the other corridor or gallery that now exists over the lot
of the petitioner. In our opinion there is no reason why in the description of the
house has made by various persons at different times, mentions should always
have been made of only one of the galleries, the other been entirely ignored, if both
had really existed on the respective dates of the documents above referred to.
And it is useless to say, as argued by the respondent in her brief, that Architect
Oliver's certificate, on which the description made in the subsequent documents
was taken, contained but a superficial description of the property without details of
its four sides. For said reason she states that the fact that no mention is made of
the balcony or gallery in question is of no importance, as the said certificate deals
with the value of the property only, it being well known that such a work is
performed taking into account all the details and circumstances which may increase
or decrease the value of the same. Hence, the respondents goes on to sale, that
mention was made, by said architect of the veranda facing the street for the
purpose of distinguishing between the one built on private land and the one which
built over land belonging to the city. For the very same reason she should have
mentioned also the veranda built over the lot of the petitioner, if it had been in
existence specially has the value erected on land belonging to the owner is not the
same as that which is constructed on land owned by another person. The omission
of this detail in such a document wherein in order to omit nothing mention is even
made of a well and stable both of which are unimportant portions of a building; such
an omission, we say, added to the reasons given above, induces us to come to the
conclusion, as a result of the documentary evidence adduced at the trial, that the
gallery in question did not exist at the time when the house of the respondent was
alienated by its original owner, Santa Coloma, in October, 1848.
This conclusion is not weakened by the expert testimony offered by the respondent,
the only testimony which she introduced aside from the documentary evidence
already mentioned. As the judgment appealed from properly states, even if the
forty or fifty years of existence of the house referred to, according to the unanimous
reckoning of the experts offered by said party is accepted, yet, we do not reach the
year 1848, more than fifty-seven years back, when the separation of the ownership
of said house and that of the petitioner took place; such date constitutes the

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essential and culminating point of the question. Moreover, it does not appear that
said experts, who, among, other things, base their opinion on the conditions of the
building and its materials, have made a careful and sufficient examination and
survey of the latter. This is evidenced by the fact that one of them, Enrique
Lafuente, states, on folio 146, that the columns which support the gallery facing the
street are built of stone, and that those of the other gallery over the lot of petitioner
are of wood; while according to another, Ramon Herrera Davilla, (fol. 152) both sets
of columns are built of stone, and the third, Jose Perez Siguenza (fol. 157), affirms
that they are all about of wood, those facing the street as well as those embedded
in the land of the petitioner.
Furthermore, all the experts discuss and reason, and render their opinion as if the
house was in the same condition as when sold by Santa Coloma in 1848, when it
seems certain and unquestionable that long after the said year it underwent, or
must have undergone, very important repairs of an essential nature. This is shown
by the letter written by Manuel Gonzalez Junquito, who owned it the time, to his
attorney in fact under date if March 25, 1889, and was incorporated in the
instrument of sale executed by said attorney in fact of the owner in favor of the
respondent. In said letter Junquito states that the house was converted into a heap
of ruins, and that(undoubtedly for the said reason) during the three years it had not
yielded him a single cent; for this reason heprayed his said attorney to see the way
to sell in by all means at the best price obtainable ... it was thus that the said house
in which, as stated by Junquito on the same letter, had cost him P15,000 was sold to
the respondent for only eight thousand. If in 1889 the house was a heap of ruins, it
seems to us to hazardous to certify solely in view of its present condition, after
under going repairs or having been practically rebuilt, the real condition in which it
was in 1848 that is, forty years before it became ruined specially seems, as
the petitioners expert properly states, in the repair or rebuilding of the property old
or used materials may have been employed which would give it the appearance of
being older than it actual use.
The respondent states in her brief, as though intending to prove the great antiquity
of the gallery in question, that, notwithstanding the fact that the petitioner acquired
his property before she acquired the adjoining building, he has been able to testify
that the said gallery was built by Junita Lichauco or by her predecessor after he had
purchased his property, nor has it been proven that since that time or at any time
previous thereto there had been any disagreement between the owners of the two
properties of account of the gallery in question. Such allegation absolutely lacks
foundation, (1) because it is not true that the petitioner acquired his property prior
the time when Junita Lichauco acquired hers, but entirely on the contrary seems the
petitioner purchased his property on the 9th of May, 1894, and the respondent
acquired hers on the 25th of October, 1889, that is, five years previously; and (2)
because the burden is not on the petitioner to prove on what time the gallery in
controversy was constructed inasmuch as he limits himself to sustaining and

137

defending the freedom of his property, denying the easement of light and view of
the respondent pretends to impose over it. It is a settled doctrine of law that a
property is assumed to be free from all incumbrance unless the contrary is proved.
(Decisions of the Supreme Court of Spain of April 7, 1864, and December 13, 1865.)
The respondent who claims the said easement, basing her claim on the provision of
article 541 of the Civil Code, is obliged to prove the aforementioned gallery, in
which the apparent sign of the easement is made to consist in the present case,
existed at the time the ownership of her property and that of the petitioner were
separated, in October, 1848. And inasmuch as this issue has not been proved, the
claim of the respondents as to the easements of the light and view which the
petitioner does not admit, must of necessity be dismissed.
(b) Opposition of heirs of Francisco L. Roxas. The real terms of this opposition do not
appear well defined. As the Court of Land Registration says in the judgment appeal
from, when this party appeared at the trial stated (fol. 71) that it had no opposition
to offer and only desired that the matter of the easement of right of way,
acknowledged by the petitioner, be clearly established, and that the other rights of
easement which their property holds over the former be respected, not specifying,
however, neither at the time or during the course of the proceedings as to which of
said easements they referred when appealing. Hence the question raised by these
respondents do not appear as clearly determined.
In the absence of due specification of the said points, and inferring in only from the
language of the agreement submitted to the parties to the suit, the Court of Land
Registration assumed that beyond the acknowledged easement of the right of way,
the respondents claimed those of light, view, and drainage, and on such supposition
entered judgment in connection with said easements only. Upon moving for a new
hearing the respondents alleged as a foundation therefore, as stated in the
overruling thereof (p. 9 of the bill of exceptions), that the easement with reference
to balcony had not been acknowledged, and now in setting forth their injuries
before this court they speak to the eaves ...
Admitting, the sake of argument, that all of the above questions were duly set up
and discussed in the court below, the fact is that in the judgment appealed from no
other easements than those with reference to right of way and drainage from the
roof have been allowed in favor of the property of the respondents; therefore, the
easements of light, view, and balconies remain in dispute in the present instance.
The easement with reference to eaves mentioned also in the brief of the
respondents should, in our opinion, be discarded inasmuch as it is included in this
case in the easements of drainage from the roof acknowledged in the judgment
appealed from. (p. 7 of the bill of exceptions).
The Court of Land Registration in order to dismiss the opposition with reference to
the easement of light and view bases its decision on the fact that, the same being

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negative, according to article 533 of the Civil Code, because the owner of the
servient estate is prohibited to do something which he could lawfully do if the
easement did not exist, that time of possession for prescription (and it is a matter of
prescription for the reason that respondents hold no title) should begin to run, not
from the date of the existence of the windows or balconies, but from the day when
the owner of the dominant estate, by means of a formal act, might have prohibited
the owner of the servient estate to do something which he could properly execute if
the easement did not exist; this was never carried out by the opponents or by their
principals as agreed to by the parties at the hearing.
In rebuttal of this portion of the judgment the respondents state in their brief as
follows:
We agree with the trial court that as a general rule the easement with
reference to view is a negative one ...; but we understand that there are cases
in which the easements is meant is positive because it imposes on the owner
of the servient estate the obligation to allow the owner of the dominant estate
to do on the property of the former something which the latter could not
lawfully do if the easement did not exist, ... such as happens in the present
case in which the windows have a balcony projecting over the lot of the
petitioner. In the case of bar there exists the positive fact of windows with
projecting balconies opening overthe land of the servient estate which is not a
right inherent to the dominion of the owner of the dominant estate, but a real
invasion of the right of another, a positive act which limits the dominion of the
owner of the servient estate which, constituting easement, imposes on him
the obligation to permit with balconies projecting over his estate.
According to this no question is raised by the respondents as to the legal nature of
the easement of view (in their brief the easement of light is ignored) which they
acknowledge for the reason that, in general, it is a negative one although in their
opinion there are exceptions where it acquires the nature of a positive easement,
among them, when as in the present case, view is obtained by means of windows
with balconies projecting over the adjoining estate. On page 4 of their brief they
state that the latter facts was agreed to by the parties, which is tacitly contradicted
by the petitioner when denying, on page 14 of his brief, that the word balconies was
used in the agreement as synonymous with projecting windows and differing from
windows, for although, according to the said agreement, they overlook the lot of the
petitioner, they are not, however, over the same, nor is the contrary claimed in
connection therewith by the representative of the respondents.
In reference to the above question the said agreement of facts reads as follows:
(1) That house No. 114, Calle San Jacinto, district of Binondo, this city, owned
by the children of Francisco L. Roxas, adjoining the property of the petitioner,

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underwent alteration in the early part of the year 1882, and ever since that
time it exists as it appears now with windows and views overlooking the lot of
the petitioner, with balconies and eaves from which rainfall drops on the
aforesaid lot.
It seems evident under the terms of this agreement, that the house of the
respondents has balconies, it being immaterial for our point of view that the
word balconies be taken as synonymous with widows or projections, since whether
it be the one or the other the truth is that the agreement does not state that such
balconies are over the lot of the petitioner or overlooking over it, as claimed by the
respondents. Neither would this follow from the mere fact that the said balconies jut
out, because the projecting parts of a building may be constructed, and as a matter
of fact they are generally constructed, over the area of their own ground without
invading the limits of the adjoining length. What actually falls over the estate of the
petitioner according to the agreement is the water dropping from the projecting
eaves of the respondents' house, which is precisely the fact that has originated the
easement of drainage from the roof acknowledged in favor of said house; projecting
eaves, thus the agreement reads, from which part of each water falls on said lot.
Notwithstanding the fact that word eaves, in the language of the agreement, is
preceded by the word balconies, upon both being united by the copulative
conjunction and, it becomes evident that words in italics do not refer nor could they
refer to the balconies for the simple reason that their object is not to shed the
water, a thing which, on the contrary, is done by the eaves.
And that it is the water and not the balconies of the house of the respondents which
falls over or overlooks the lot of the petitioner, is further evidenced by the language
of the other clauses of the agreement in which the ideas are expressed with
precision, from which it may be seen that the proposition over is always in relation
to the fall of the water and not to the balconies. Thus, for example, clause 2 reads
"that it does not appear if the construction of said windows, balconies, and
projecting eaves, as well as that part of the water from the roof of the said
house,fall on the lot now owned by Don Miguel Fabie ...." work that may obstruct
the light, remove the windows or balconies and projecting eaves of the said house
which now belongs to the children of Francisco L. Roxas, or prevent a portion of the
water from the roof of the same from falling on the lot of Miguel Fabie..., neither has
their been on the part of the said Fabie... any act to obstruct said light or windows,
preventing the continuance of the balconies and projecting eaves, or that part of
the water from the roof of the house falling ... on his lot."
Therefore, it does not appear from the agreement which is the only evidence we
have before us, no other having been offered at the hearing, the respondents has
balconies over the land of the petitioner; and as it is, since it has been positively
shown that the said balconies exceed the limit of the lot owned by the former, nor
less that they invade the atmospheric area of the lot belonging to the latter, it

140

follows that, even in accordance with the theory maintained by the respondents
with which on account of its lack of basis, we consider it unnecessary to deal herein
as to its other aspect, the easement of view, which might result in such case from
the existence of the balconies alluded to, would be negative and not a positive one,
because the erection of the same would not constitute, according to their own
statement, an invasion of the right of another, but the lawful exercise of the right
inherent to the dominion of the respondents to construct within their own lot. And
as said easement is negative, it cannot have prescribed in favor of the property of
the respondents in the absence of any act of opposition, according to the
agreement, by which they or their principals would have prohibited the petitioner or
his principals to do any work which obstruct the balconies in question, inasmuch as
said act of opposition is what constitutes the necessary and indispensable point of
departure for computing the time required by law for the prescription of negative
easements (Art. 538, Civil Code).
After the foregoing it is not necessary to say anything further to show the
impropriety of the claim of the respondents in connection with the other easement
of balconies (projiciendi). They claim this easement on the supposition that the
balconies of the house are or look over the lot of the petitioner; therefore,
considering that this fact has not been proven as shown therefor, said pretension
fails and cannot prosper in any way. It is unnecessary to discuss the questions of
law to which said fact might give rise had it been duly proven at the hearing.
For the reason above set forth, the judgment appealed from is affirmed in all its
parts with the costs of this instance against the appellants. So ordered.
G.R. L-No. 2085

(light and view)

August 10, 1909

TIBURCIO SAENZ, plaintiff-appellant,


vs.
FIGUERAS HERMANOS, defendant-appellee.
It appears from the record that the plaintiff and the defendant own adjoining lots
within the municipality of Iloilo; that the defendant had constructed or was
constructing a house of strong materials upon its lot; that the line of the said house
on the side toward the lot belonging to the plaintiff was less than two meters from
dividing line of the two lots; that the said house was of two stories; that on the side
of the house toward the lot of the plaintiff, the defendant in the first story had
placed three windows and in the second story had placed five windows, each
looking directly upon the lot of the plaintiff; and that the defendant had not
obtained the permission of the plaintiff to place the said windows and balconies in
the manner above indicated.

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The defendant filed a general and a special denial. In its special denial the
defendant alleged that its house was being constructed in accordance with the law
and customs of the place.
After the hearing the evidence adduced during the trial of said cause, the lower
court made the following findings of fact:
The plaintiff's lot is now vacant but he intends to build a house thereon for
business purposes, and with that end in view has already deposited some
lumber in said lot. The defendants have constructed a two-story house on
their lot, using the ground floor for stores, and the upper floor as a dwelling.
They have erected said house at a distance of 71 centimeters from the
dividing line at the front part, and at a distance of 70 centimeters at the rear.
The house of the defendants is being put to the use for which it was built. The
defendants have opened three windows on the ground floor of their house, in
the part that overlooks the lot of the plaintiff, each window being 1 meter and
20 centimeters wide and 2 meters high; on the upper floor they have opened
5 windows, each 2 meters and 11 centimeters high and 1 meter and 60
centimeters wide; they have also constructed a balcony at the front part of the
house above the ground floor, opening directly upon the lot of the plaintiff,
and another balcony at the rear part of the house, which up to the present
time opens directly upon the plaintiff's lot, although the defendants state that,
according to the plan, said part is to be closed with boards. All of said windows
are required for the proper lighting and ventilation of said house, and for the
circulation of air therein. The house of the defendants is 23 meters long and
built almost parallel to the dividing line between the plaintiff's lot and that of
the defendants. All of said windows and balconies are at a distance of less
than one meter from the dividing line of the plaintiff's lot and that of the
defendants, and are looking directly over the same.
The plaintiff claims that, under articles 581 and 582 of the Civil Code, the defendant
is prohibited from constructing his house and opening the windows and balconies
looking directly upon his property in the manner above described, and prays that
the court issue an order directing the defendant to close said windows and that the
said defendant be prohibited perpetually from constructing openings in its house
except in conformity with said articles of the Civil Code.
The lower court, after a full consideration of the evidence adduced during the trial
of the cause and after making the above findings of fact, concluded his sentence in
the following language:
In view of the circumstances mentioned above, and although I find that the
windows of the house come within the prohibition contained in article 582 of
the Civil Code, I am of the opinion that the plaintiff is not entitled to the

142

judgment asked for, or for any other judgment in his favor. Therefore, it is
ordered that judgment be entered in favor of the defendant for the recovery of
the costs herein. (Signed) Henry C. Bates, judge of the Ninth Judicial
District.
From this sentence the plaintiff appealed.
No motion was made for a new trial in the court below. The plaintiff excepted only
to the judgment of the lower court, basing his objection upon the ground that the
sentence of the lower court was contrary to the provisions of said article 582, and in
this court insists that he has a right under said provisions of the Civil Code to have
said windows closed and to have the defendant prohibited from making openings in
the side of the house overlooking his yard except those openings provided for under
said article.
Article 581 of the Civil Code is as follows:
ART. 581. The owner of a wall which is not a party wall, adjoining another's
estate, may make in it windows or openings to admit light, at the height of the
ceiling joists or immediately under the ceiling, of the dimensions of thirty
centimeters square, and, in any case, with an iron grate embedded in the wall
and a wire screen.
However, the owner of the house or estate adjoining the wall in which the
openings are made may close them, if he acquires the part ownership of the
wall and should there be no agreement to the contrary.
He may also obstruct them by building on his land or raising a wall adjacent to
that having such opening or window.
Article 582 of the Civil Code provides as follows:
ART. 582. Windows with direct views, or balconies or any similar openings
projecting over the estate of the neighbor, can not be made if there is not a
distance of, at least, two meters between the wall in which they are built and
said estate.
Neither can side nor oblique views be opened over said property, unless there
is a distance of sixty centimeters.
The foregoing provisions of the Civil Code enumerate the conditions under which an
adjoining lot owner may enjoy the easement of light and view. These provisions are
positive and persons attempting to exercise easement of light and view upon
property of adjoining landowners are governed by its provisions. Said article 582
absolutely prohibits the construction of windows with direct views, or balconies or

143

any similar openings projecting over adjoining property, unless there is a distance of
at least 2 meters between the wall in which they are built and the adjoining
property. The evidence adduced during the trial in the court below was not brought
here. Therefore, we are governed as to the facts by the findings of the lower court.
The lower court found that the distance between the wall of the house of the
defendant and the dividing line between the two lots was only 71 centimeters. The
defendant, therefore, has violated the provisions of said article 582 by building in
his house nearer the line of the property of the plaintiff than a distance of 2 meters.
Said article 581 provides the character of windows or openings in a wall adjoining
the property of another when such wall is constructed nearer the dividing line of the
two properties than 2 meters. In the present case the defendant constructed his
house so that the wall looking upon the property of the plaintiff was less than 2
meters from the dividing line. He can, therefore, only construct such windows as are
provided for in said article 581.
The lower court bases his conclusions largely upon the fact that the plaintiff had
stood by and permitted the defendant to construct, or partially construct, his house
without having made any objections, as well as the further fact that the plaintiff had
received no damages whatever except purely sentimental damages. The first
ground would seem to imply that the lower court was of the opinion that the
plaintiff was estopped from insisting upon his rights under the law, he having
permitted the defendant to partially construct the house in the manner above
described. There is nothing in the decision of the lower court which shows that the
plaintiff at any time before the commencement of the present action knew that the
house of the defendant was being constructed in violation of the provisions of said
above-quoted articles. It was the duty of the defendant to construct his house in
accordance with the provisions of the law. The plaintiff was not obliged to stand by
for the purpose of seeing that the defendant had not violated the law. There are
many cases where the doctrine of estopped may be invoked against one who claims
a right where he has stood by and either expressly or tacitly given his consent to a
violation of his right by another. This doctrine, however, can not be invoked where
the law imposes an express duty upon the other person and prohibits him from the
exercise of certain acts in a certain way. The defendant only can blame himself for
not constructing his house in the manner provided for by law under the facts in the
present case. (See decision of the supreme court of Spain, June 6, 1892; 4 Manresa,
734, 735, 736-739; 9 Alcubilla, 541.)
Under all of the facts and the law presented in the present case, we are of the
opinion, and so hold, that the defendant is not entitled to the easement of light and
view which the windows and openings, which he was made in the house in
question, give him, and, because of the fact that he has constructed his houses
nearer than 2 meters to the dividing line between his property and the property of
the plaintiff, he is only entitled to the easement of light and view provided for in

144

said article 581 above quoted. Therefore, let a judgment be entered reversing the
judgment of the lower court with costs, and directing the defendants, within a
period of thirty days from the receipt of the notice of this decision, to close the said
openings and windows, in the said house, looking directly upon the property of the
plaintiff. So ordered.
G.R. No. 36048

September 24, 1932

ALEJANDRO MASONGSONG, plaintiff-appellee,


vs.
VICTORIA FLORES, defendant-appellant.
The question here to be decided is whether an alley constructed in accordance with
the Revised Ordinances of the City of Manila, and open to the public, falls within the
provisions of article 584 of the Civil code, making codal article 582 concerning
easements of light and view inapplicable to buildings separated by a public
thoroughfare.
The facts as stipulated may be summarized in the following manner: Alejandro
Masongsong is the owner of a lot with Torrens title, situated in the City of Manila.
Felipe Cruz, the husband of Victoria Flores, is the owner of an adjoining lot. On the
lot of Victoria Flores is a house which was begun to be constructed on July 3, 1925,
and was completed on November 10, 1926. This house has windows overlooking
the adjoining property of Masongsong, leaving a distance of less than two meters
between the two houses. Separating the two houses is an alley which on Exhibits A
and B, the latter a sketch prepared by the department of engineering and public
works of the City of manila, is denominated a public alley. The Torrens title of
Masongsong extends over this alley. When Masongsong, on June 22, 1928, applied
to the city engineer for a permit to construct a house on his property, he bound
himself to the following conditions: (1) That the building shall abut or face on the
officially approved private alley as shown on the location plan; and (2) that this
approved private alley shall be opened to the public and with its approved width
preserved (3 m.) shall be maintained and kept in good repair by the grantee of this
permit, his heirs, executors and assigns and shall never be closed by any person so
long as there is a building or structure, abutting, facing or having access to said
private alley.
Article 582 of the Civil Code provides that "no windows or balconies or other similar
projections which directly overlook the adjoining property may be opened or built
without leaving a distance of not less than two meters between the wall in which
they are built and such adjoining property." Article 584 of the Civil Code makes the
provisions of article 582 inapplicable "to buildings separated by a public
thoroughfare" (una via publica). As intimated by Manresa in his commentaries on
article 584, its dispositions must be harmonized with the municipal ordinances. In
this connection, the Revised Ordinances of the City of Manila, in section 103, in
speaking of the issuance of permits for the erection of buildings, provides: "That the
building shall abut or face upon a public street or alley or on a private street or alley
which has been officially approved: And provided, further, That any private street or
alley open in an interior lot for the purposes of this section, once officially approved,

145

shall be open to the general public, and with its approved width preserved, shall be
maintained and kept in good repair by the grantee of the permit, his heirs,
executors, and assigns, and shall never be closed by any person so long as there is
a building or other structure abutting or facing upon such private street or alley."
The same Revised Ordinances define, in section 35, an alley as "any public
thoroughfare less than seven meters and fifty centimeters in width between
established lines."
It will not escape notice, in the first place, that in the sketch of location of the house
of Victoria Flores, the department of engineering and public works of the City of
Manila denominated the opening between the houses of Masongsong and Flores as
a public alley. In the second place, it will be noticed that in the application of
Masongsong to construct his house, it was agreed that the approved private alley
shall be opened to the public. In other words, the so-called private alley is not in
fact exactly private. For purposes of classification, we have private alleys opened to
the public and public alleys, the main difference appearing to be that first is
constructed by private funds and the second by public funds, but with no practical
difference as to use. The first is as much public as the latter, for anyone can travel
them who has occasion to and no more can be said of the latter. When the applicant
for a house to be constructed on an interior lot agrees to have a private alley
opened to the public run past his house, he accepts the burdens of the alley as well
as its benefits.
It is also proper to observe that, although the house of Victoria Flores was begun to
be constructed on July 3, 1925, and received a certificate of final inspection from
the City of Manila on November 10, 1926, legal action was only commenced to
enforce the right of Masongsong on September 16, 1929. This tolerance came
dangerously near to creating an estoppel.
Answering the question at issue, we hold that a private alley open to the public,
under the circumstances of this case, falls within the exception provided by article
584 of the Civil Code to article 582 thereof, and that accordingly the plaintiff has no
legal cause of action.
Judgment reversed, without special pronouncement as to costs in either instance.
Separate Opinions
VILLAMOR, J., dissenting:
I dissent. In my opinion, although the alley in question is open to the public, yet it
has not for that reason become a public alley, inasmuch as the owner of the land,
Alejandro Masongsong, has bound himself to maintain and keep it in good repair
and never close it so long as there is a building or structure abutting, facing or
having access to said private alley, and therefore the moment such building or
structure should cease to exist the owner may close said private alley.
G.R. No. L-20786

(voluntary easements)

October 30, 1965

146

IN RE: PETITION FOR CANCELLATION OF CONDITION ANNOTATED ON


TRANSFER CERTIFICATE OF TITLE No. 54417, QUEZON CITY, DRA. RAFAELA
V. TRIAS, married to MANUEL SIA RAMOS, petitioner-appellee,
vs.
GREGORIO ARANETA, INC. oppositor-appellant.
In May 1963, Rafaela Trias, married, filed in the Rizal court of first instance, a
petition to cancel from her Torrens certificate of title, the annotation appearing on
its back which reads as follows:
5. That no factories will be permitted in this section.
She alleged she was the registered owner of this lot in Quezon City; that she wanted
the cancellation, not for the purpose of erecting a factory thereon, but merely to
facilitate approval of a loan she had applied for; that the restriction was illegal,
because it impaired the owner's dominical rights; and that it was a mere surplusage
anyhow, because there are zoning ordinances prohibiting establishment of factories
in that district.
Acting on the petition, the court granted it, endorsing her views, particularly the one
referring to surplusage due to a zoning ordinance.
Two weeks later, Gregorio Araneta, Inc. moved for reconsideration of the order,
alleging: (a) that the condition had been inserted in the title pursuant to a contract
of sale between it and Rafaela's predecessor-in-interest; (b) that it received no
timely notice of petition; (c) that the order disregards contractual rights and
obligations; (d) that the prohibition against factories was valid, and not a
surplusage; and (e) that the Court had no jurisdiction to act on the petition.
Upon denial of its motion to reconsider, Gregorio Araneta, Inc. appealed to this
Court.
There are no issues of fact. The parties agree: (1) that the lot was part of a
subdivision and originally belonged to J.M. Tuason & Co. Inc. which corporation upon
selling it (thru Araneta Inc.) to a purchaser (Garcia Mateo and Deogracias Lopez),
imposed the prohibition; that such prohibition was accordingly printed on the back
of the transfer certificate issued to the purchaser; (2) after several transfers, always
subject to the prohibition, Rafaela acquired the lot, again subject to the limitation
which was repeated on the back of her certificate; (3) that upon receiving her
certificate, she noticed the prohibition; and so, arguing that it infringes the owner's
right to use her land, she asked for its cancellation; (4) as already stated, she
obtained relief.
The questions at issue here are: (a) the validity of the prohibition or limitation; (b)
the effect of the zoning ordinance.

147

Such prohibition is similar to other conditions imposed by sellers of subdivision lots


upon purchasers thereof, in and around Manila. It is in reality an easement, 1 which
every owner of real estate may validly impose under Art. 594 of the Civil Code or
under Art. 688 of the New Civil Code, which provides that "the owner of a piece of
land nay establish thereon the easements which he may deem suitable, ... provided
he does not contravene the law, public policy or public order".
No law has been cited outlawing this condition or limitation, which evidently was
imposed by the owner of the subdivision to establish a residential section in that
area, or the purpose of assuring purchasers of the lots therein that the peace and
quiet of the place will not be disturbed by the noise or smoke of factories in the
vicinity.
The limitation is essentially a contractual obligation which the seller, Tuason & Co.,
Inc. (thru Araneta Inc.) imposed, and the purchaser agreed to accept. Of course, it
restricts the free use of the parcel of land by the purchaser. However, "while the
courts have manifested some disfavor of covenants restricting the use of property,
they have generally sustained them where reasonable, and not contrary to public
policy ... ." (14 Am. Jur. 616.).
"The validity of building restrictions limiting buildings to residences, ... restrictions
as to the character or location of buildings or structures to be erected on the land ...
has been sustained. (14 Am. Jur. 617, citing cases.)
Now, it is proper for Tuason & Co., Inc. (thru Araneta, Inc.) to oppose the elimination
of the condition from the certificate of title, because, if it is erased, a purchaser who
gets a new certificate of title without the annotation, will hold the lot free from the
encumbrance, and might build a factory there. 2 As declared by sec. 39 of Act 496 as
amended, "every purchaser of registered land ... shall hold the same free from all
encumbrances except those noted in said certificate."
The existence of a zoning ordinance prohibiting factories in the area is immaterial.
The ordinance might be repealed at any time; and if so repealed, this prohibition
would not be enforceable against new purchasers of the land, who may be ignorant
thereof. The same remark applies to Rafaela's promise not to build a factory on the
lot: new owners might not be bound.
A problem might arise if and when the ordinance is amended so as to convert the
area into an industrial zone impliedly permitting factories. Probably, the limitation
might still bind the lot owner (with annotation) ; but it is not the present issue, and
we do not now decide it.
IN THIS VIEW OF THE CASE, it becomes unnecessary to take up the other questions
discussed by appellant, regarding notice and jurisdiction. Neither do we pass on the
point raised by appellee concerning appellant's personality to object to the

148

cancellation; because anyway, the proper party in interest (J.M. Tuason & Co., Inc.)
could be impleaded as substitute party on appeal. (Alonzo v. Villamor, 16 Phil. 315).
The appealed order is reversed, and the petition to cancel is denied, with costs
against petitioner. So ordered.

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