SECOND DIVISION

[G.R. No. 7386. March 30, 1912.]

THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, petitioner-appellee, vs. PEDRO P.
ROXAS, opponent-appellant.
Sanz & Opisso, for appellant.
William A. Kincaid and Thomas L. Hartigan, for appellee.
SYLLABUS
1. REALTY; EASEMENTS; RIGHT OF WAY. Although a road leading through an estate has been
used by the tenants of another estate, by people attending a house of public worship, and by the
public generally for a great number of years, no easement is thereby created when the facts show
that such use has been merely for convenience. To hold otherwise would destroy all neighborhood
accommodations in the way of travel, as no one would incur the danger of encumbering his estate
with such a burden for the mere accommodation of his neighbors.
2. ID.; ID.; ID.; PRESCRIPTION. To establish the easement of right of way by prescription in
those cases where the use is for convenience merely, the presumption of permissive use or license
must be overcome.
DECISION
TRENT, J p:
This appeal involves only a right of way claimed by the appellant Pedro P. Roxas, the owner of
the dominant estate, across parcel L, the property of the appellee, to Calle Tejeron, a distance of
about 100 meters. The servient estate is bounded on the north by an estero; on the west by the
dominant estate; on the southwest by Calle Tejeron; and on the west by lands of Francisco Managan.
The eastern line, which joins the dominant estate, is 265 meters long. The appellant claims a right of
way starting across parcel L at a point 198 meters from the southern extremity of this line. During the
trial of this case in the court below the parties entered into the following agreement:
"It is admitted as a question of fact that the road between the Hacienda de San
Pedro Macati and Calle Tejeron, which, according to the witness Leopoldo Areopaguita,
was formerly a meter and a half or two meters wide, although at present it has a greater
width, has been used from time immemorial by the tenants of the Hacienda de San Pedro
Macati for the passage of carts entering and leaving the Hacienda."
In addition to the admitted facts as above set forth, the testimony shows that the road in
question is now some 4 meters wide; that since time out of mind there has existed upon lot L near the
middle, and also very near this road, a small church; that the faithful use said road in going to this
place of worship and that said road is not only used by the tenants of the appellant but also by the
people living in the sitio of Suavoy.
It is admitted by both parties that the tenants of the dominant estate have used the road in
question since time immemorial for carts, both for entering and leaving the hacienda. It is also an
established fact that the said hacienda (the dominant estate) is partly bounded on the south by Calle
Tejeron. The point where it is claimed that this right of way starts across lot L is only 198.25 meters
from the said street. So the claim of the appellant cannot be that the right of way exists by necessity
growing out of the peculiar location of his property, but simply that it arises by prescription, founded
alone upon immemorial use by his tenants.

The result is that the road which the appellant seeks to have declared a right of way for the
benefit of his hacienda has been used for a great number of years by the members of the appellee's
church to go to and from the ermita, and also by the appellant's tenants, and by other people. And
furthermore, while it is true that the appellant's tenants have used this road for carts as above stated,
yet it has not been shown that such use was absolutely necessary in order to cultivate the dominant
estate, but, on the contrary, it clearly appears that the said tenants crossed lot L merely on account
of convenience, as they could have reached the public highway by going in other directions,
especially south, only 198 meters. Therefore, the admitted and established facts show (1) that the
use of the road by the tenants of the appellant in this manner and under these circumstances has not
been such as to create an easement by prescription or in any other manner; and (2) that the use of
said road by all has been by permission or tolerance of the appellee.
Where a tract of land, as in the case at bar, attached to a public meeting house such as
the ermita is designedly left open and uninclosed for the convenience of the members or
worshippers of that church, the mere passage of persons over it in common with those for whose use
it was appropriated is to be regarded as permissive and under an implied license, and not adverse.
Such a use is not inconsistent with the only use which the proprietor thought fit to make of the land,
and until the appellee thinks proper to inclose it, such use is not adverse and will not preclude it from
enclosing the land when other views of its interests render it proper to do so. And though an adjacent
proprietor may make such use of the open land more frequently than another, yet the same rule will
apply unless there be some decisive act indicating a separate and exclusive use under a claim of
right. A different doctrine would have a tendency to destroy all neighborhood accommodations in the
way of travel; for if it were once understood that a man, by allowing his neighbor to pass through his
farm without objection over the pass-way which he used himself, would thereby, after the lapse of
time, confer a right on such neighbor to require the pass-way to be kept open for his benefit and
enjoyment, a prohibition against all such travel would immediately ensue. And again, it must be
remembered that a right of way, like the one sought to be established in the case at bar, is a charge
imposed upon real property for the benefit of another estate belonging to a different owner. Such a
right of way is a privilege or advantage in land existing distinct from the ownership of the soil; and
because it is a permanent interest in another's land with a right to enter at all times and enjoy it, it
can only be founded upon an agreement or upon prescription. And when the latter is relied upon in
those cases where the right of way is not essential for the beneficial enjoyment of the dominant
estate, the proof showing adverse use which is an affirmative claim must be sufficiently strong
and convincing to overcome the presumption of permissive use or license, as such a right of way is
never implied because it is convenient.
For these reasons, the judgment appealed from denying the appellant's claim to a right of way
across lot L is affirmed, with costs against the appellant.
Carson, J., concurs.
Johnson and Moreland, JJ., concur in the result.
TORRES, J., concurring:
I think that the decision should be affirmed in so far as it orders the registration of the land,
but with express recognition of the right of way or road across the land, to this extent reversing the
portion overruling the objection.
||| (Roman Catholic Archbishop of Manila v. Roxas, G.R. No. 7386, [March 30, 1912], 22 PHIL 450-453)
FIRST DIVISION
[G.R. No. 9989. March 13, 1918.]

EDUARDO CUAYCONG ET AL., plaintiff-appellee, vs.

AL., defendants-appellants.
Ruperto Montinola and Aurelio Montinola for appellants.
No appearance for appellees.

RAMONA

BENEDICTO

ET

SYLLABUS
1. ROADS AND STREETS; EASEMENTS; REGISTRATION OF LAND; TORRENTS TITLE. Unless is
made to appear upon the certificate of title that the boundaries of any given highway, way, or private
way upon the land have been determined, the right to such highway, way, or private way is
unaffected by the registration of the title.
2. REALTY; ENCUMBRANCES; PRESUMPTIONS. Real property is presumed to be free from
liens and encumbrances.
3. ROADS AND STREETS; UPKEEP BY GOVERNMENT; PRESUMPTION. Where it appears that a
road has been kept in repair by private enterprise and that the Government has not contributed to the
cost of its construction or maintenance, such road will be presumed to be private.
4. ID; PRESUMPTION; USER; TOLERANCE; PUBLIC USE. The mere fact that a tract of land has
been used for a long time as a road will not warrant the presumption that it has been dedicated to the
public.
5. REALITY; PRESCRIPTION; POSSESSION; TOLERANCE . Possession, to constitute the
foundation of a perspective right, must be possession under claim of title. Acts of a possessory
character performed by one who holds by the mere tolerance of the owner cannot be made the basis
of the perspective acquisition of rights.
6. IMMEMORIAL POSSESSION; EVIDENCE. Under the Spanish law the proof of immemorial
possession required something more than the memory of living witnesses.
7. EASEMENTS OF WAY; USER; TOLERANCE; PRESCRIPTION. The permissive use by an
adjacent proprietor of a road or path over the land of another no matter how long continued, will not
create an easement of way prescription.
DECISION
FISHER, J p:
The issues in this case relate to the right of plaintiff to make use of two roads existing on the
Hacienda Torena, a tract of land in the municipality of Victorias, Negros Occidental, the property of the
defendants, Blasa Benedicto and Ramona Benedicto. One of these roads is referred to in the
proceedings as the Nanca-Victorias road and the other as the Dacuman-Toreno road. The court of First
Instance held that those of the plaintiffs who claimed to be entitled to make use of the DacumanToreno road had failed to establish the asserted right, and dismissed the action as to them. From this
decision they appealed to this court but, their brief not having been filed within the time prescribed
by the rules, their appeal was dismissed, on motion of defendants, by resolution dated February 14,
1916. Consequently, the issues presented on this appeal are limited to those which relate to the
rights of the parties with respect to the Nanca-Victorias road, and the determination of the
correctness of the decision of the court concerning that part of the controversy submitted to its
decision.
The allegations in the complaint with respect to the Nanca-Victorias road are that the
appellees, Eduardo Cuaycong, Lino Cuaycong, and Eulalio Dolor, are the owners of a group of

hacienda situated between the southern boundary of the Hacienda Toreno and the barrio of Nanca, of
the municipality of Saravia, and that the appellees Silverio Ginoo, Gervasio Ascalon, and Juan
Ledesma, are the lessees of part of said hacienda; that for more than twenty years the appellees and
their predecessors in interest have made use of the Nanca-Victorias road, which crosses the Hacienda
Toreno, openly, publicly, and continuously, with the knowledge of the owners of the said hacienda, for
the purpose of conveying the products of their hacienda to the town of Victorias and to the landing
place there situated, and for the purpose of transporting supplies from those points to their
haciendas, making use of the said road by means of carts, carabaos, and other usual means of
transportation; that there is no outlet to a public road from the hacienda occupied by these plaintiffs,
the only road and way by which the products of the plaintiffs' property can be taken to the town of
Victorias and to the landing place there being across the Hacienda Toreno by the road marked on the
plan attached to the complaint; that on the fifteenth day of November, 1912, the defendants closed
the road in question at the point at which it crosses the Hacienda Toreno, and refused to permit
plaintiffs to continue using it; that plaintiffs were about to commence to grind their crop of sugar
cane, and that, if prevented from transporting their sugar across the Hacienda Toreno to their point of
embarcation, would suffer damages difficult to estimate. Upon these averments of fact plaintiffs
prayed for a judgment that they are entitled to use the road in question as they have been using in
the past, and that a perpetual injunction be issued against plaintiffs restraining them from impeding
such use. Upon the filing of the complaint, plaintiffs moved the court to issue a preliminary injunction
restraining defendants from interfering with the use of the road during the pendency of the suit,
which motion was granted by the court.
Defendants in their answer put in issue all the special averments of the complaint, as above
set forth, and by way of counterclaim and special defense, averred that the road crossing the
Hacienda Toreno, over which plaintiffs claim the right of passage, is the private property of
defendants; and, further, that they have not refused plaintiffs permission to pass over this road but
have required them to pay toll for the privilege of doing so. Defendants also claimed damages for the
use of the road by plaintiffs during the pendency of the suit, alleging that the preliminary injunction
had been improvidently issued upon false statements contained in the verified complaint filed by
plaintiffs.
The case was tried in July, 1913. The court on December 8, 1913, rendered judgment,
dismissing the complaint with respect to the plaintiffs Felix Suarez, Probo Jereza, Enrique Azcona, and
Melecio Pido, these being the plaintiffs who claimed the right to use the Dacuman-Toreno road. With
respect to the Nanca-Victorias road, the court held that it was a public highway over which the public
had acquired a right of use of immemorial prescription, and ordered the issuance of a perpetual
injunction against plaintiffs, restraining them from interfering in any manner with the use of the said
road.
The conclusion of the court with respect to the facts affecting the Nanca-Victorias road are as
follows:
"Turning to a consideration of the evidence relative to the Nanca-Victorias road we
find incontestable proof that it has been in existence for at least forty years. That the
hacenderos located in the southwestern section of Victorias and the public generally
passed over it freely and that it was used for all purposes of transportation of farm
produce, animals, etc. and by pedestrians as well as carromatas and other conveyances
without break or interruption until two or three years ago when the defendants
announced that the road was private and that those who wished to pass over it with
sugar carts would be obliged to pay as toll of ten centavos-all-other vehicles, it appears,
were permitted to pass free of charge. This arrangement seems to have existed during

the years of 1911 and 1912 and part of 1913, the money being collected apparently from
some hacenderos and not from others. There is some reason to believe from the
evidence presented by defendants themselves that the practice of making these
payments to hacienda 'Toreno' originated in an attempt to raise a fund for the repair of
the road. There is no evidence that any other hacenderos between Nanca and Victorias or
any other person made any attempt to close the road or to collect toll. On the contrary
the road appears to have been repaired by the hacederos when it needed repairing and
everyone used it on equal terms until the defendants in 1910 or 1911 interposed the
objection that the road in dispute was private. This we think is a fair deduction from the
evidence and although it is asserted that toll was collected at an earlier date by the late
Leon Montinola, brother of the defendant Ruperto Montinola, there is no tangible
evidence that this was so and all the circumstances are strongly indicative of the fact
that toll has been paid only during the years of 1911, 1912, and part of 1913."
The request presented by the assignment of error are in effect:
(a) Is the Nanca-Victorias road at the point at which it traverses the Hacienda Toreno a public
highway or not?
(b) If it be held that the road in question is not a public highway, have plaintiff proven their
acquisition of an easement of way over the Hacienda Toreno at the point traversed by the road in
question?
The trial judge, in holding that the road in question is public, bases his conclusion upon the
fact, which he deems to have been proven, that the road has been in existence "from time
immemorial," and had been "continuously used as a public road . . . and open to public as such for
thirty or forty years . . . until . . . the defendants undertook to claim it as private and to collect toll for
the passage of carts." (Bill of Exceptions, p. 56.) There is no doubt that for he past thirty or forty years
a road has existed between the former site of the town of Victorias and the barrio of Nanca, of the
municipality of Saravia, and that road crosses defendants' hacienda. It is also true that during this
period the plaintiffs and their predecessors in the ownership of the hacienda now held by them have
made use of this road for the purpose of going and coming from their haciendas to the town of
Victorias; but the question is whether this use was limited to the plaintiffs, and their tenants and
employees, or whether it was, as held by the lower court, a use enjoyed by the public in general.
Plaintiffs produced only two witnesses, Segundo de Leon (stet. notes, pp. 21-22) and Eduardo
Cuaycong, (stet. notes, pp. 27-33) to testify as regards the use of the Nanca-Victorias road. Several
other witnesses testified on behalf of plaintiffs, but their testimony relates to the Dacuman-Toreno
road, which is not involved in this appeal. We have carefully read the testimony of the witnesses Leon
and Cuaycong, given upon their direct and cross examination, but we have been unable to find that
either of them has testified that the road in question was ever used by the public in general. These
witnesses testified with regard to the use of the road by the present and former owners and
occupants of the estates of Bacayan, Esperanza, Alacaigan, Pusot, and Dolores for the transportation
of the products of these estates to the town of Victorias, and of supplies and agricultural implements
from Victorias to the haciendas, but neither of them testified expressly that any other use had been
made of said road. Nevertheless, it may be reasonably inferred from the testimony of these witnesses
that all persons having occasion to travel between Victorias and the haciendas of Bacayan,
Esperanza, Alacaigan, Pusot, and Dolores, whether or not they were owners, tenants, or employees of
said estates, made use of the road now in dispute, crossing the Hacienda Toreno, and to this limited
extent it may be said that the public made use of the road, but there is nothing in the evidence to
indicate that the so-called public use extended beyond this.

Apart from the fact that there is no direct evidence to support the finding of the court
concerning the general public use of the road in dispute, the record contains data strongly tending to
show that when the complaint was filed plaintiffs did content that the road was a public highway, but
merely contended that they had acquired by prescription an easement of way across the Hacienda
Toreno. For example, the action is entitled an "action concerning a right of way." (Bill of Exceptions,
pp. 64 and 65.) It is not averred in the complaint averred in the complaint that the road in question
was used by the public. On the contrary, it is averred that it was used by the plaintiffs and their
predecessors. The averment in paragraph 8 of the complaint that the plaintiff have no other "outlet to
a public road" than that which they have been accustomed to use by going to the town of Victorias
also shows that when they commenced this action they had in mind the provisions of articles 564, et
seq. of the Civil Code, which relate to the method of establishing the compulsory easement of way.
The owners of an existing easement, as well as those whose properties are adjacent with a public
road, have no occasion to invoke these provisions of the Code, which relate to the creation of new
rights, and not the enforcement of rights already in existence.
It is true that in the opening statement made to the court, counsel for plaintiffs, who was not
the same attorney by whom the complaint was signed, stated that plaintiffs contend that the road in
question is public, but as no evidence was introduced tending to establish this contention concerning
the Nanca-Victorias road, counsel for defendants had no occasion to object upon the ground that such
testimony was not relevant to the averments of the complaint. No evidence was taken to indicate that
at any time since the road in question has been in existence any part of the expense of its upkeep has
been defrayed by the general government, the province, or the municipality. The trial judge said upon
this subject:
"It is also true whatever repairs were made on the road were made irregularly. The
municipality of Victorias had no funds to devote to the construction and repair of road,
and the upkeep of the road depending entirely therefore on the initiative of the persons
who used it, was attended to only at such times as repairs were absolutely necessary."
(Bill of Exceptions, p. 49.)
The court also held that appears from the government grant issued in 1885 to the original
owner of the hacienda adjacent to the Hacienda Toreno on its western boundary, that the NancaVictorias road at that time separated that estate from the Jalbuena Hacienda, and that these facts
constitute "circumstantial evidence that the document to which the court refers, and we agree that
the road in question existed in 1885; but we do not believe that the document in question proves that
the said road was a public highway.
Another circumstance established by the evidence, and which is of some importance in the
determination of this issue, is that although the defendants closed the Nanca-Victorias road in the
month of February, 1911, and since that time have collected toll from persons passing over it with
carts loaded with sugar, including those belonging to several of the plaintiffs, nothing was done by
them to prevent the continuation of this commenced. It is natural to assume that if plaintiffs and
considered that the road in question was public, they would have protested immediately against the
action of the defendants, and would have either commenced a civil action, as they subsequently did,
or would have brought about a prosecution under section 16 of Act No. 1511.
Upon the evidence taken and admission contained in the pleadings and those made during the
course of the trial we consider that the following findings are warranted:
1. The town of Victorias has always been the shipping point of the products of the Hacienda
Toreno, and of the haciendas of appellees, as we place from which supplies were brought to those
properties.

2. For thirty or forty years before the commencement of the suit a wagon road, herein called
the Nanca-Victorias road, has been in existence, connecting the haciendas of appellees with the town
of Victorias, and this road traverses the property of defendants. Since the removal of the town of
Victorias to a new site the Nanca-Victorias road has been used by appellees in travelling between
their properties and the provincial road which crosses the Hacienda Toreno from east to west.
3. No public funds have at any time been expanded on the construction or upkeep of the
Nanca-Victorias road, but from time to time work has been done on it by the laborers employed by the
present and former owners of the Hacienda Toreno and the haciendas owned by the appellees and
their predecessors in title.
4. The Nanca-Victorias wagon road, including that part of it which crosses the Hacienda Toreno,
has for thirty-five or forty years been used by the appellees and their predecessors in title for the
transportation, by the usual means, of the products of their estates to their shipping points in or near
the town of Victorias, and the transportation to their estates of all supplies required by them, and has
been used by all persons having occasion to travel to and from all or any of the estates now owned by
the appellees.
5. The use of the Nanca-Victorias road in the manner and by the persons above mentioned was
permitted without objection by the owners of the Hacienda Toreno until the year 1911, when they
closed it, and began charging a toll of 5 centavos for each cart which passed over the road, including
carts belonging to the appellants, until restrained from continuing to do so by the preliminary
injunction granted in this case.
6. The Nanca-Victorias road constitutes the only outlet from the estates of appellants to the
nearest public road which is the provincial road which crosses the Hacienda Toreno from east to west.
Upon these facts the questions of law to be decided are:
(a) Is the Nanca-Victorias road a public highway?
(b) If the Nanca-Victorias road, or that part of it which crosses the Hacienda Toreno, is not a
public highway, is it subject to a private easement of way in favor of the appellees?
The defendants are the owners of the Hacienda Toreno under a Torrens title issued in
accordance with the Land Registration Act, conferring to them its absolute ownership, subject only to
the limitations of paragraph four of section 39 of said Act. It is admitted that there is no annotation on
the certificate of title regarding the road here in question, either as a "public road" or a a "private way
established by law" and, therefore, the questions presented by this appeal are to be determined
precisely as they would be had the Hacienda Toreno not been brought under the operation of the Land
Registration Act. The plaintiffs being the owners of the property in question, the presumption of law is
that it is free from any lien or encumbrance whatever, and the burden therefore rests upon plaintiffs
to establish the contrary. As this court said in the case of Fabie vs. Lichauco and the children of
Francisco L. Roxas (11 Phil. Rep., 14):
"It is a settled doctrine of law that a property is assumed to be free from all
encumbrance unless the contrary is proved."
There is admittedly no evidence to show that the land occupied by the road here in question
was at any time conveyed to the general government or any of its political subdivisions by the
presents or any of the former owners of the Hacienda Toreno. There is no evidence, even remotely,
tending to show that the road existed prior to the time when the property now known as the Hacienda
Toreno passed from the State into private ownership. The record fails to disclose any evidence
whatever tending to show that the Government has at any time asserted any right or title in or to the
land occupied by the road, or that it has incurred any expense whatever in its upkeep or construction.
The Civil Code defines as public roads those which are constructed by the State (art. 339), and a
provincial and town roads those " the expense of which is borne by such towns or provinces." (Civil

Code, art. 344.) While it is not contended that this definition is exclusive, it does show that during the
Spanish regime, under normal conditions, roads which were public were maintained at the public
expense, and that the fact that at no time was any expense incurred by the Government with respect
to the road here in question tends strongly to support the contention of the defendants that it is
private way.
During the Spanish regime the law required each able bodied citizen not within one of the
exempted classes to work a certain number of days in each year, his labor to be devoted to "services
of general utility" to the municipality of his residence. (Royal Decree of July 11, 1883, Art. 5.) Under
this Decree and the Regulations for its enforcement (Berriz, vol. 11, 258) the greater part of the work
on the public roads of the Islands was accomplished. Had the road here in question been a public way,
it is reasonable to assume that the polistas of the town of Victorias would have been employed in
maintaining it. It is most significant that no mention is made in the testimony of the plaintiffs'
witnesses of any work of this character having been done on the road at any time, particularly in view
of the fact that their attention was drawn to this point. (Stet. notes, pp. 8, 10, 11, 12, 13, and 14.)
The evidence shows that the repairs were made by the owners of the estates benefited by the
road, and by their laborers, as a purely voluntary act for their own convenience and interest. There
being no evidence of a direct grant to the government of the land occupied by the road in question or
that any Government funds or labor were expended upon it, the question presents itself whether the
use to which the road has been put was such as to justify the conclusion of the lower court that it has
become public property. There being no evidence that the original use of the road by plaintiffs'
predecessors was based upon any express grant of the fee to the road or of an easement of way, or
that it began under the assertion of a right on their part, the presumption must be that the origin of
the use was the mere tolerance or license of the owners of the estates affected.
This being so, has that merely permissive use been converted into a title vested in the public
at large, or in the plaintiffs by reason of their ownership of the land beneficially affected by the use?
Had it been shown that the road had been maintained at the public expense, with the
acquiescence of the owners of the estates crossed by it, this would indicate such adverse possession
by the government as in course of time would ripen into title or warrant the presumption of a grant or
of a dedication. But in this case there is no such evidence, and the claims of plaintiffs, whether
regarded as members of the public asserting a right to use the road as such, or as persons claiming a
private easement of way over the land of another must be regarded as resting upon the mere fact of
user.
If the owner of a tract of land, to accommodate his neighbors or the public in general, permits
them to across his property, it is reasonable to suppose that it is not his intention, in so doing, to
divest himself of the ownership of the land so used, or to establish an easement upon it, and that the
persons to whom such permission, tacit or express, is granted, do not regard their privilege of use as
being based upon anything more than the mere tolerance of the owner. Clearly, such permissive use
is in its inception based upon an essentially revocable license. If the use continues for a long period of
time, no change being made in the relations of the parties by any express or implied agreement, does
the owner of the property affected lose his right of revocation? Or, putting the same question in
another form, does the mere permissive use ripen into title by prescription?
It is a fundamental principle of the law in this jurisdiction concerning the possession of real
property that such possession is not affected by acts of a possessory character which are "merely
tolerated" by the possessor, or which are due to his license (Civil Code, arts. 444 and 1942). This
principle is applicable not only with respect to the prescription of the dominium as a whole, but, to the

prescription of right in rem. In the case of Cortes vs. Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court
said:
"The provision of article 1942 of the Civil Code to the effect that acts which are
merely tolerated produce no effect with respect to possession is applicable as much to
the prescription of real rights as to the prescription of the fee, it being a glaring and selfevident 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 respect to possession, at 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 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." (See also Ayala de Roxas vs. Maglonso, 8 Phil. Rep., 745;
Municipality of Caceres vs. Director of Lands and Roman Catholic Bishop of Nueva
Caceres, 24 Phil. Rep., 485.)
Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be
possession under claim of title (en concepto de dueo), to use the common law equivalent of the
term, it must be adverse. Acts of possessory character performed by one who holds by mere
tolerance of the owner are clearly not en concepto de dueo, and such possessory acts, no matter
how long so continued, do not start the running of the period of prescription.
A similar question was presented in the case of the Roman Catholic Archbishop of Manila vs.
Roxas (22 Phil. Rep., 450), in which case it appeared that Roxas, the owner of the Hacienda de San
Pedro Macati, claimed a right of way across the property of the church to Calle Tejeron, a public street
of the town of San Pedro Macati. The proof showed that the road in question had been used by the
tenants of the Hacienda de San Pedro Macati for the passage of carts in coming and leaving the
hacienda "from time immemorial," and further that the road had been used for time out of mind, not
only by the tenants of the hacienda but by many other people in going and coming from a church
half-way between the boundary line of the hacienda and Calle Tejeron. The court held that the facts
did not give rise to a perspective right of easement in favor of the owner of the hacienda, upon the
ground that such use "is to be regarded as permissive and under an implied license, and not adverse.
Such a use is not inconsistent with the only use which the proprietor thought fit to make of the land,
and until the appellee thinks proper to enclose it, such use is not adverse and will not preclude it from
enclosing the land when other views of its interest render it proper to do so. And though an adjacent
proprietor may make such use of the open land more frequently than another, yet the same rule will
apply unless there be some decisive act indicating a separate and exclusive use under a claim of
right. A different doctrine would have a tendency to destroy all neighborhood accommodations in the
way of travel; for if it were once understood that a man, by allowing his neighbor to pass through his
farm without objection over the pass-away which he used himself, would thereby, after the lapse of
time, confer a right on such neighbor to require the pass-way to be kept open for his benefit and
enjoyment, a prohibition against all such travel would immediately ensue."
The decisions of the supreme court of Louisiana, a State whose jurisdiction is based, as is our
own, upon the Roman Law, and whose Civil Code is taken, as is our own, very largely from the Code of
Napoleon, are particularly persuasive in matters of this character. In the case of Torres vs. Fargoust
(37 La. Ann., 497), cited by appellants in their brief, in which the issues were very similar to those of
the present case, the court held that
"The mere fact that for thirty or forty years the public was permitted to pass over
this ground would not of itself constitute the place a locus publicus . . . dedication must

be shown by evidence so conclusive as to exclude all idea of private ownership; . . . such

dedication can not be inferred from mere user alone; . . . no one is presumed to give
away his property. The burden is on him who avers a divestiture of ownership to prove it
clearly.'
We are, therefore, of the opinion, and so hold, that upon the facts established by the evidence
it does not appear that the road in question is a public road or way. We are also of the opinion that
plaintiff have failed to show that they have acquired by prescription a private right of passage over
the lands of defendants. The supreme court of Spain has decided that under the law in force before
the enactment of decided that under the law in force before the enactment of the Civil Code, the
easement of way was discontinuous, and that while such an easement might be acquired by
prescription, it must be used in good faith, in the belief of the existence of the right, and such user
must have been continuous from time immemorial. (Judgment of December 15, 1882.) In the
appealed decision the court below says that the plaintiff and their predecessors made use of the road
in question "from time immemorial," but there is no evidence whatever in the record to support this
finding, although it is true that the evidence shows the existence of the road and its use by the
plaintiffs and their predecessors for thirty-five or forty years. Speaking of the evidence required under
the present Code of Civil Procedure to show immemorial use of an easement, this court said in the
case of Ayala de Roxas vs. Case (8 Phil. Rep., 197, 198):
"The third Partida in title 31, law 15 . . . says that discontinuous servitudes . . .
must be proved by usage or a term so long that men can not remember its
commencement. . . . In many judgments the supreme court of Spain has refused to
accept proof of any definite number of years as a satisfaction of this requirement of the
law . . . We are of the opinion that in order to establish a right of prescription [title of
prescription based upon use from time immemorial] something more is required than the
memory of living witnesses. Whether this something should be the declaration of persons
long dead, repeated by those who testify, as exacted by the Spanish law, or should be
the common reputation of ownership recognized by the Code of Procedure, it is
unnecessary for us to decide. On either theory the appellant has filed in this proof . . . "
The same thing may be said in this case. Witnesses has testified that they have known the
road for a certain period of years, beginning at a time prior to the enactment of the Civil Code, but no
evidence has been made to prove immemorial use by either of the means of proof mentioned in this
decision cited, nor is immemorial user averred in the complaint as the basis of the right. It is evident,
therefore, that no vested right by user from immemorial had been acquired by plaintiffs at the time
the Civil Code took effect. Under that Code (art. 539) no discontinuous easement could be acquired
by prescription in any event. 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 may be acquired by prescription, it is clear that this would not avail plaintiffs.
The Code of Civil Procedure went into effect on October 1, 1901. The term of prescription for the
acquisition of rights in real estate is fixed by the Code (sec. 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 and collecting toll from persons making use of it with carts and continued
preliminary injunction by the trial court in December, 1912. Our conclusion is, therefore, that plaintiffs
have not acquired by prescription a right to an easement of way over the defendants' property; that
their use of the Nanca-Victorias road across the Hacienda Toreno was due merely to the tacit license
and tolerance of the defendants and their predecessors in title; that the license was essentially

revocable; and that, therefore, the defendants were within their rights when they closed the road in
1911.
While in the allegation from plaintiffs' complaint it might be inferred that it was their purpose
to seek to impose upon defendants the easement to which arts. 564 et seq. of the Civil Code relate,
that purpose was evidently abandoned, and the case was tried upon a wholly different theory. Proof
was offered to show that the right of passage across defendants' land is necessary to enable plaintiffs
to get their products to market, but there was no offer on their part to pay defendants the indemnity
required by section 564.
For the reasons stated the judgment of the court below is reversed, the injunction issued
against defendants is dissolved, and the action is dismissed. No costs will be allowed on this appeal.
So ordered.
Arellano, C.J., Torres, Araullo, Street, Malcolm, and Avancea, JJ., concur.
JOHNSON, J., dissents.
||| (Cuaycong v. Benedicto, G.R. No. 9989, [March 13, 1918], 37 PHIL 781-797)

EN BANC
[G.R. No. 23810. December 18, 1926.]
CATALINO VALDERRAMA, plaintiff-appellee, vs. THE NORTH NEGROS SUGAR CO.,
INC., defendant-appellant.
[G.R. No. 23811. December 18, 1925.]
EMILIO RODRIGUEZ, plaintiff-appellee, vs. THE NORTH NEGROS SUGAR CO.,
INC., defendant-appellant.
[G.R. No. 23812. December 18, 1925.]
SANTOS URRA, ET AL., plaintiffs-appellees, vs. THE NORTH NEGROS SUGAR CO.,
INC., defendant-appellant.
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr., for appellant.
Camus & Delgado for appellees.
SYLLABUS
1. CONTRACTS; INTERPRETATION. In the determination of the scope of a contract, an
interpretation which is contrary to the object of the contract shall not be admitted.
2. ID.; ID.; EASEMENT OF WAY. In a contract establishing an easement of way in favor of a
sugar company for the construction of a railroad for the transportation of sugar cane from the
servient estates to the mill of said company, it is contrary to the nature of the contract to pretend that
only sugar cane grown in the servient estates can be transported on said railroad, because it is a well-

settled rule that things serve their owner by reason of ownership and not by reason of easement; that
is to say, that an easement hang been established in favor of the sugar company, the owners of the
servient estates cannot limit its use to the transportation of their cane, there being no express
stipulation to that effect, for then there would be no need of the easement, since they could use their
estates as owners thereof.
3. ID.; ID.; ALTERATION OF EASEMENT. In the case of an easement of way for the
construction of a railroad, the prohibition of the law (art. 543 of the Civil Code) against alteration of
easement, making it more burdensome, is not violated by causing to pass thereon wagons carrying
goods pertaining to persons who are not the owners of the servient estates and at all times the per
son entitled to the easement may please, for in such a case the easement continues to be the same.
Said legal prohibition has reference to that case wherein in extending the line or repairing or using the
same, a larger area of land is occupied, or excavations or materials deposited outside of the area
occupied by the easement.
DECISION
VILLAMOR, J p:
As appears from the record, on November 17, 1916, several hacienda owners of Manapla,
Occidental Negros, entered into a contract with Miguel J. Osorio, known as milling contract, wherein
Osorio agreed to install in Manapla a sugar central of a minimum capacity of 300 tons, for grinding
and milling all the sugar cane to be grown by the hacienda owners, who in turn bound themselves to
furnish the central with all the cane they might produce in their estates for thirty years from the
execution of the contract, all in accordance with the conditions specified therein.
Later on, the defendant North Negros Sugar Co., Inc., acquired the rights and interest of Miguel
J. Osorio in the milling contract aforesaid.
Two years thereafter, that is to say, on January 29,1919, Catalino Valderrama (case No. 23810)
and on February 1st of the same year, Emilio Rodriguez (case No. 23811) and Santos Urra, Ignacio
Benito Huarte, Adolfo Huarte and Pedro Auzmendi (case No. 23812) made with the appellant other
milling contracts identical with the first one of November 17, 1916, with some new conditions which
are specified in detail in the aforesaid documents Exhibits A and 1. Santos Urra thereafter transferred
to Pedro Auzmendi, and the latter to Lorenzo Echarri, their interest in the milling contract executed by
them.
In view of the fact that the hacienda owners, who were up to that time customers of the
central, could not furnish sufficient cane for milling, as required by the capacity of said central, the
defendant made other milling contracts with various hacienda owners of Cadiz, Occidental Negros in
order to obtain sufficient cane to sustain the central; and this gave rise to the plaintiffs filing their
complaint, alleging that the easement of way, which each of them has established in his
respective hacienda, was only for the transportation through each hacienda of the sugar cane of the
owner thereof, while the defendant maintains that it had the right to transport to its central upon the
railroad passing through the haciendas of the plaintiffs, not only the sugar cane harvested in said
haciendas, but also that of the hacienda owners of Cadiz, Occidental Negros.
The plaintiffs, in separate complaints, prayed the Court of First Instance of Occidental Negros
to pronounce judgment, holding that the defendant had no right, under the easement or otherwise, to
cause its locomotives and wagons to run across the estates of the plaintiffs for the purpose of
transporting sugar cane of any agriculturist of Cadiz, Occidental Negros.

The defendant answered the amended complaints, admitting some allegations thereof and
denying others. And as special defense, it alleged that the plaintiffs respectively granted the
defendant, for the period of fifty years from the date of the aforesaid contracts, an easement of way 7
meters wide upon the lands of the plaintiffs for the construction and operation of a railroad for the
transportation of sugar cane; that said easement of way was established without any restriction
whatsoever, as regards the ownership of the cane to be transported over the said railroad; that said
contract was then in full force and effect and had never been annulled or modified.
After hearing the three cases, the trial court entered one single judgment for all of them,
holding that the defendant had no right to pass through the lands of the plaintiffs described in their
amended complaints for the transportation of sugar cane not grown from any of the haciendas of the
plaintiffs. From this judgment, the defendant appealed.
In view of the similarity of the facts and questions raised in the three complaints, they will
herein be considered jointly, as was done by the trial court.
The parties agree that the only question herein involved is as to the extent of the easement of
way which the plaintiffs have established in their respective haciendas in favor of the defendant, and
therefore it is important to know the terms in which such easement of way was established.
In the contract executed by the plaintiff Valderrama with the defendant on January 29, 1919,
there appears: "6th. That in order to have the obligations herein entered into by Mr. Valderrama duly
registered, in regard to the rural estates belonging to him and which are described hereinafter,an
easement of way 7 meters wide and for the period of 50 years from the date hereof is hereby created
in favor of the 'North Negros Sugar Co., Inc.,' upon his property hereinafter described, at such place
as said corporation may see fit for the construction of a railroad."
And in the contract of the plaintiff Rodriguez of February 1, 1919, there also appears: "6th.
That in order to have the obligations herein entered into by Mr. Emilio Rodriguez duly registered, in
regard to the rural estates belonging to him which are hereinafter described, an easement of way 7
meters wide and for the period of 50 years from the date hereof is hereby established by said Mr.
Emilio Rodriguez in favor of the 'North Negros Sugar Co., Inc.,' upon his estate aforementioned, at
such place as said corporation ~y see fit for the construction of a railroad."
And lastly in the contract of Santos Urra and others of February 1, 1919, there likewise
appears: "7th. That in order to have the obligationg herein entered into by Santos Urra, Ignacio Benito
Huarte, Adolfo Huarte and Pedro Auzmendi duly registered, in regard to their estate hereinafter
described, an easement of way 7 meters wide and for the period of 50 years from the date hereof is
hereby established in favor of the 'North Negros Sugar Co., Inc.,' upon their estate hereinafter
described, at such place as said corporation may see fit for the construction of a railroad."
As may be seen, the question raised depends upon the interpretation to be given to the clause
of the contracts of the plaintiffs above quoted. The plaintiffs allege that the aforesaid clause is
ambiguous, and under the first exception of section 285 of the Code of Civil Procedure, they have the
right to introduce extraneous evidence to explain the true intent of the parties. And it is ambiguous,
according to them, because it may be applied to the transportation of the cane of the plaintiffs or of
other producers, which is contrary to the intent of the contracting parties. If the above quoted clause
is ambiguous, the plaintiffs have the right to introduce circumstantial evidence to explain the true
intent of the parties, but in our opinion said clause is clear enough in its terms to express what the
parties have intended to agree upon. Had the clause mentioned only an "easement of way," there
might be a doubt as to whether or not the easement of way is for pedestrians, horsemen or carriages.
But when the clause says: "easement of way 7 meters wide for the period of 50 years for the
construction of a railroad," there can be no doubt about what the contracting parties have agreed
upon, to wit, that the plaintiffs have created upon their respective haciendas at a suitable place an

easement of way 7 meters wide and for a period of fifty years, in order to enable the defendant to
build and maintain a railroad for the transportation of sugar cane to the central. It is clear that the
cane of the plaintiffs was to be transported upon the railroad to the central; but to limit the use of the
road exclusively to the cane of the plaintiffs and within their respectivehaciendas would make the
contract in question ineffective, except as to the hacienda which is contiguous or nearest to the
central.
The object of such a milling contract, from which arises the easement in question, is
undoubtedly to obtain mutual benefit to the producers of sugar cane and the corporation putting up
the central. It is only by taking this principal idea into account that it may be conceived why the
parties had come to an agreement to assume such obligations as are set forth in the milling contract.
But the contract could not produce any benefit to the parties, if the explanation given by the plaintiffs
would be admitted, as to their intention in creating the aforesaid easement of way upon their
respectivehaciendas, that it was only in favor of their respective haciendas. Such an explanation is
inadmissible because it is contrary to the object of the milling contract.
It is against the nature of the easement to pretend that it was established in favor of the
servient estates, because it is a well settled rule that things serve their owner by reason of ownership
and not by reason of easement.
This is a case of an easement for the benefit of a corporation, voluntarily created by the
plaintiffs upon their respective estates for the construction of a railroad connecting said estates with
the central of the defendant. Once the road is constructed, the easement is apparent because it is
continuously exposed to view by the rails which reveal the use and enjoyment of said easement. It is
evident, as above stated, that the cane of the plaintiffs is to be transported to the central by means of
wagons passing upon the railroad; but as the easement was created for the benefit of the corporation,
owner of the central, it may cause its wagons to pass upon the road as many times as it may deem
fit, according to the needs of the central. If the plaintiffs do not produce sufficient cane to cover the
capacity of the central, it would be unjust to impose upon the defendant corporation the burden of
maintaining a central, prohibiting it to obtain from another source sufficient cane with which to
maintain its business; this is specially true here, because in the milling contract with the plaintiffs,
there is nothing to prohibit the defendant from making milling contracts with other planters, and
obtain in that way all the cane necessary to cover the capacity of the central.
Another reason advanced by the appellees in support of their theory is that by transporting
upon the road, through the servient estates, the cane of the planters of Cadiz, it would alter the
easement, making it more burdensome. It is true that the owner of the dominant estate, in making on
the servient estate the necessary works for the use and preservation of the easement, cannot alter it,
nor make it more burdensome (art. 543 of the Civil Code); but this does not mean that the defendant
cannot transport in the wagons passing upon the railroad other cane than that of the plaintiffs. what
is prohibited by the legal provision above cited is that the defendant, in extending the road or in
repairing it, should occupy a greater area of land of the servient estates, or deposit excavations or
building materials outside of the area of 7 meters, because in the first case, the easement will be
altered, and in the second it would become more burdensome. But nothing of the kind happens when
the defendant transports on the railroad, crossing the servient estates, the cane of the planters of
Cadiz; the railroad continues to occupy the same area on the servient estates, and the encumbrance
resulting from the easement continues to be the same, whether the tractors traverse the line 10, 20
or 30 times-a day transporting cane for the central.
Furthermore, the record shows a circumstance indicating that at the time of the execution of
the milling contracts above referred to, there was no intention on the part of the contracting parties to

limit the use of the railroad to the transportation of cane grown by the plaintiffs in their
respectivehaciendas, and that is because, while the duration of the milling contracts is fixed at thirty
years, that of the easement is at fifty. So that if at the end of thirty years the plaintiffs or their
successors should no longer desire to furnish canes for milling in the central of the defendant, the
latter shall still have the right to the easement for the remaining period, but without transporting on
the railroad any cane for the central. An interpretation of the clause in question leading to such a
result is untenable.
For the foregoing, we are of the opinion that the trial court erred in finding that the appellant
could not transport on its railroad passing through the haciendas of the appellees, where it has an
easement of way established in its favor, the cane grown in the haciendas of the producers of Cadiz,
Occidental Negros, to be milled in the central of the appellant. And, therefore, the judgment appealed
from must be reversed and the appellant absolved, as it is hereby absolved, from the complaint,
without special pronouncement as to costs. So ordered.
Avancea, C.J., Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
||| (Valderrama v. The North Negros Sugar Co., Inc., G.R. No. 23810, 23811, 23812, [December 18, 1926])
EN BANC
[G.R. No. 42334. October 31, 1936.]
NORTH
NEGROS
SUGAR
HIDALGO, defendant-appellee.

CO.,

INC., plaintiff-appellant, vs.

SERAFIN

Hilado & Hilado for appellant.

Simeon Bitanga for appellee.
Ross, Lawrence, Selph & Carrascoso and DeWitt, Perkins & Ponce Enrile as amici curiae.
SYLLABUS
1. INJUNCTION; REMEDY SOUGHT AS PRINCIPAL RELIEF; REQUISITES. The plaintiff prays in its
complaint against the defendant that an injunction be issued, restraining the defendant from entering
or passing through the properties of the plaintiff, specially through the "mill site" of plaintiff's sugar
central. The injunction applied for, constitutes, unlike the auxiliary and subordinate remedy that it
ordinarily is, the principal remedy itself. The relief should only be granted, therefore, after it has been
established not only that the right sought to be protected exists, but also that the acts against which
the injunction is to be directed are violative of said right.
2. ID.; ID.; ID. "The existence of a right violated is a prerequisite to the granting of an
injunction. . . . A permanent injunction should not be awarded except in a clear case and to prevent
irreparable injury." (32 C.J., 34-36.) "A court of chancery will not entertain a bill to enforce a mere
valueless abstract right, and the court will, on its own motion, raise the point for its own protection."
(Dunnom vs. Thomsen, 58 Ill. App., 390.) None of these requisites is present in the instant case. There
has been a failure to establish either the existence of a clear and positive right of the plaintiff
specially calling for judicial protection through an extraordinary writ of the kind applied for, or that the
defendant has committed or attempts to commit any act which has endangered or tends to endanger
the existence of said right, or has injured or threatens to injure the same.
3. ID.; ID.; PRIVATE ROAD OPEN TO PUBLIC USE. When a private road has been thrown open
to public use, no action for trespass is maintainable against any person who desires to make use

thereof; consequently, an injunction suit likewise does not lie. "Private roads, except where laid out
under constitutional provisions authorizing the condemnation of private property for a private use, are
public roads in the sense that they are open to all who see fit to use them, and it is immaterial that
the road is subject to gates and bars, or that it is merely a cul de sac. Being thus considered as a
public road, it necessarily follows that the owner of the land through which the road is laid out cannot
maintain an action of trespass against any person using it." (50 C.J., pp. 397, 398.) ". . . Where it is
clear that the complainant does not have the right that he claims, he is not entitled to an injunction,
either temporary or perpetual, to prevent a violation of such supposed right. . . . An injunction will not
issue to protect a right not in esse and which may never arise or to restrain an act which does not
give rise to a cause of action, . . .." (32 C.J., pp. 34, 35.)
4. ID.; ID.; ID. Plaintiff states in the sixth paragraph of its amended complaint: "6. That, in
addition, the plaintiff, in the exercise of its property rights, does not want to allow the entry of the
defendant in any part of its estate above-mentioned in order to avert any friction or ill-feeling against
him." The plaintiff, in petitioning the courts for an injunction to avert "friction or ill- feeling" against
the defendant, invoking its sacred property rights, attempts to intrust to them a mission at once
beyond those conferred upon them by the Constitution and the laws, and unbecoming of their dignity
and decorum.
5. ID.; ID.; FAILURE TO ESTABLISH DAMAGE AGAINST WHICH THE INJUNCTION IS INVOKED.
Plaintiff has not established the existence, real or probable, of the alleged damage against which the
injunction is invoked. Plaintiff's admission in its brief (p. 15) that it has not been established that the
defendant has brought tuba to the "mill site," or has sold it within its property, is fatal to the present
action charging the defendant with said acts.
6. ID.; ID.; PRINCIPLE OF EQUITY. The well-known principle of equity that "he also comes to
equity must come with clean hands" bars the granting of the remedy applied for by the plaintiff.
Plaintiff, in order to obtain a preliminary injunction, trifled with the good faith of the lower court by
knowingly making untrue allegations on matters important and essential to its cause of action.
Consequently, it did not come to court with clean hands. "Coming into equity with clean hands. The
maxim that he who comes into equity must come with clean hand is, of course, applicable in suits to
obtain relief by injunction. Injunction will be denied even though complainant shows that he has a
right and would otherwise be entitled to the remedy in case it appears that he himself acted
dishonestly, fraudulently or illegally in respect to the matter in which redress is sought, or where he
has encouraged, invited or contributed to the injury sought to be enjoined. However, the general
principle that he who comes into equity must come with clean hands applies only to plaintiff's
conduct in relation to the very matter in litigation. The want of equity that will bar a right to equitable
relief for coming into court with unclean hands must be so directly connected with the matter in
litigation that it has affected the equitable relations of the parties arising out of the transaction in
question." (32 C.J., pp. 67, 68.)
7. ID.; ID.; JUDICIAL DISCRETION. The exercise of discretion by trial courts in matters
injunctive should not be interfered with by appellate courts except in cases of manifest abuse. ". . .
The court which is to exercise the discretion is the trial court and not the appellate court. The action
of the court may be reviewed on appeal or error in case of a clear abuse of discretion, but not
otherwise, and ordinarily mandamus will not lie to control such discretion." (32 C.J., sec. 11, p. 33.)
True, the rule has particular application to preliminary injunctions, but the rule should not be
otherwise with respect to permanent injunctions especially where, as in this case, set the same aside
in its final decision on a careful review of the evidence.
8. ID.; ID.; VOLUNTARY EASEMENT. This is a case of an easement of way voluntarily
constituted in favor of a community. (Civil Code, arts. 531 and 594.) There is nothing in the

constitution of this easement in violation of law or public order, except perhaps that the right to open
roads and charge passage fees therefor is the State's by right of sovereignty and may not be taken
over by a private individual without the requisite permit. This, however, would effect the right of the
plaintiff to charge tolls, but not that of the defendant or of any other person to make use of the
easement.
9. ID.; ID.; ID. Voluntary easements under article 594 are not contractual in nature; they
constitute the act of the owner. If he exacts any condition, like the payment of a certain indemnity for
the use of the easement, any person who is willing to pay it may make use of the easement. If the
contention be made that a contract is necessary, it may be stated that a contract exists from the time
all those who desire to make use of the easement are disposed to pay the required indemnity.
10. ID.; ID.; ID. The plaintiff contends that the easement of way is intermittent in nature and
can only be acquired by virtue of a title under article 539. The defendant, however, does not lay claim
to it by prescription. The title in this case consists in the fact that the plaintiff has offered the use of
this road to the general public upon payment of a certain sum as passage fee in the case of motor
vehicles.
11. ID.; ID.; ID.; CASES DISTINGUISHED. The cases of Roman Catholic Archbishop of
Manila vs. Roxas (22 Phil., 450), and Cuaycong vs.Benedicto (37 Phil., 781), are not controlling, as
there the attempt was to establish that the right to an easement of way had been acquired by
prescription. Here defendant's contention is, that while the road in question remains open to the
public, he has a right to its use upon paying the passage fees required by the plaintiff. Indeed the
latter may close it at its pleasure, as no period had been fixed when the easement was voluntarily
constituted, but while the road is thrown open, the plaintiff may not capriciously exclude the
defendant from its use.
12. ID.; ID.; ID.; PUBLIC INTEREST. Having been devoted by the plaintiff to the use of the
public in general, upon paying the passage fees required in the case of motor vehicles, the road in
question is charged with a public interest, and while so devoted, the plaintiff may not establish
discriminatory exceptions against any private person. "When private property is affected with a public
interest, it ceases to be juris privati only; as if a man set out a street in new building on his own land,
it is now no longer bare private interest, but is affected by a public interest." (Lord Chief Justice Hale
in his treatise "De Portibus Maris," quoted with approval in Munn vs. Illinois, 94 U.S., 113 [1876], and
in Nebbia vs. New York, 291 U.S., 502 [1934].)
13. ID.; ID.; ID.; PUBLIC UTILITY. The circumstance that the road in question does not
properly fall within the definition of a public utility provided in Act No. 3108, does not divest it of this
character: " . . . whether or not a given business, industry, or service is a public utility does not
depend upon legislative definition, but upon the nature of the business or service rendered, and an
attempt to declare a company or enterprise to be a public utility, where it is inherently not such, is, by
virtue of the guaranties of the federal constitution, void whether it interferes with private rights of
property or contract. So a legislature cannot by mere flat or regulatory order convert a private
business or enterprise into a public utility, and the question whether or not a particular company or
service is a public utility is a judicial one, and must be determined as such by a court of competent
jurisdiction; . . .." (51 C.J., sec. 3, p. 5.)
14. ID.; ID.; ID. The road in question being a public utility, or, to be more exact, a private
property affected with a public interest, it is not lawful to make arbitrary exceptions with respect to its
use and enjoyment. "Duty to Serve Without Discrimination. A public utility is obliged by the nature
of its business to furnish its service or commodity to the general public, or that part of the public
which it has undertaken to serve, without arbitrary discrimination, and it must, to the extent of its

capacity, serve all who apply, on equal terms and without distinction, so far as they are in the same
class and similarly situated. Accordingly, a utility must act toward all members of the public
impartially, and treat all alike; and it cannot arbitrarily select the persons for whom it will perform its
service or furnish its commodity, nor refuse to one a favor or privilege it has extended to another,
since the term 'public utility' precludes the idea of service which is private in its nature and is not to
be obtained by the public. Such duties arise from the public nature of a utility, and statutes providing
affirmatively therefor are merely declaratory of the common law." (51 C.J., sec. 16, p.7.)
15. ID.; ID.; ID. The circumstance that the plaintiff is not the holder of a franchise or of a
certificate of public convenience, or that it is a company devoted principally to the manufacture of
sugar and not to the business of public service, or that the State has not as yet assumed control or
jurisdiction over the operation of the road in question by the plaintiff, does not preclude the idea that
the said road is a public utility.
16. ID.; ID.; ID. "When private property is devoted to public use in the business of a public
utility, certain reciprocal rights and duties are raised by implication of law between the utility and the
public it undertakes to serve, and no contract between them is necessary to give rise thereto. . . ." (51
C.J., sec. 12, p. 6.)
DECISION
RECTO, J p:
On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental Negros
a complaint praying, upon the allegations contained therein, that an injunction be issued, restraining
the defendant from entering or passing through the properties of the plaintiff, specially through the
"mill site" of plaintiffs sugar central.
It appears that the plaintiff is the owner of a site in which is located its sugar central, with its
factory building and residence for its employees and laborers, known as the "mill site." It also owns
the adjoining sugar plantation known as Hacienda "Begoa." Across its properties the plaintiff
constructed a road connecting the "mill site" with the provincial highway. Through this road plaintiff
allowed and still allows vehicles to pass upon payment of a tool charge of P0.15 for each truck or
automobile. Pedestrians are allowed free passage through it.
Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of
Luciano Aguirre, known as Hacienda "Sagay," where the defendant has a billiard hall and a tuba
saloon. Like other people in the about the place, defendant used to pass through the said road of the
plaintiff, because it was his only means of access to the Hacienda "Sagay" where he runs his billiard
hall and tuba saloon. Later on, by order of the plaintiff, every time that the defendant passed driving
his automobile with a cargo of tuba plaintiff's gatekeeper would stop him and prevent him from
passing through said road. Defendant in such cases merely deviated from said road and continued on
his way to the Hacienda "Sagay" across the fields of Hacienda "Begoa," likewise belonging to the
plaintiff.
The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its property
has not been established by the evidence adduced in this case. This the plaintiff admits in its brief (p.
15). Neither is there any evidence to show that the defendant actually created disturbance in
plaintiff's properties, including its "mill site." Other pertinent facts will be stated in appropriate places
in this decision.
A. First of all it may be stated that in the case at bar the injunction applied for, constitutes,
unlike the auxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief

should only be granted, therefore, after it has been established not only that the right sought to be
protected exists, but also that the acts against which the injunction is to be directed are violative of
said right.
"SEC. 164. Circumstances under which a preliminary injunction may be granted. A
preliminary injunction may be granted when it is established, in the manner hereinafter
provided, to the satisfaction of the judge granting it:
"1. That the plaintiff is entitled to the relief demanded and such relief, or any part
thereof, consists in restraining the commission or continuance of the acts complained of
either for a limited period or perpetually;
"2. That the commission or continuance of some act complained of during the
litigation would probably work injustice to the plaintiff;
"3. That the defendant is doing, or threatens, or is about to do, or is procuring or
suffering to be done, some act probably in violation of the plaintiff's rights, respecting the
subject of the action, and tending to render the judgment ineffectual." (Code of Civil
Procedure.)
"In order that, at the final trial of a case, an injunction may issue perpetually
prohibiting the repetition or continuation of an act complained of, it is indispensable that
it shall have been proven at trial that he who seeks such a remedy is entitled to ask for it;
if he is not, his request must be denied." (Tumacder vs. Nueva, 16 Phil., 513.)
"The extraordinary remedy of injunction will not be granted to prevent or remove
a nuisance unless there is a strong case of pressing necessity, and not because of a
trifling discomfort." (De Ayala vs. Barretto, 33 Phil., 538.)
"The existence of a right violated is a prerequisite to the granting of an
injunction. . . . A permanent injunction should not be awarded except in a clear case and
to prevent irreparable injury." (32 C.J., 34-36.)
"A court of chancery will not entertain a bill to enforce a mere valueless abstract
right, and the court will, on its own motion, raise the point for its own protection."
(Dunnom vs. Thomsen, 58 Ill. App., 390.)
None of these requisites is present in the instant case. There has been a failure to establish
either the existence of a clear and positive right of the plaintiff specially calling for judicial protection
through an extraordinary writ of the kind applied for, or that the defendant has committed or
attempts to commit any act which has endangered or tends to endanger the existence of said right,
or has injured or threatens to injure the same.
In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff made under oath
in its complaint the following allegations, which later turned out to be untrue, or, at least, beyond the
capacity of plaintiff to prove:
"3. That on sundry occasions heretofore, the defendant used to go to the said 'mill
site' of the plaintiff, passing over the latter's private roads, and there caused trouble
among the peaceful people of the place.
"4. That the plaintiff, through its representatives, has prohibited the defendant
from entering its private property, but this notwithstanding, the defendant still persists in
repeating his incursions into the said private roads and 'mill site' of the plaintiff,
disturbing public order and molesting plaintiff's employees and their families."
The court, in its order granting the preliminary injunction, said:
"Considering the said complaint and the sworn statement of its correctness filed
by plaintiff's attorneys 1 and it appearing satisfactorily that the issuance of a preliminary

injunction is in order because of the sufficiency of the grounds alleged, upon the filing of
a bond, it is hereby, etc. . . .."
After obtaining the preliminary injunction, the plaintiff amended its complaint by eliminating
therefrom those very allegations upon which the court granted the temporary remedy, namely, the
acts imputed to the defendant "of causing trouble among the peaceful people of plaintiff's 'mill site,'
and of disturbing public order and molesting plaintiff's employees and their families within the private
roads and the 'mill site' of the plaintiff." The plaintiff doubtless overlooked the fact that the allegation
it availed of to obtain a preliminary injunction was necessary to secure one of a permanent character.
In its new complaint, its only grievance is that the defendant insists in passing through its property to
take tuba to the Hacienda "Sagay" (which does not belong to the plaintiff but to Luciano Aguirre, and
where the defendant has established a legitimate business). The amended complaint no longer
alleges that the defendant went to the "mill site" and to the private roads of the plaintiff "to cause
trouble, disturb public order and molest plaintiff's employees and their families.".
It develops, however, that neither the original complaint nor the one amended states how and
why the mere passage of the defendant over plaintiff's estate to convey tuba to the Hacienda
"Sagay" has caused damages to plaintiff's property rights, requiring the unusual intervention and
prohibition thereof of the courts through injunctive relief. The plaintiff failed not only to make any
allegation to this effect, but also to state that the road on its property where the defendant used to
pass on his way to the Hacienda "Sagay" was open to the public in general, and that the plaintiff,
exercising without any permit a power exclusively lodged in the state by reason of its sovereign
capacity, required the payment of passage fees for the use of said road.
Now, there being no contention here that the defendant, in passing over plaintiff's estate to
take tuba to the Hacienda "Sagay," occasioned damages to such estate, or that he sold tuba within
the confines thereof, what could have been the basis of plaintiff's right for which the special
protection of the court is invoked, and of the illegal act laid at defendant's door? Defendant's passage
over plaintiff's property does not, of itself, constitute an unlawful act inasmuch as the plaintiff, of its
own accord, opened the same to the public conditioned only upon the payment of transit fees by
motor vehicles. Neither does the mere transportation of tuba over plaintiff's estate amount to a
violation of the latter's property rights, unless the goods' destination be at any point within the
confines thereof, or unless the said goods be sold in transit to the laborers and employees of the
plaintiff, which, as plaintiff itself admits in its brief (p. 15), has not been shown.
The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid does
not consist in defendant's taking tuba with him while traversing the former's property, as there is no
causal relation between the act and any resultant damage, but in the fact that tuba is disposed of at
the Hacienda "Sagay" to which plaintiff's laborers have access. What should, therefore, be enjoined,
if it were legally possible, is defendant's sale of tuba at the Hacienda "Sagay," and not its
conveyance across plaintiff's estate. But if, as plaintiff concedes (brief, p. 16), the former cannot be
legally enjoined, least of all can the latter be restrained as long as the public in genera; is free to go
about the said property and it has not been shown that the defendant, in passing through it, has
occasioned damage thereto or has committed any act infringing plaintiff's property rights or has
refused to pay the required road toll.
Defendant's sale of tuba at the Hacienda "Sagay" is nothing more than the exercise of a
legitimate business, and no real damage to third persons can arise from it as a natural and logical
consequence. The bare possibility that plaintiff's laborers, due to the contiguity of the Hacienda
"Sagay" to its property, might come to defendant's store to imbibe tuba to drunkenness, does not
warrant the conclusion that the defendant, in thus running the business, impinges upon plaintiff's

property rights and should thereby be judicially enjoined. The damage which plaintiff seeks to enjoin
by this action does not consist, an has been demonstrated, in defendant's maintaining a tuba store at
the Hacienda "Sagay," or in defendant's crossing its property while taking tuba to the Hacienda
"Sagay," but in its laborers finding their way to the said hacienda in order to buy tuba and become
drunk. In other words, the act sought to be restrained as injurious or prejudicial to plaintiff's interests,
is that committed, not by the defendant, but by plaintiff's own laborers. Rightly and logically, the
injunction should be directed against said laborers to the end that they should abstain from going to
the Hacienda "Sagay" in order to buy tuba and become drunk. As it would seem unusual for the
plaintiff to do this, it should at least exercise stricter vigilance and impose rigorous discipline on its
laborers by, for instance, punishing drunkenness with expulsion. Plaintiff's remedy lies in its own
hands and should not be looked for in the courts at the sacrifice of other interests no less sacred and
legitimate than the plaintiff's.
Where one has a right to do a thing equity has no power to restrain him from doing it.
(Dammann vs. Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law will not be
enjoined (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw., 205). Lawful
exercises of rights incidentally injuring others may not be enjoined by injunction. (14 R. C. L., 369.) "It
is . . . an established principle that one may not be enjoined from doing lawful acts to protect and
enforce his rights of property or of person, . . .." (14 R.C.L., pp. 365, 366.).
It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at his store in
the Hacienda "Sagay," but from passing through its property to introduce tuba to said hacienda
(plaintiff's brief, p. 16). The legal rule, however, is that what the law does not authorize to be done
directly, cannot be done indirectly. If the plaintiff cannot judicially enjoin the defendant from
selling tuba at the Hacienda "Sagay," neither can it obtain said injunction to prevent him from
passing over its property to transport tuba to that place as long as the defendant is ready to pay the
transit fees required by the plaintiff and does not sell the said goods inside the said property.
Suppose that the defendant, instead of being a tuba vendor, is a social propagandist whose
preachings, while not subversive of the established legal order, are not acceptable to some
capitalistic organizations, say the plaintiff. Suppose that the defendant, armed with the corresponding
official permit, should desire to go to the Hacienda "Sagay" through plaintiff's estate for the purpose
of explaining to the laborers the advantage of the latter organizing themselves into unions, or joining
existing ones, to better defend their interests. Plaintiff learns in time of the plan and determines to
frustrate it in the belief that it would be prejudicial to its interests for the laborers to be "unionized,"
while it is for its good that the laborers be contracted under the so-called "open shop" system. Unable
to stop the holding of the meeting because the same is not to take place on its property, may the
plaintiff secure an injunction from the courts to prevent the defendant to pass through the said
property in order to reach the place of the meeting, by alleging that the defendant entertains theories
of social reform which might poison the minds of the laborers at the expense of the plaintiff's
interests? May the latter, under the same hypothesis, maintain that defendant's act in passing
through its property, which is open to public use, constitute trespass or usurpation restrainable by
injunction? If the answer to these questions is, as it must be, in the negative, the present case is not
susceptible of a different solution. The only difference between the two cases is that in the one
supposed the dreaded damage to plaintiff's interests is of more moment and or more lasting effect
than that in the case at bar.
When a private road has been thrown open to public use, no action for trespass is
maintainable against any person who desires to make use thereof; consequently, an injunction suit
likewise does not lie.

"Private roads, except where laid out under constitutional provisions authorizing
the condemnation of private property for a private use, are public roads in the sense that
they are open to all who see fit to use them, and it is immaterial that the road is subject
to gates and bars, or that it is merely a cul de sac. Being this considered as a public road,
it necessarily follows that the owner of the land through which the road is laid out cannot
maintain an action of trespass against any person using it; . . ." (50 C.J., pp. 397, 398.).
". . . Where it is clear that the complainant does not have the right that he claims,
he is not entitled to an injunction, either temporary or perpetual, to prevent a violation of
such supposed right. . . . An injunction will not issue to protect a right not in esse and
which may never arise or to restrain an act which does not give rise to a cause of
action, . . .." (32 C.J., pp. 34, 35.)
B. In its brief, plaintiff states:
"In transporting the tuba which he sells in his saloon in Hacienda 'Sagay' the
defendant used to pass thru the private road of the plaintiff which connects its sugar
central with the provincial road. On this private road the plaintiff has put up a gate under
the charge of a keeper, and every time that the defendant passed with a cargo
of tuba the gatekeeper would stop him and remind him that tuba was not permitted entry
into the private properties of the company, but instead of heeding this prohibition the
defendant would simply deviate from the road and continue on his way to hacienda
'Sagay' by way of the fields of Hacienda 'Begoa,' which is also the private property of
the plaintiff."
It is deductible from the above statement that, whenever the gatekeeper of the plaintiff
prevented the defendant from passing thru its so-called "private road," on his way from the provincial
road to the Hacienda, "Sagay," the defendant deviated from said road and carried the tuba across
the lands of the Hacienda "Begoa" is the same one frequented by carabaos (s.t., 32, 36). Plaintiff
intends not only to prohibit the defendant from using the road in question, but also from crossing the
lands of the Hacienda "Begoa," also belonging to the plaintiff, where carabaos are allowed to roam.
An act so shocking to the conscience, one is reminded, could only have been perpetrated during the
feudal period when human rights were unmercifully sacrificed to property rights. If an injunction
should lie in the instant case, it should be in favor of the defendant and against the plaintiff, to enjoin
the latter from obstructing the former to pass over the road in question to convey tuba to the
Hacienda "Sagay." It is indeed strange that it is the plaintiff and not the defendant that should have
applied for the remedy.
" . . . An injunction will not be granted when good conscience does not require it,
where it will operate oppressively or contrary to justice, where it is not reasonable and
equitable under the circumstances of the case, or where it will tend to promote, rather
than to prevent, fraud and injustice. . . ." (32 C.J., p. 33.) ". . . a court of equity may
interfere by injunction to restrain a party from enforcing a legal right against all equity
and conscience. . . ." (14 R.C. L., pp. 365, 366, par. 66.) ". . . The comparative
convenience or inconvenience of the parties from granting or withholding the injunction
sought should be considered, and none should be granted if it would operate
oppressively or inequitably, or contrary to the real justice of the case. This doctrine is
well established. . . ." (14 R.C.L., pp. 357, 358, par. 60.)
"The power of the courts to issue injunctions should be exercised with great
caution and only where the reason and necessity therefor are clearly established; and
while this rule has been applied more frequently in the case of preliminary and

mandatory injunctions, it applies to injunctions of all classes, and to restraining

orders. . . ." (32 C.J., pp. 33, 34.)
"The writ of injunction will not be awarded in doubtful or new cases not coming
within well-established principles of equity." (Bonaparte vs.Camden, etc. Railroad Co., 3
Fed. Cas. No. 1617; Hardesty vs. Taft, 87 Am. Dec., 584.)
C. Plaintiff's action is frivolous and baseless.
Plaintiff states in the sixth paragraph of its amended complaint:
"6. That, in addition, the plaintiff, in the exercise of its property rights, does not
want to allow the entry of the defendant in any part of its estate above mentioned in
order to avert any friction or ill-feeling against him."
The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling" against
the defendant, invoking its sacred property rights, attempts to intrust to them a mission at once
beyond those conferred upon them by the Constitution and the laws, and unbecoming of their dignity
and decorum.
D. Plaintiff has not established the existence, real or probable, of the alleged damage against
which the injunction is invoked.
As has been seen, the allegations of the amended complaint do not justify the granting of an
injunction. The said allegations only state, as the basis of plaintiff's action, that the defendant insists
in passing or "making incursions" on plaintiff's property to take tuba to the Hacienda "Sagay," and
that the plaintiff wants to avoid "friction and ill-feeling against him." Such allegations do not imply the
existence, or probable existence, of any real damage to plaintiff's rights which should be enjoined,
and do not, therefore, constitute a legal cause of action. On the other hand, what the plaintiff
attempted to establish by its evidence differs from the allegations of its amended complaint. What
said evidence really discloses is not, that the plaintiff had forbidden the defendant to convey tuba to
the Hacienda "Sagay" through plaintiff's estate, but to introduce tuba into the central or to
place tuba on its lands, or, according to Exhibit A, to trespass illegally on plaintiff's estate. The
testimony of the gatekeeper Santiago Plagata and the accountant Ankerson is as follows:
"Q. Why did you detain him?
A. Because the Central forbids the bringing of tuba to the Central.
"Q. Why does the Central prohibit the entry of tuba?
A. The Central prohibits the entry of tuba there because the laborers, generally, buy tuba,
drink it and become drunk, and are unable to work, and sometimes they fight
because they are drunk." (S.t., p.5.).
"Q. Why did you kick them?
A. Because the North Negros Sugar Co. prohibits the placing of tuba on those lands."
(S.t., pp. 38, 39.)
Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:
"Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935.
"Present
"SIR: Effective this date, you are hereby forbidden to trespass upon any of the
Company's properties under penalties of law prescribed for trespass.
"NORTH NEGROS SUGAR CO., INC.
"By: (Sgd.) Y.E. GREENFIELD
"Manager"
It will be noted that according to this letter, the defendant was enjoined by the plaintiff from
passing thru its properties, whether he carried tuba or not.

Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has
brought tuba to the "mill site," or has sold it within its property, is fatal to the present action charging
the defendant with said acts.
E. The well-known principle of equity that "he who comes to equity must come with clean
hands" bars the granting of the remedy applied for by the plaintiff.
It has been already stated that the plaintiff, to obtain a preliminary injunction in this case,
alleged under oath in its original complaint facts which it knew to be false, or, at least, unprobable,
because it did not only eliminate them from the amended complaint which it filed after the issuance
of the preliminary injunction, but it failed to substantiate them at the trial. We refer to the following
allegations: "that the defendant used to go to the 'mill site' of the plaintiff passing through plaintiff's
private roads and there cause trouble among the peaceful people of the place," and "that
notwithstanding the prohibition of the plaintiff, the defendant insists in repeating his incursions into
the said private roads and 'mill site' of the plaintiff, disturbing public order and molesting plaintiff's
employees and their families.".
If said allegations were true, it is evident that plaintiff was entitled to a preliminary injunction
at the commencement of the trial, and to a permanent injunction after the decision was rendered. But
such is not the case, as the subsequent theory of the plaintiff, announced in its amended complaint,
is not that the defendant "made incursions into the 'mill site' and private roads of the plaintiff,
causing trouble, disturbing public order, and molesting plaintiff's employees and their families," but
only that the defendant, to take tuba to the Hacienda "Sagay," belonging to Luciano Aguirre, insisted
in passing through plaintiff's estate. From all this it follows that the plaintiff in order to obtain a
preliminary injunction, trifled with the good faith of the lower court by knowingly making untrue
allegations on matters important and essential to its cause of action. Consequently, it did not come to
court with clean hands.
"Coming into Equity with Clean Hands. The maxim that he who comes into
equity must come with clean hands is, of course, applicable in suits to obtain relief by
injunction. Injunction will be denied even though complainant shows that he has a right
and would otherwise be entitled to the remedy in case it appears that he himself acted
dishonestly, fraudulently or illegally in respect to the matter in which redress is sought, or
where he has encouraged, invited or contributed to the injury sought to be enjoined.
However, the general principle that he who comes into equity must come with clean
hands applies only to plaintiff's conduct in relation to the very matter in litigation. The
want of equity that will bar a right to equitable relief for coming into court with unclean
hands must he so directly connected with the matter in litigation that it has affected the
equitable relations of the parties arising out of the transaction in question." (32 C.J., pp.
67, 68.)
At this point, attention should be directed to other facts of the case indicative of the
censurable attitude which the plaintiff has taken in connection therewith. On one occasion, the
defendant drove his automobile along the road in question, accompanied by Antonio Dequia, headed
for the Hacienda "Sagay." As they had tuba with them, on reaching the gate they were halted by the
gatekeeper. The defendant and his companion got off the car and unloaded the tuba in order to follow
the passageway across the lands of the Hacienda "Begoa," through which plaintiff's carabaos
passed, until they could reach "Sagay." Thereupon, one Ankerson, accountant and auditor of the
plaintiff, arrived and no sooner had he laid eyes on the tuba containers than he indignantly kicked
them and uttered a blasphemy to both, spilling the contents thereof. The defendant protested and
asked Ankerson to indemnify him for the value of the tuba which had been wasted, to which Ankerson
replied that he would make good what should be paid, and he then and there wrote and handed over

a note to the defendant for presentation to plaintiff's cashier. The defendant presented the note, but
this claim was not paid, and instead he was prosecuted for trespass in the justice of the peace court
of Manapla under article 281 of the Revised Penal Code. So absurd and malicious was the charge that
the court, in acquitting the defendant, entered the following order (Exhibit 3):
"A peaceful citizen who passed through a private road open to the public does not
commit the crime of trespass. Although the prohibition to the accused to be in a private
property should be manifest, if the latter is not fenced or uninhabited, the mere fact that
the accused is found on the place in question, for a lawful purpose, does not constitute
the crime of trespass defined and punished under article 281 of the Revised Penal Code."
The plaintiff did not stop at this; it filed the present action for injunction which, as has been
seen, is nothing more than the culmination of a series of affronts which the plaintiff has perpetrated,
privately and through the courts, against the defendant.
F. The exercise of discretion by trial courts in matters injunctive should not be interfered with
by appellate courts except in cases of manifest abuse.
". . . The court which is to exercise the discretion is the trial court and not the
appellate court. The action of the court may be reviewed on appeal or error in case of a
clear abuse of discretion, but not otherwise, and ordinarily mandamus will not lie to
control such discretion." (32 C.J., sec. 11, p. 33.)
True, the rule has particular application to preliminary injunctions, but the rule should not be
otherwise with respect to permanent injunctions especially where, as in this case, the trial court, after
granting the preliminary injunction, set the same aside in its final decision on a careful review of the
evidence.
II
It is undisputed that the road in question was constructed by the plaintiff on its own land, and
that it connects the central or the "mill site" with the provincial road. We have also the admission that
the plaintiff made this road accessible to the general public, regardless of class of group of persons or
entities. Its use has been extended to employees and laborers of the plaintiff; and so also to all those
who have a mind to pass through it, except that, in cases of motor vehicles, a passage fee of P0.15
each should be paid. There is no contention here that the defendant had refused to pay said tolls
whenever he wanted to drive his car along the road in question.
We, therefore, have the case of an easement of way voluntarily constituted in favor of a
community. Civil Code, article 531 and 594 read:
"ART. 531. Easement may also be established for the benefit of one or more
persons or a community to whom the encumbered estate does not belong."
xxx xxx xxx
"ART. 594. The owner of an estate may burden it with such easements as he may
deem fit, and in such manner and form as he may consider desirable, provided he does
not violate the law or public order."
There is nothing in the constitution of this easement in violation of law or public order, except
perhaps that the right to open roads and charge passage fees therefor is the State's by right of
sovereignty and may not be taken over by a private individual without the requisite permit. This,
however, would effect the right of the plaintiff to charge tools, but not that of the defendant or of any
other person to make use of the easement.
As may be seen from the language of article 594, in cases of voluntary easements, the owner
is given ample liberty to establish them: "as he may deem fit, and in such manner and form as he
may consider desirable." The plaintiff "considered it desirable" to open this road to the public in

general, without imposing any condition save the payment of a fifteen-centavo toll by motor vehicles,
and it may not now go back on this and deny the existence of an easement. Voluntary easements
under article 594 are not contractual in nature; they constitute the act of the owner. If he exacts any
condition, like the payment of a certain indemnity for the use of the easement, any person who is
willing to pay it may make use of the easement. If the contention be made that a contract is
necessary, it may be stated that a contract exists from the time all those who desire to make use of
the easement are disposed to pay the required indemnity.
The plaintiff contends that the easement of way is intermittent in nature and can only be
acquired by virtue of a title under article 539. The defendant, however, does not lay claim to it by
prescription. The title in this case consists in the fact that the plaintiff has offered the use of this road
to the general public upon payment of a certain sum as passage fee in the case of motor vehicles.
The cases of Roman Catholic Archbishop of Manila vs. Roxas (22 Phil., 450), and
Cuaycong vs. Benedicto (37 Phil., 781), are not controlling, as there the attempt was to establish that
the right to an easement of way had been acquired by prescription. Here defendant's contention is,
that while the road in question remains open to the public, he has a right to its use upon paying the
passage fees required by the plaintiff. Indeed the latter may close it at its pleasure, as no period has
been fixed when the easement was voluntarily constituted, but while the road is thrown open, the
plaintiff may not capriciously exclude the defendant from its use.
Furthermore, plaintiff's evidence disclosed the existence of a forcible right of way in favor of
the owner and occupants of the Hacienda "Sagay" under the Civil Code, article 564, because,
according to said evidence, those living in the Hacienda "Sagay" have no access to the provincial
road except thru the road in question. Santiago Plagata, principal witness of the plaintiff, testified
thus: "Emerging from the provincial road, the defendant has necessarily to pass through this private
road where the gate of which I am the keeper is situated, and them he gets to the Central." (S.t., p.5.)
"Q. To go to the Hacienda 'Sagay,' is there any need to cross the 'mill site' of the
Central?
A. Yes, sir.
"Q. And the property of the Central is passed in going to the Hacienda 'Sagay'?
A. Yes, sir.
"Q. Is there any other road"
A. I am not sure whether there is another road.
"Q. For how long have you been a watchman there?
A. Nine years to date.
"Q. And during that period of nine years, can you not state if there is any road which
gives access to the Hacienda 'Sagay'? Or the Central has necessarily to be
passed?
A. I cannot say because I do not go to those places."
"COURT:
"Q. But all the others, except the defendant, who go to the Hacienda 'Sagay' necessarily
pass thru the Central?
A. They pass thru that road of the Central." (S.t., pp. 16, 17.)
The evidence for the defendant confirms this:
"Q. To go there, thru what road did you have to pass?
A. Thru the road of the Central.
"Q. And by this road of the Central you mean the Central 'North Negros Sugar Co., Inc.'?
A. Yes, sir.

"Q. By this road of the Central which you mentioned, you mean the road where there is a
gate, beginning from the Central until the provincial road, where the gate is for
the purpose of preventing passage?
A. Yes, sir, the very one.
"Q. And because of that gate, the Central collects certain toll?
A. Yes, sir." (S.t., pp. 20, 21.)
III
Having been devoted by the plaintiff to the use of the public in general, upon paying the
passage fees required in the case of motor vehicles, the road in question is charged with a public
interest, and while so devoted, the plaintiff may not establish discriminatory exceptions against any
private person.
"When private property is affected with a public interest, it ceases to be juris
privati only; as if a man set out a street in new building on his own land, it is now no
longer bare private interest, but is affected by a public interest." (Lord Chief Justice Hale
in his treatise "De Portibus Maris," quoted with approval in Munn vs. Illinois, 94 U.S., 113
[1876], and in Nebbia vs. New York, 291 U.S., 502 [1934].)
The above language was used in the seventeenth century, when exceptions to the
individualistic regime of ownership were scarcely recognized, and when the ideas on its social
function may be said to be in their infancy.
"Property does become clothed with a public interest when used in a manner to
make it of public consequence, and affect the community at large. When, therefore, one
devotes his property to a use in which the public has an interest, he, in effect, grants to
the public an interest in that use, and must submit to the controlled by the public for the
common good, to the extent of the interest he has thus created. He may withdraw his
grant by discontinuing the use; but, so long as he maintains the use, he must submit to
the control." (Munn vs. Illinois, 94 U.S., 113; 24 Law. ed., 77.)
"Under our form of government the use of property and the making of contracts
are normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract rights
are absolute; for government cannot exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the common
interest. . . . The court has repeatedly sustained curtailment of enjoyment of private
property, in the public interest. The owner's rights may be subordinated to the needs of
other private owners whose pursuits are vital to the paramount interests of the
community." (Nebbia vs. New York, 291 U.S., 502, 521, 525; 78 Law. ed., 940, 948.)
"Whenever any business or enterprise becomes so closely and intimately related
to the public, or to any substantial part of a community, as to make the welfare of the
public, or a substantial part thereof, dependent upon the proper conduct of such
business, it becomes the subject for the exercise of the regulatory power of the state."
(Clarksburg Light & Heat Co. vs. Public Service Commission, P. U.R. 1920A, 639; 84 W.
Va., 638; 100 S.E., 551.)
". . . If the service is dedicated to the public or some portion thereof, or to persons
within a given area, then any member of the public or of the given area, then any
member of the public or of the given class, or any person within the given area, may
demand such service without discrimination, and the public, or so much of it as has
occasion to be served, is entitled to the service of the utility as a matter of right, and not

of grace. . . . A corporation becomes a public service corporation, and therefore subject

to regulation as a public utility, only when and to the extent that the business of such
corporation becomes devoted to a public use. . . ." (Stoehr vs. Natatorium Co., 200 Pac.
[Idaho], 132, quoted in 18 A.L.R., 766.)
"Tested by the rule laid down in Munn vs. Illinois, it may be conceded that the
state has the power to make reasonable regulation of the charges for services rendered
by the stock-yards company. Its stock yards are situated in one of the gateways of
commerce, and so located that they furnish important facilities to all seeking
transportation of cattle. While not a common carrier, nor engaged in any distinctively
public employment, it is doing a work in which the public has an interest, and therefore
must be considered as subject to governmental regulation." (Cotting vs. Godard, 183
U.S., 79; 46 Law. ed., 92.)
"Businesses which, though not public at their inception, may be fairly said to have
risen to be such, and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the public that this is
superimposed upon them. In the language of the cases, the owner, by devoting his
business to the public use, in effect, grants the public an interest in that use, and
subjects himself to public regulation to the extent of that interest, although the property
continues to belong to its private owner, and to be entitled to protection accordingly.
(Munn vs. Illinois,supra; Spring Valley Waterworks vs. Schottler, 110 U.S., 347; 28 L. ed.,
173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117 N.Y., 1, 27; 5 L. R.A., 559; 15 Am. St. Rep.,
460; 22 N.E., 670; s.c. 143 U.S., 517; 36 L.ed., 247; 4 Inters. Com. Rep., 45; 12 Sup. Ct.
Rep., 468; Brass vs. North Dakota, 153 U.S., 391; 38 L. ed., 757; 4 Inters. Com. Rep., 670;
14 Sup. Ct. Rep., 857; Noble State Bank vs. Haskell, 219 U.S., 104; 55 L. ed., 112; 32
L.R.A. [N.S.], 1062; 31 Sup. Ct. Rep., 186; Ann. Cas., 1912A, 487; German Alliance Ins.
Co. vs. Lewis, 233 U.S., 389; 58 L. ed., 1011; L.R.A. 1915C, 1189; 34 Sup. Ct. Rep., 612;
VanDyke vs. Geary, 244 U.S., 39, 47; 61 L. ed., 973, 981; 37 Sup. Ct. Rep., 483;
Block vs. Hirsh, 256 U.S., 135; 65 L. ed., 865; 16 A.L.R., 165; 41 Sup. Ct. Rep., 458.)"
Wolff Packing Co. vs. Court of Industrial Relations, 262 U.S., 522; 27 A.L.R., 1280, 1286.)
Under the facts of the instant case, the road in question is of the nature of the so-called
"turnpike road" or "toll-road." The following authorities are, therefore, in point:
"'Toll' is the price of the privilege to travel over that particular highway, and it is
a quid pro quo. It rests on the principle that he who receives the toll does or has done
something as an equivalent to him who pays it. Every traveler has the right to use the
turnpike as any other highway, but he must pay the toll." (City of St. Louis vs. Creen, 7
Mo. App., 468, 476.)
"A toll road is a public highway, differing from ordinary public highways chiefly in
this: that the cost of its construction in the first instance is borne by individuals, or by a
corporation, having authority from the state to built it, and, further, in the right of the
public to use the road after its completion, subject only to the payment of toll." (Virginia
Caon Toll Road Co. vs. People, 45 Pac., 396, 399; 22 Colo., 429; 37 L.R.A., 711.)
"Toll roads are in a limited sense public roads, and are highways for travel, but we
do not regard them as public roads in a just sense, since there is in them a private
proprietary right. . . . The private right which turnpike companies possess in their roads
deprives these ways in many essential particulars of the character of public roads. It
seems to us that, strictly speaking, toll roads owned by private corporation, constructed

and maintained for the purpose of private gain, are not public roads, although the people
have a right to freely travel them upon the payment of the toll prescribed by law. They
are, of course, public, in a limited sense, but not in such a sense as are the public ways
under full control of the state, for public ways, in the strict sense, are completely under
legislative control. (Elliott, Roads & S., p. 5.)" (Board of Shelby County
Com'rs vs. Castetter, 33 N.E., 986, 987; 7 Ind. App., 309.)
It has been suggested during the consideration of the case at bar that the only transportation
companies with motor vehicles who can have an interest in passing over the said road are those
which carry laborers of the central and passengers who transact business with the plaintiff, and not all
public service motor vehicles with certificates of public convenience, and that the only persons who
may have an interest in passing over the said road are the laborers of the plaintiff and persons who
do business with it and the occupants of the 21 houses situated in the Hacienda "Sagay," and not
everyone for personal convenience. But even if this were true, the plaintiff having subjected the road
in question to public use, conditioned only upon the payment of a fifteen-centavo passage fees by
motor vehicles, such circumstance would not affect the case at all, because what stamps a public
character on a private property, like the road in question, is not the number of persons who may have
an interest in its use, but the fact that all those who may desire to use it may do so upon payment of
the required indemnity.
". . . The public or private character of the enterprise does not depend, however,
upon the number of persons by whom it is used, but upon whether or not it is open to the
use and service of all members of the public who may require it, to the extent of its
capacity; and the fact that only a limited number of persons may have occasion to use it
does not make of it a private undertaking if the public generally has a right to such
use. . . ." (51 C.J., sec. 2, p. 5.).
"The test is, not simply how many do actually use them, but how many may have
a free and unrestricted right in common to use them. If it is free and common to all
citizens, then no matter whether it is or is not of great length, or whether it leads to or
from a city, village or hamlet, or whether it is much or little used, it is a 'public road.'"
(Heninger vs. Peery, 47 S. E., 1013, 1014; 102 Va., 896, quoting Elliott, Roads & S., secs.
11, 192.)
The circumstance that the road in question does not properly fall within the definition of a
public utility provided in Act No. 3108, does not divest it of this character:
". . . Whether or not a given business, industry, or service is a public utility does
not depend upon legislative definition, but upon the nature of the business or service
rendered, and an attempt to declare a company or enterprise to be a public utility, where
it is inherently not such, is, by virtue of the guaranties of the federal constitution, void
wherever it interferes with private rights of property or contract. So a legislature cannot
by mere fiat or regulatory order convert a private business or enterprise into a public
utility, and the question utility is a judicial one, and must be determined as such by a
court of competent jurisdiction;. . .." (51 C.J., sec. 3, p. 5.)
The road in question being a public utility, or, to be more exact, a private property affected
with a public interest, it is not lawful to make arbitrary exceptions with respect to its use and
enjoyment.
"Duty to Serve Without Discrimination. A public utility is obligated by the nature
of its business to furnish its service or commodity to the general public, or that part of
the public which it has undertaken to serve, without arbitrary discrimination, and it must,
to the extent of its capacity, serve all who apply, on equal terms and without distinction,

so far as they are in the same class and similarly situated. Accordingly, a utility must act
toward all member of the public impartially, and treat all alike; and it cannot arbitrarily
select the persons for whom it will perform its service or furnish its commodity, nor
refuse to one a favor or privilege it has extended to another, since the term 'public utility'
precludes the idea of service which is private in its nature and is not to be obtained by
the public. Such duties arise from the public nature of a utility, and statutes providing
affirmatively therefor are merely declaratory of the common law." (51 C.J., sec. 16, p. 7.)
The circumstance that the plaintiff is not the holder of a franchise or of a certificate of public
convenience, or that it is a company devoted principally to the manufacture of sugar and not to the
business of public service, or that the state has not as yet assumed control or jurisdiction over the
operation of the road in question by the plaintiff, does not preclude the idea that the said road is a
public utility.
"The touchstone of public interest in any business, its practices and charges,
clearly is not the enjoyment of any franchise from the state. (Munn vs.Illinois [94 U.S.,
113; 24 L. ed., 77, supra].)" (Nebbia vs. New York, supra.)
"The fact that a corporation may not have been given power to engage in the
business of a public utility is not conclusive that it is not in fact acting as a public utility
and to be treated as such." (51 C.J., p. 5.)
"The question whether or not it is such does not necessarily depend upon whether
it has submitted or refused to submit to the regulatory jurisdiction of the state, nor upon
whether or not the state has as yet assumed control and jurisdiction, or has failed or
refused so to do." (51 C.J., p. 6.)
"The fact that a corporation does other business in addition to rendering a public
service does not prevent it from being a public utility, and subject to regulation as such,
as to its public business." (51 C.J., p. 6.)
"The term 'public utility' sometimes is used to mean the physical property or plant
being used in the service of the public." (51 C.J., p. 6.)
"There are . . . decisions in which the incidental service has been held to be of
such a nature that it was subject to public regulation and control. (Re Commonwealth
Min. & Mill. Co. [1915; Ariz.], P.U.R., 1915B, 536; Nevada, C. & O. Teleg. & Teleph.
Co. vs. Red River Lumber Co. [1920; Cal.], P.U.R., 1920E, 625; Sandpoint Water & Light
Co. vs. Humberd Lumber Co. [1918; Idaho], P.U.R., 1918B, 535; Public Service
Commission vs. Valley Mercantile Co. [1921; Mont.],P.U.R., 1921D, 803; Public Service
Commission vs. J.J. Rogers Co. [1918], 184 App. Div., 705; P.U.R., 1919A, 876; 172 N.Y.
Supp., 498; Wingrove vs.Public Service Commission [1914], 74 W. Va., 190; L.R.A., 1918A,
210; 81 S.E., 734; Chambers vs. Spruce Lighting Co. [1918], 81 W. Va., 714; 95 S. E.
192. See also Hoff vs. Montgomery [1916; Cal.], P.U.R., 1916D, 880; Re Producers
Warehouse [1919; Cal.], P.U.R., 1920A, 919; Ticer vs. Philips [1920; Cal.], P.U.R., 1920E,
582; Re Ontario Invest. Co. [1921; Cal.], P.U.R., 1922A, 181; Bassett vs. Francestown
Water Co. [1916; N.H.], P.U.R., 1916B, 815, Re Northern New York Power Co. [1915; N. Y.,
2d Dist.], P.U.R., 1915B, 70.)" (Annotation in 18 A.L.R., 766, 767.)
The point is made that, there being no contract between the plaintiff and the public interested
in the use of the road in question, it should be understood that such use has been by the mere
tolerance of the plaintiff, and that said property has not been constituted into a public utility. The
contention is devoid of merit.
"When private property is devoted to public use in the business of a public utility,
certain reciprocal rights and duties are raised by implication of law between the utility

and the public it undertakes to serve, and no contract between them is necessary to give
rise thereto. . . ." (51 C.J., sec. 12, p. 6.).
Wherefore the judgment appealed from is affirmed, with costs to the plaintiff.
Abad Santos, J., concurs.
Separate Opinions
LAUREL, J., concurring and dissenting:
I concur in the result. I do not, however, agree to certain conclusions and observations that are
made in the foregoing opinion.
I. I am of the opinion that no servitude of way under the Civil Code has been created on the
tenement of the plaintiff in favor of the defendant.
Servitudes constitute legal limitations on the right of ownership. They are considered so
among the most ancient of property rights. The early Roman Law allowed the imposition of a
servitude of way over intervening tenements for the purpose of enabling strangers to reach the
sepulchres of their ancestors. The modern civil law, however, has amplified the principle and invested
it with a utilitarian concept for the convenience of landowners, particularly for the cultivation of
enclosed rural estates. But the general principles of the Roman Law regarding servitudes, whether
praedial or personal, are preserved intact in the modern civil law, and are now commonly applied to
the "easements" of the common law. Among these general principles which have come down to us
through the ages are (1) that servitudes are to be considered subordinate to the right of ownership,
and (2) that, being a sort of dismemberment of the right of private property, servitudes are never to
be presumed but must be proved to have been constituted in the manner prescribed by law.
A servitude of way is either legal or voluntary. A forced servitude of way is constituted in the
manner and under the conditions stated in articles 564 to 570 of the Civil Code. Paragraph 1 of article
564 provides that "The owner of a tenement or land, surrounded by others belonging to different
owners and without access to a public highway, is entitled to demand a right of way through the
neighboring tenements, after payment of the proper indemnity."
No legal servitude of way exists in the present case. The defendant has not shown that his
right of passage across the tenement of the plaintiff exists by reason of necessity growing out of the
peculiar location of his property. He does not even own the tenement where he conducts his business.
Said tenement belongs to Luciano Aguirre who, as the owner thereof, would be the one entitled to
claim the forced servitude of way, on the hypothesis that it is demanded by the peculiar location of
the tenement. A mere lessee can not demand the legal servitude of way (see Manresa, Civil Code, vol.
4, 2d ed., p. 705). Moreover, it does not appear that Luciano Aguirre or the defendant has otherwise
fulfilled the requirements of the law. (Art. 564, Civil Code; Cuaycong vs. Benedicto, 37 Phil., 781,
797.).
Nor can it be said that a voluntary servitude of way exists. It should be observed that a right of
way is discontinuous or intermittent as its use depends upon acts of man (art. 532, Civil Code; 4
Manresa, Civil Code, 2d ed., p. 569; Cuaycong vs. Benedicto, supra). Lacking the element of
continuity in its use, a right of way may not be acquired by prescription but solely by title (art. 539,
Civil Code). Only continuous and apparent servitudes, like the servitude of light and view, may be
acquired by prescription (art. 537, Civil Code). Even assuming, however, that a servitude of way may
be acquired by prescription in view of the provisions of the present Code of Civil Procedure,
nevertheless, it can not be held that prescription exists in the present case. The free passage over the
private way rests on mere tolerance on the part of the plaintiff, and it is a settled principle of law in
this jurisdiction that acts merely tolerated can not give rise to prescription (Cortes vs. Yu-Tibo, 2 Phil.,
24, 27; Ayala de Roxas vs. Maglonso, 8 Phil., 745; Roman Catholic Archbishop of Manila vs. Roxas, 22

Phil., 450, 452, 453; Municipality of Nueva Caceres vs. Director of Lands and Roman Catholic Bishop
of Nueva Caceres, 24 Phil., 485; Cuaycong vs. Benedicto, supra)
In what does the title of the plaintiff consist? By title as a mode of acquiring servitude, the Civil
Code refers to the "juridical act" which gives birth to the servitude. "Son, pues, titulos constitutivos de
los servidumbres cualquiera que sea su clase, la ley, la donacion, el contrato y el testamento" (4
Manresa, Civil Code, 2d ed., pp. 594, 595). Title by law is lacking. There is neither will nor donation,
for the making of a donation and the execution of a will require special formalities. It is elementary
that the plaintiff, being an artificial person, has no capacity to execute a will. In my opinion, there is
no title by contract. The act of the plaintiff in opening the private way here involved did not constitute
an offer to the public to use said way. There being no offer, there could be no acceptance; hence, no
contract.
The plaintiff did not encumber his tenement with a servitude of way. Property is always
presumed free from any and all encumbrances. The act of the plaintiff, performed wholly upon its own
exclusive property, should not be construed to constitute the creation of a servitude. Servitus in
faciendo consistere nequit. "For a man should not use that which belongs to him as if it were a service
only, but as his own property" (Law 13, title 31, thirdpartida, quoted with approval in Cortes vs. YuTibo, 2 Phil., 24, 27).
II. The mere opening of the private way in question to the public did not necessarily clothe it
with a public interest such as to compel the owner thereof to allow everybody to pass thereon. Even
on the hypothesis that such private way is affected with a public interest, still, it is good law that the
owner thereof may make reasonable restrictions and limitations on the use thereof by the general
public.
Public regulation of private property under the police power is often justified on the ground
that the property so regulated is affected with a public interest." The phrase "affected with a public
interest" was brought into prominence by the discussion in Lord Hale's treatise De Portibus Maris (1
Hargrave's Law Tracts, 78) of more than two centuries ago where the classic statement was made
that when private property "is affected with a public interest, it ceases to be juris privati only."
Chief Justice Taft, speaking for the Supreme Court of the United States in Wolff Packing
Co. vs. Court of Industrial Relations (262 U.S., 522; 67 Law. ed., 1103, 1108), enumerated as follows
the businesses and occupations which may be said to be clothed with a public interest:
"(1) Those which are carried on under the authority of a public grant of privileges
which either expressly or impliedly imposes the affirmative duty of rendering a public
service demanded by any member of the public. Such are the railroads, other common
carriers and public utilities.
"(2) Certain occupations, regarded as exceptional, the public interest attaching to
which, recognized from earliest times, has survived the period of arbitrary laws by
Parliament or colonial legislatures for regulating all trades and callings. Such are those of
the keepers of inns, cabs, and gristmills. (State vs. Edwards, 86 Me., 102; 25 L.R.A., 504;
41 Am. St. Rep., 528; 29 Atl., 947; Terminal Taxicab Co. vs. Kutz, 241 U.S., 252, 254; 60
Law. ed., 984, 986; P.U.R. 1916D, 972; 36 Sup. Ct. Rep., 583; Ann. Cas. 1916D, 765.)
"(3) Businesses which, though not public at their inception, may be fairly said to
have risen to be such, and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the public that this is
superimposed upon them. In the language of the cases, the owner, by devoting his
business to the public use, in effect grants the public an interest in that use, and subjects
himself to public regulation to the extent of that interest, although the property continues
to belong to its private owner, and to be entitled to protection accordingly.

(Munn vs. Illinois,supra; Spring Valley Waterworks vs. Schottler, 110 U.S., 347; 28 Law.
ed., 173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117 N.Y., 1, 27; 5 L.R.A., 559; 15 Am. St.
Rep., 460; 22 N.E., 670; s.c. 143 U.S., 517; 36 Law. ed., 247; 4 Inters. Com. Rep., 45; 12
Sup. Ct. Rep., 468; Brass vs. North Dakota, 153 U.S., 391; 38 Law. ed., 757; 4 Inters. Com.
Rep., 670; 14 Sup. Ct. Rep., 857; Noble State Bank vs. Haskell, 219 U. S., 104; 55 Law.
ed., 112; 32 L.R.A. [N.S.], 1062; 31 Sup. Ct. Rep., 186; Ann. Cas. 1912A, 487; German
Alliance Ins. Co. vs. Lewis, 233 U.S., 389; 58 Law. ed., 1011; L.R.A. 1915C, 1189;34 Sup.
Ct. Rep., 612; VanDyke vs. Geary, 244 U.S., 39, 47; 61 Law. ed., 973, 981; 37 Sup. Ct.
Rep., 483; Block vs. Hirsh, 256 U.S., 135; 65 Law. ed., 865; 16 A.L.R., 165; 41 Sup. Ct.
Rep., 458.)
The term "affected with a public interest" is incapable of exact apprehension. "What
circumstances shall affect property with a public interest is not very clear." (Cooley, Constitutional
Limitations, 7th ed., p. 872.) "It requires no especial acuteness of mind," says Willoughby in his
valuable work on the Constitution of the United States, "to see that, in truth, no clear line of
distinction can be drawn." (Vol. 3, 2d ed., pp. 1758, 1759. See also German Alliance Ins. Co. vs. Lewis,
233 U.S., 389; 34 Sup. Ct., 612; 58 Law. ed., 1011; L.R.A. [1915C], 1189.)
To my mind, the road in question may not be likened unto a turnpike or toll road in the legal
sense of the term. The right to construct and maintain a toll or turnpike road and to collect tolls exists
only by virtue of an express grant from the legislature. (Powell vs. Sammons and Dotes, 31 Ala., 552;
Blood vs. Woods, 30 P., 129; 95 Cal., 78; Volcano Caon Road Co. vs. Placer County, 26 P., 513; 88
Cal., 634; Truckee, and Tahoe Turnpike Road Co. vs.Campbell, 44 Cal., 89; Virginia Caon Toll-Road
Co. vs. People, 45 P., 398; 22 Colo., 429; 37 L.R.A., 711; Pike County Justices vs. Griffin, etc., Plank
Road Co., 9 Ga., 475; Wadsworth vs. Smith, 11 Me., 278; 26 Am. D., 525; State vs. Louisiana, etc.,
Gravel Road Co., 92 S.W., 153; 116 Mo. App., 175 String vs. Camden, etc., Turnpike Co., 40 A., 774; 57
N.J. Eq., 227; In re People, 128 N.Y.S., 29; 70 Misc., 72; Turner vs. Eslick, 240 S.W., 786; 146 Tenn.,
236; Peru Turnpike Co.vs. Town of Peru, 100 A., 679; 91 Vt., 295; L.R.A. [1917E], 559;
Ferguson vs. Board of Sup'rs of Roanoke County, 113 S.E., 860; 133 Va., 561; Rainy Lake River
Corp. vs. Rainy River Lumber Co., 27 Ont. L., 151; 6 Dom. L.R., 401; 22 Ont. W.R. 952.) So that if there
has been no state grant, there can be no toll or turnpike road. In the case before us, the private way
has been established and is being maintained by the plaintiff, a private entity, for its own
accommodation and not by virtue of a grant from the state.
But even if we were to assume that the private way of the plaintiff here is property clothed
with a public interest, the only inference would be that it is subject to governmental or public
regulatory and control or, as some courts put it, to the regulatory power of the state, exercised for the
common good (Fisher vs. Yangco Steamship Co., 31 Phil., 1; De Villata vs. Stanley, 32 Phil., 541; 51
C.J., p. 9) by the legislature (State vs. Holm, 138 Minn., 281; 164 N.W., 989), either directly or through
administrative bodies endowed with power to that end (Atlantic Coast Line R. Co. vs. North Carolina
Corp. Comm., 206 U.S., 1; 27 S. Ct., 585; 51 Law. ed., 933; 11 Ann. Case, 398; In re Petition for
Increase of Street Car Fares, 179 N.C., 151; 101 S.E., 619).
The philosophy inseparable from the logic of the adjudicated cases is based on the
overwhelming power of regulation possessed by the state in the public interest. A finding, therefore,
that the private way in question is property affected with a "public interest" leads to a recognition of
the public power or regulation and no more. The fact, for instance, that the plaintiff has opened a way
to the public and charges a fee or toll on motor vehicles for hire may lead the legislature or the
administrative authorities to intervene and regulate and, if necessary, to determine the
reasonableness of the fee charged under its ratefixing authority.

Even as regards public utilities, courts have held with unerring uniformity that the utility itself
may prescribe rules and regulations for the due and proper conduct of its business, and the protection
of itself against fraud, injury or undue risk and liability, the only limitations being that said rules shall
be lawful and reasonable. The utility may enforce compliance with its rules by those dealing with it
and may refuse or discontinue service to one who does not conform to its rules. (See
Thurston vs. Union Pacific R. Co., 4 Dill. [U.S.], 321;23 Fed. Cas. No. 14019; 13 Alb. L.J., 393; 8 Chic.
Leg. N., 323; 22 Int. Rev. Rec., 251; Brown vs. Memphis, & C.R. Co., 5 Fed., 499; 7 Fed., 51;
Gray vs. Cincinnati Southern R. Co., 11 Fed., 683; Hewlett vs. Western Union Tel. Co. [C.C.], 28 Fed.,
181; Bluthenthal vs. Southern Ry. Co., 84 Fed., 920; Armstrong vs. Montgomery St. Ry. Co. vs. 123
Ala., 233; 26 So., 349; Birmingham Ry., L. & P. Co. vs. Littleton, 201 Ala., 141; 77 So., 565, 570;
Weigand vs. Alabama Power Co., 177 So., 206; McCook vs. Northup, 65 Ark., 225; 45 S.W., 547;
California Powder Works vs. Atlantic & P.R. Co., 113 Cal., 329; 45 Pac., 691; 36 L.R.A., 648; Southern
Ry. Co. vs. Watson, 110 Ga., 681; 36 S.E., 209; Southern Ry. Co. vs. Howard, 111 Ga., 842; 36 S.E.,
213; Macon, etc. Ry. Co. vs. Johnson, 28 Ga., 409; Coyle vs. Southern Ry. Co. vs. Motes, 117 Ga., 923;
43 S.E., 990; 62 L.R.A., 507; 97 Am. St. Rep., 223; Southern Ry. Co. vs. Bailey, 143 Ga., 610; 85 S.E.,
847, 848; L.R.A. [1915E], 1043; Railroad Commn. vs. Louisville, etc., R. Co., 140 Ga., 817; 80 S.E.,
327; L.R.A. [1915E], 902; Ann. Cas. [1915A], 1018; Huston vs. City Gas. etc., Co., 158 Ill. App., 307;
Chicago, etc., R. Co. vs.Williams, 55 Ill., 185; 8 Am. Rep. 641; Milwaukee Malt Extract Co. vs. Chicago,
etc. R. Co., 73 Iowa, 98; 34 N.W., 761; Gregory vs. Chicago, etc. R. Co., 100 Iowa, 345; 69 N.W., 532;
Pittsburg, etc., R. Co. vs. Vandyne, 57 Ind., 576; 26 Am. Rep., 68; Louisville, etc., R. Co. vs. Wright, 18
Ind. App., 125; 147 N.E., 491; Cox vs. City of Cynthiana, 123 Ky., 363;96 S.W., 456; 29 Ky. L., 780;
Louisville Tobacco Warehouse Co. vs. Louisville Water Co., 162 Ky., 478; 172 S.W., 928;
McDaniel vs. Faubush Tel. Co., 106 S.W., 825;32 Ky. L., 572; Day vs. Owen, 5 Mich., 520; 72 Am. Dec.,
62; Faber vs. Chicago Great Western R. Co., 62 Minn., 433; 64 N.W., 918; 36 L.R.A., 789;
Daniel vs. North Jersey St. Ry. Co., 64 N.J.L., 603;46 Atl., 625; State vs. Water Supply Co. of
Albuquerque, 19 N.W., 36; 140 P., 1059,1060; L.R.A. [1915A], 246; Ann. Cas. [1916E0, 1290;
People vs. Babcock, 16 Hun. [N.Y.], 313; Freedon vs. New York Cent., etc., R. Co., 24 N.Y. App. Div.,
306;48 N.Y. Sup., 584; Montgomery vs. Buffalo Ry. Co., 24 N.Y. App. Div., 454; 48 N.Y. Sup., 849;
Dowd vs. Albany Ry. Co., 47 N.Y. App. Div., 202;62 N.Y. Sup., 179; Peck vs. N.Y. Cent., etc., R. Co., 70
N.Y., 587; Texas, etc., R. Co. vs. Johnson, 2 Tex. App. Civ. Cas., sec. 185; Guthrie Gas. Co. vs. Board of
Education, 64 Okl., 157; 166 P., 128; L.R.A. [1918D], 900; Henderson Coal Co. vs. Public Serv.
Commn., 73 Pa. Super., 45; McMillan vs. Federal St., etc., Ry. Co., 172 Pa. St., 523; 33 Atl., 560;
State vs. Goss, 59 Vt., 266; 9 Atl., 829;59 Am. Rep. 706; Stevenson vs. West Seattle Land, Williams,
55 Ill., 185; 8 Am. Rep., 641.) That a corporation engaged in business affected with "public interest"
may prescribe reasonable rules and charges for conducting its business is well settled.
(McDaniel vs. Faubush Telephone Co., supra.) This is a right which exists independently of any
statutory enactment (Weigand vs. Alabama Power Co., supra).
That persons engaged in business clothed with a "public interest" may make reasonable
discriminations may, furthermore, be illustrated by taking innkeepers as an example. The keeper of
an inn may make reasonable and proper rules governing the conduct of his business (14 R.C.L., p.
502). In so doing, he may refuse to receive as guests those who do not come in a situation in which
they are fit to be received (Bonner vs. Welborn, 7 Ga., 296, 334, 337; Bowlin vs. Lyon, 67 Ia., 536; 25
N.W., 766; 56 Am. Rep., 355; Markham vs. Brown, 8 N.H., 523; 31 Am. Dec., 209; State vs. Steele, 106
N.C., 766; 11 S.E., 478; 19 A.S.R., 573; 8 L.R.A., 516; Pidgeon vs. Legge, 5 Week. Rep., 649). He may,
therefore, admit to his inn only persons of good character and well demeaned (Clemons vs. Meadows,
123 Ky., 178; 94 S.W., 13; 124 A.S.R., 339;6 L.R.A. [N.S.], 847; Atwater vs. Sawyer, 76 Me., 539;49 Am.
Rep., 634), and those who are free from any contagious or infectious disease (Jackson vs. Virginia Hot

Springs Co., 213 Fed., 969). A person who is disorderly or is of suspicious, immoral or objectionable
character may be refused admission by the innkeeper (Markham vs. Brown, supra;
Goodenow vs. Travis, Johns., 427; Holden vs. Carraher, 195 Mass., 392; 81 N.E., 261; 11 Ann. Cas.,
724; State vs. Steele, supra; McHugh vs. Schlosser, 159 Pa. St., 480; 28 Atl., 291;39 A.S.R., 699;23
L.R.A., 574; Nelson vs. Bodt, 180 Fed., 779; Watkins vs. Cope, 84 N.J.L., 143;86 Atl., 545;
Fraser vs. McGibbon, 10 Ont. Week. Rep., 54; Howellvs. Jackson, 6 Car. & P., 723; Rex vs. Ivens, 7 Car.
& P., 213; Thompson vs. McKenzie, 1 K.B., 905; 77 L.J.K.B.N.S., 605; 98 L.T.N.S., 896; 24 Times L. Rep.,
330; 72 J.P., 150; 52 Sol. Jo., 302; Goodenow vs. Travis, 3 Jonhs., 427). And a person who, once inside
the inn, does not demean properly may be refused further service and may be ejected, by force, if
necessary (Lehnan vs. Hines, 88 Kan., 58; 127 Pac., 612;42 L.R.A, [N.S.], 830 and note;
Holden vs. Carraher, 195 Mass., 392; 81 N.E., 261; 11 Ann. Cas., 724 and note; De Wolf vs. Ford, 193
N.Y., 397; 86 N.E., 527; 127 A.S.R., 969; 21 L.R.A. [N.S.], 860; State vs. Steele,supra;
McHugh vs. Scholsser, supra; Chase vs. Knabel, 46 Wash., 484; 90 Pac., 642; 12 L.R.A. [N.S.], 1155; 2
British Rul. Cas., 692). Even the exclusion of patrons on account of the race to which they belong has
been sustained improperly, I believe, on the ground that they are objectionable to other patrons and
injure thereby the business of the innkeeper (State vs. Steele, supra). And it has been held that a
prize fighter who had broken the laws of various states (Nelson vs. Boldt, 180 Fed., 779;
Watkins vs. Cope, supra), or a card sharp (Watkins vs. Cope, supra), or a persons who has the habit of
visiting inns with big dogs which were an annoyance to the guests and a nuisance to the innkeeper
(Reg. vs. Rymer, L.R. 2 Q.B. Div., 136; 46 L.J. Mag. Cas. N.S., 108; 25 Week Rep., 415; 13 Cox, C.C.,
378; 35 L.T.N.S., 774) may be refused admission.
In the case at bar, it is not seriously contended that the plaintiff, by opening the road in
question, has become a public utility. In this jurisdiction, the term "public utility" has a technical
meaning and refers to the enterprises mentioned in section 13 of Act No. 3108, as amended by Act
No. 4033. This is admitted in the foregoing opinion. The difficulty arises because "public utility" is
confused with "public interest."
III. The foregoing opinion, by denying the right of the owner of the private way to impose what
I consider is a reasonable limitation upon the use of its property, undermines the right of ownership
and its incidents.
Briefly stated, the case is this: Plaintiff is the owner of a sugar central and the premises on
which it is located in Manapla, Occidental Negros. Realizing the necessity of constructing a private
way through its property for its own convenience and the convenience of persons who may have
dealings with it, it did open one to connect its property with the provincial road. The way is about a
kilometer in length and terminates at the mill site of the hacienda. It was built at the expense of the
power, without any contribution from anyone. It is repaired, maintained and kept at the expense of
the same owner. It is guarded by a gate keeper employed and paid by the owner itself. It was opened
not at the behest of any public demand or necessity but primarily for the sole convenience of the
owner. The defendant, Serafin Hidalgo, is the keeper of a tienda situated in a contiguous hacienda
belonging to Luciano Aguirre. The tienda is located almost on the borderline of the hacienda of the
plaintiff. Hidalgo in this store sells and otherwise dispenses tuba which intoxicates the laborers of the
plaintiff, incapacitates them for work and breaks their morale. The damage to the plaintiff is positive
and real. It is not mere "bare possibility" as stated in the foregoing opinion. Upon these facts, the
foregoing opinion holds that the defendant can not be prohibited by the plaintiff from using the
latter's private way. I hold otherwise. I believe that the plaintiff may prohibit the defendant from using
its private property. Stated otherwise, the use by Hidalgo of the private way of the plaintiff may be
conditioned upon his not carrying tuba. Plaintiff may not, to be sure, prevent the sale of tuba outside
the limits of its property. This is not pretended in this case. But because plaintiff may not prohibit

dispensation by the defendant of the intoxicating beverage outside of its property, does it follow that
it is in duty bound to offer facility to the defendant for the sale of tuba and the consequent
intoxication of its laborers? Is it under any obligation, moral or legal, to do this? In other words, can
plaintiff be compelled to contribute, directly or indirectly, to the infliction upon itself of an admittedly
real and positive damage and provide the means for its own destruction? To ask these questions is to
answer them. That you may, for instance, hang a man because you have the physical or legal power
to do so is conceivable, but that you may not only hang him but also compel him to hang himself is
only possible among barbarians. Such a result is not possible even under the Declaration of Rights of
the Laboring and Exploited People by the Third All-Russian Congress of Soviets of Workers', Soldiers'
and Peasants' Deputies." Let me observe that social and economic equilibrium should be maintained
by striking the proper balance. One extreme is as vicious and dangerous as the other. There is as
much danger of destruction from the devastating winds blowing from the Caucasus and the Ural
mountains as from the infectious and hallowed breath originating from the castles of the staggering
feudal lords of Europe. Social storm is produced one way or the other.
The inviolability of private property dates as far back as the days long past when primative
society employed force to protect its collective ownership. Upon the change of the proprietary tenure
from collectivism to individualism, consequent upon the growth of the Roman concept of property,
private force was substituted by state authority as the sanctioning power of ownership. Later
evolution of civil society manifested the growth of state power. The Philippines finds herself engulfed
in the vortex of this modern trend of greater state control of private property. Our Constitution, for
instance, expressly authorizes the National Assembly to determine by law the size of private
agricultural land which individuals, corporations and associations may acquire and hold, subject only
to rights existing prior to the enactment of such law (Art. XII, sec. 3). It also provides that the State,
upon payment of just compensation, may transfer to public ownership utilities and other private
enterprises to be operated by the Government (Art. XII, sec. 1). And it permits the National Assembly
to authorize, upon payment of just compensation, the expropriation of lands to be subdivided into
small lots and conveyed at cost to individuals (Art. XII, sec. 4). This latter provision constitutes an
extension of the power of eminent domain. The settled principle is that private property shall be taken
only for public use (Visayan Refining Co. vs. Camus and Paredes, 40 Phil., 550; People ex rel. Detroit &
H.R. Co. vs.Salem, 20 Mich., 452; 4 Am. Rep., 500). A provision to this effect is found in the Bill of
Rights of our Constitution (Art. III, sec. 1, par. 2. See also Ordinance appended to the Constitution,
sec. 1, par. 12; Civil Code, art. 349; Code of Civil Procedure, sec. 241; Adm. Code, sec. 2245.) Similar
provisions are to be found in the Fifth Amendment to the Constitution of the United States and in the
constitutions of the great majority of the states of the Union. Some state constitutions even go to the
extent of expressly prohibiting the taking of property for private use (Alabama [1901], I, 23; Arizona
[1912], II, 17; Colorado [1876], II, 14, 15; Georgia [1877] I, iii, par. I; Missouri [1875], II, 20;
Washington [1889], I, 16; Wyoming [1889], I, 32, 33). But whilst innovations have been introduced to
enlarge the control by the public power of private property, the Filipino philosophy of the inviolability
of property right has tarried unaltered behind the thin veneer of our Constitution. By providing in the
Bill of Rights that no person shall be deprived of property without due process of law, that private
property shall not be taken for public use without just compensation, that the people shall be secure
in their possessions against unreasonable searches and seizures, that no law impairing the obligation
of contracts shall be passed, the Filipino people, for their own protection, stamped upon the right of
private ownership an inviolability a deep and sacred impress which can not be easily wiped out
or frittered away until it is no more. The protection of private right, it seems to me, is a reflection of
our inherent temperament as a people, and albeit fundamental principles must be construed in the

light of changing conditions and circumstances, the fabric with which our social and political
organizations have been wrought or woven into a lasting whole, has remained unaltered. And not
even the principle of social justice, vital and salutary as it is, can be invoked to annihilate property
rights.
Restrictions upon the paramount property right lodged in the private individual arise only from
the superior right of the state, the legal rights of third persons and the general duties resting upon the
owner as a law abiding citizen. In the language of Chief Justice Shaw in Commonwealth vs. Alger (7
Cush. [Mass.], 53), "We think it as a settled principle, growing out of the nature of well ordered civil
society, that every holder of property, however absolute and unqualified may be his title, holds it
under the implied liability that his use of it may be so regulated, that it shall not be injurious to the
equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to
the rights of the community. All property in this commonwealth, as well that in the interior as that
bordering on tide-waters, is derived directly or indirectly from the government, and held subject to
those general regulations, which are necessary to the common good and general welfare. Rights of
property, like all other social and conventional rights, are subject to such reasonable limitations in
their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and
regulations established by law, as the legislature, under the governing and controlling power vested
in them by the Constitution, may think necessary and expedient." (See also Mugler vs. Kansas, 123
U.S., 623;8 Sup. Ct., 273; 31 Law. ed., 205.)
IV. From what has been said, it does not, however, follow that plaintiff is entitled to the
equitable remedy of injunction. In the first place, the plaintiff styled the relief it is seeking as an
"Accion Negatoria" which, under the old Spanish procedural law and under the Roman law, consisted
in the right of a landowner to defend the free dominion of his tenement. This action which has specific
application to servitudes has, however, been repealed by the Code of Civil Procedure now in force.
The right of the plaintiff should, consequently, be tested by the rules governing the issuance of the
new remedy of injunction. The circumstances under which, in accordance with the former procedural
law, the accion negatoria could properly issue, would not necessarily justify the issuance of an
injunction, as defined and provided in the new Code (as to the other Spanish interdictos de adquirir,
de retenerand de recobrar or de despojo, see Devesa vs. Arbes, 13 Phil., 273, 279;
Liongson vs. Martinez, 36 Phil., 948, 952). In the second place, injunction, being an equitable remedy,
the granting thereof is dependent upon the sound discretion of the court (32 C.J., pp. 29-33; 14 R.C.
L., pp. 307, 308). It is only in clear cases of abuse of discretion on the part of the trial judge that
review on appeal would be made (32 C.J., p. 33). "There is no power the exercise of which is more
delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a
doubtful case, than the issuing an injunction; it is the strong arm of equity, that never ought of law
cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury
impending or threatened, so as to be averted only by the protecting preventing process of injunction."
(Bonaparte vs. Camden, etc., R. Co., 3 Fed. Cas. No. 1617; Baldw., 205, 217.) In the third place, the
remedy sought here is not against the transportation of tuba by the defendant through the premises
of the plaintiff, but the entire exclusion therefrom of the defendant regardless of whether he
carries tuba or not. In the fourth place, the revocation of the judgment of the court below would
exclude the defendant alone from the use of the private way while the general public will be
permitted to do so. The defendant would be excluded not only from the use of the private premises of
the plaintiff, but also from the way left open to the public, regardless of whether he is carrying tuba or
not. The result being clearly unjust, the extraordinary legal remedy of injunction should not be
granted. (Truly vs. Wanzer, 5 How., 141; 12 Law. ed., 99; Irwin vs. Dixion, 9 How., 11; 13 Law. ed., 25;
Sands vs. Marburg, 36 Ga., 534; 91 Am. Dec., 781; Beindenkopf vs. Des Moines Life Ins. Co., 160 Ia.,

629; 142 N.W., 434; 46 L.R.A. [N.S.], 290; Edwards vs. Alluez Min. Co., 38 Mich., 46;31 Am. Rep., 301;
Troy, etc., R. Co. vs. Boston, etc., Ry. Co., 86 N.Y., 107; Eastman Kodak Co. vs. Warren, 108 Misc., 680;
178 N.Y.S., 14 [reversed on other grounds, 189 App. Div., 556; 179 N.Y.S., 325; Farmervs. St. Paul, 65
Minn., 176;67 N.W., 990;33 L.R.A., 199]; Marvel vs. Jonah, 81 N.J. Eq., 369; 86 A., 968 [reversed on
other grounds, 83 N.J. Eq., 295;90 A., 1004, L.R.A. (1915B), 206; Rogers vs. O'Brien, 153 N.Y., 357;47
N.E., 456; Wendell vs. Conduit Mach. Co., 74 Misc., 201; 133 N.Y.S., 758; Higgins vs. Higgins, 57 N.H.,
224; Atchinson etc., Ry. Co. vs. Meyer, 62 Kan., 696;64 P., 597; Cincinnati, etc. R. Co. vs. Miami, etc.
Transp. Co., 1 Oh. Cir. Ct. (N.S.), 117; Ardmore vs.Fraley, 65 Okl., 14; 162 P., 211;
Heilman vs. Lebanon, etc., St. Ry. Co., 175 Pa., 188;34 A., 647; Messner vs. Lykens, etc., R.Co., 13 Pa.
Super., 429; Mackintyrevs. Jones, 9 Pa. Super., 543; Speese vs. Schuylkill River East Side R.Co., 10 Pa.
Dist., 515].).
In closing, I cannot but condemn the action of O.P. Ankerson, auditor of the plaintiff company,
in overturning the receptacles (balading) of tuba, which the defendant attempted to carry through the
premises of the plaintiff company, in defiance of the latter's repeated prohibition. Righteous
indignation at the misconduct of an employee of the plaintiff company and the damage caused the
defendant, however, should not carry us beyond the merits of the present controversy. The protection
of the property rights of the plaintiff is one thing and the condemnation of the acts of vandalism of an
employee of the plaintiff another thing.
Avancea, C.J. and Diaz, J., concur.
VILLA-REAL, J., dissenting:
I concur with the opinion of Justice Laurel in so far as he dissents from the opinion of Justice
Recto, but I dissent from it in so far as he concurs with said opinion.
In concurring with the opinion of Justice Recto, Justice Laurel says: "In the fourth place, the
revocation of the judgment of the court below would exclude the defendant alone from the use of the
private way while the general public will be permitted to do so. The defendant would be excluded not
only from the use of the private premises of the plaintiff, but also from the way left open to the public,
regardless of whether he is carrying tuba or not. The result being clearly unjust, the extraordinary
legal remedy of injunction should not be granted." The facts in this case show that said defendant
was warned several times not to pass on said road when carrying tuba to the adjoining "Hacienda
Sagay" where he sells it to the plaintiff's workmen who become intoxicated and unfit for work. The
repeated warnings were disregarded by the defendant, until one day the auditor of the said plaintiff
became so disgusted that he could not refrain from stopping his car and compelling him to unload
the tuba. If the North Negros Sugar Co., Inc., as the owner of the private road in question, has a right
to regulate its use by imposing reasonable restrictions and limitations, to prohibit its use by the
defendant who has repeatedly disregarded the warning of its auditor, thus becoming a persona non
grata, is certainly not unjust. To force the owner of a private road to allow the use of said road by a
person who has incurred his displeasure, if not his hatred, just because he allows other persons to
pass through it, cannot under whatever consideration, be just. In order to avoid taking the law into its
own hands in excluding the defendant who has become an undesirable person to it, the plaintiff, as a
law abiding corporation, has come to the courts to seek help in the enforcement of its property rights.
The opinion of Justice Laurel, concurred in by the Chief Justice and Justice Diaz, while recognizing the
right of said plaintiff to regulate the use of its private road by imposing upon the users reasonable
restrictions and limitations, refuses it the remedy it seeks to help it in preventing an undesirable
person to use its private road, leaving to it no alternative except either to take the law into its own
hands or to close the road to everybody with the exception of those who deal with it in its business.

I am, therefore, of the opinion that the writ of injunction, as an auxiliary remedy, should be
granted, and the judgment of the court below should be revoked.
Imperial, J., concurs.
Footnotes
1.The sworn statement was in fact presented by the plaintiff's manager Greenfield (p. 4, B.E.)
||| (North Negros Sugar Co., Inc. v. Hidalgo, G.R. No. 42334, [October 31, 1936], 63 PHIL 664-711)
SECOND DIVISION
[G.R. No. L-7248. May 28, 1955.]
AMADO BERNARDO, petitioner, vs. THE HONORABLE COURT OF APPEALS FOURTH
DIVISION, JUANA DEL ROSARIO, SIXTA DEL ROSARIO and PEDRO DE
JESUS, respondents.
Siojo & Valentin for petitioner.
Tesoro & Cruz for respondents.
SYLLABUS
1. EASEMENT; RIGHT OF WAY; AGREEMENT OF JUDGMENT ON SUCH RIGHT MUST BE
RESPECTED. There is no question that the agreement or promise of the owners of servient estate
gave a right to the owner of the dominant estate to continue using the foot-path from his lot to the
barrio road. The agreement was not exactly an act of liberately because it was based on a
consideration. As long as the owners of the servient estates continued as owners of said lots over
which the foot-path extended, they could close the same because they were bound by the agreement
and by the judgment rendered on the basis thereof, they being parties not only to the agreement but
also to the action on which the judgment was rendered.
2. ID.; ID.; ALIENATION OF SERVIENT ESTATES TO PERSONS; HOW RIGHT OF WAY PROTECTED.
In order to protect right of way from the effect of possible alienation of servient estates to third
persons and to enforce such right against the whole world it is necessary to register the judgment and
to annotate the same in the certificates of titles of the servient estates so as to continue the right of
way and to constitute a direct charge on said estates as contemplated by sections 50 and 52 of Act
496 otherwise known as Land Registration Law. With the registration and annotation, any and every
transferee or assignee of said servient estates would have to respect such right of way.
DECISION
MONTEMAYOR, J p:
The facts in this case are not disputed. Petitioner Amado Bernardo and respondents Juana del
Rosario, Sixta del Rosario and Pedro de Jesus own adjoining lots in a large parcel of land formerly
known as the Toro-Lolomboy Estate. Bernardo's lot 119-B as shown on the sketches Annexes "A" and
"Y" happen to be in the interior and has no access by road to the barrio road to the west or to the
provincial highway to the southeast; but for many years Bernardo and other persons, from his lot, in
order to reach the barrio road on the other side of which are the church and an artesian well, had
been allowed by Juana, Sixta, and Pedro De Jesus who own lots 117, 27 and 28-A, respectively, to
pass over a foot-path which goes through their lots. It seems that possibly due to some

misunderstanding Juana, Sixta and de Jesus, especially the latter, did not look with favor on Bernardo
continuing to use this foot-path, and de Jesus even put up a fence across this foot-path at the spot
where it crosses his lot. So, Bernardo filed an action, against Juana, Sixta, and De Jesus, Civil Case No.
487 of the Court of First Instance of Bulacan, to establish a right of way from his lot to the barrio road,
about two meters wide and about 70 meters long, more or less, as shown on Annex "Y", claiming that
he needed this proposed road for the use of his jeep because he has a business establishment on his
lot, and that it was his only access to the barrio road; at the same time he expressed his willingness
to pay any amount to be determined by the court for the use of said space, including damages.
In their answers the defendants practically admitted the existence of the foot-path for many
years and used as such by Bernardo. Juana and Sixta said they never put up any obstacle to
Bernardo's continuing to use said foot-path and De Jesus stated that although he built a fence across
said path, said fence was so low that even a child could pass over it. But the three of them objected
to the establishment of a regular road saying that it would cause incalculable damage to their
properties. According to the record the trial judge made an ocular inspection of the premises
presumably to determine the feasibility and advisability of establishing or opening up a road for the
use of Bernardo and other persons leading toward the barrio road or to the provincial highway to the
southeast and to find the most suitable route, although it does not appear that said trial judge ever
made of record the result of his inspection. However, either because of the result of this ocular
inspection or to settle the case amicably, the parties Bernardo, Juana, Sixta and De Jesus, entered into
a written agreement ratified by them before a notary public and submitted by their counsel to the
lower court, with a prayer that judgment be rendered in accordance therewith. Acting upon said
written agreement the trial court in a decision dated September 17, 1951, reproduced and approved
said agreement saying:
"Por lo tanto, este Tribunal dicta sentencia en los mismos terminos y condiciones
en que esta redactado el convenio arriba acotado para todos los efectos legales, sin
pronunciamiento en cuanto a las costas.
"ASI SE ORDENA."
Under clause 4 of the agreement Juana, in consideration of P100 paid by Bernardo, agreed to give the
latter a right of way two meters wide over her lot 119-A from Bernardo's lot, southeastward toward
the provincial highway as shown by Annexes "A" and "Y", provided that Bernardo aside from the P100
obligated himself to pay whatever damages may result from the construction of said right of way.
Then under clause 5 there is a paragraph the interpretation of which is the root of the present
controversy and which we reproduce for purposes of reference:
"that for the convenience of Amado Bernardo, in going to and from the Barrio
Road, Juana del Rosario, Sixta del Rosario and Pedro de Jesus, will allow and tolerate the
said Amado Bernardo to pass by foot thru their own individual lots Nos. 117; 27 and 28-A
respectively indicated in Annex "A", as in the past he had been so doing, and Pedro de
Jesus allowing further Amado Bernardo to put stones or gravel, which may facilitate
passage thru his Lot 28-A." (Italics ours).
After the judgment based on the agreement already mentioned had become final Bernardo tried to
register the same for purposes of annotation on the corresponding certificates of title of Juana, Sixta
and de Jesus. The register of deeds presumably told him that to do so, he must need and have the
owner's duplicate certificates of title of said persons, and so Bernardo made written demands on
them. Juana was agreeable to delivering her owner's duplicate certificate of title for lot 119-A
evidently because she had expressly granted the right of way over her lot in consideration of P100
plus possible damages but she as well as Sixta and De Jesus refused to give up their owners'
duplicate certificates of title for lots 117, 27 and 28-A, crossed by the foot-path. In view of their

refusal Bernardo filed a motion before the trial court to compel them to make delivery for purposes of
annotation. The trial judge by order dated January 2, 1952, denied the motion on the ground that
Bernardo already had a right of way over lot 119-A of Juana from his lot southeastward to the
provincial highway, and that there was no need for him to have another one (Referring to the footpath from his lot westward to the barrio road); that the tenor of the paragraph under clause 5, did not
recognize or establish an easement of right of way but only expressed the tolerance and permission
of the lot owners to pedestrian using the foot-path, as shown by the phrase "will allow and tolerate."
Failing to secure the reconsideration of this order, Bernardo appealed the same to the Court of
Appeals.
Acting upon the appeal, the Court of Appeals after reproducing the agreement aforementioned
particularly the second paragraph of clause 5 affirmed the order appealed from saying that the
second paragraph of clause 5 could not have created a right of easement. We reproduce this
particular holding of the Court of Appeals:
"And this proviso could not have created right of easement. Since it stipulates that
appellees 'will allow and tolerate the said Amado Bernardo to pass by foot thru their own
individual Lots Nos. 117; 27 and 28-A respectively indicated in Annex 'A', as in the past
he had been so doing', Bernardo could pass by foot through the properties referred to
only as long as, and when, he were tolerated to do so. A judgment so conditioned cannot
vest a real right."
After citing the case of Archbishop of Manila vs. Roxas, 22 Phil. 450, the Court of Appeals
concluded:
"Therefore, the judgment relied upon by appellant created no real right in his
favor and, consequently, he is not entitled to inscribe it in the Office of the Register of
Deeds, in accordance with section 51 of Act No. 496, as amended."
Dissatisfied with said decision of the Court of Appeals, Bernardo has come to us on appeal through
certiorari.
After a careful study of the case particularly the second paragraph of clause 5 of the
agreement, we fail to agree to the conclusion arrived at by the trial court and the Court of Appeals.
The case of Archbishop of Manila vs. Roxas, supra, in our opinion is not applicable. That case correctly
held that passage by third persons over an unenclosed estate merely tolerated by the owner does not
give any right to those passing over it, regardless of the passage of time, and that the owner of said
land may at any time enclose it and stop passage over it. In the present case, however, the owners of
the different lots over which Bernardo used to pass by foot from his lot westward to the barrio road
presumably to go to church and to the artesian well, not only tolerated said passage but in a written
agreement signed by them before a notary public and later submitted to the court for judgment,
promised and undertook to allow and tolerate Bernardo to continue using said foot-path. It will be
remembered that this agreement was based on a sort of compromise, evidently to end the case filed
by Bernardo against them and to prevent him from legally establishing over their properties a regular
2-meter road for his jeep, which proposed road, according to them, would cause much damage to
their properties as well as inconvenience to themselves. In other words, they practically said to
Bernardo, that provided that he did not insist in having the court compel them to allow the
establishment of a regular 2-meter road over their properties, they promised to allow and permit him
to continue using the foot-path which runs over their lots and which he had been using in the past.
And to show the element of permanence of said use of the foot-path by Bernardo, de Jesus even
allowed him to improve it by placing stones and gravel on that portion included in his lot 28-A.

It may be stated in this connection in order to make it clear why Bernardo was so interested in
having a way from his lot westward to the barrio road and to the church and the artesian well, that
said foot-path is only about 71 meters long, whereas, his right of way southeastward from his lot to
the provincial highway according to Annex "Y" is 90 meters long, and from said junction to the church
partly over the provincial highway and partly over the barrio road is a distance of about 1,168 meters
or a total of 1 kilometer and 258 meters, which is certainly, quite far.
There is no question that the agreement or promise of the three defendants-respondents gave
a right to Bernardo to continue using the foot-path from his lot to the barrio road. The agreement was
not exactly an act of liberality because it was based on a consideration. As a result, as long as the
three defendants-respondents continued as owners of lots 117, 27 and 28-A over which the foot-path
extended, they could not close the same to Bernardo because they were bound by the agreement and
by the judgment rendered on the basis thereof, they being parties not only to the agreement but also
to the action on which the judgment was rendered. But supposing that said three defendants sold
their lots to third persons, would these vendees be bound to respect this right of Bernardo to use the
foot-path? Clearly, they would not be bound because neither the agreement already mentioned nor
the judgment rendered thereon is binding on them, they being not parties thereto. So the only way
Bernardo could protect himself against such a contingency and to enforce his right against the whole
world, was to register the judgment and to annotate the same on the certificates of title of the three
lots in question so that his right to continue using the foot-path would constitute a direct charge on
these three lots as contemplated by sections 50 and 52 of Act 496 otherwise known as the Land
Registration Law. With the registration and annotation, any and every vendee or assignee of said lots
would have to respect this right of Bernardo.
In view of the foregoing, the decision of the Court of Appeals is hereby reversed; the order of
the trial court dated January 2, 1952, denying Bernardo's motion to compel defendants Juana, Sixta
and De Jesus to deliver their duplicate certificates of title over their lots 117, 27 and 28-A, is set aside
and said trial court is directed to grant said motion of Bernardo and compel the delivery of said
certificates of title to the Register of Deeds for the corresponding annotation desired by Bernardo.
Respondents with the exception of the Court of Appeals will pay costs in both instances.
Pablo, Bengzon, Reyes, A., Bautista Angelo, Concepcion and Reyes, J.B.L., JJ., concur.
Separate Opinions
LABRADOR, J., dissenting:
The pertinent portions of the agreement entered into as compromise, and which was approved
by the court, are as follows:
"4. That Juana del Rosario, for and in consideration of the sum of ONE HUNDRED
(P100) PESOS, Philippine Currency, paid by Amado Bernardo for a right of way, Juana del
Rosario, owner and possessor of the riceland is on the East of the residential lot owned
and possessed by Amado Bernardo and forming part of Lot No. 119, described in
paragraphs 1 and 2 above, do hereby by this agreement, agree to give a right of way to
the said Amado Bernardo over a strip of land . . ."
xxx xxx xxx
"That for the convenience of Amado Bernardo, in going to and from the Barrio
Road, Juana del Rosario, Sixta del Rosario and Pedro de Jesus, will allow and tolerate the
said Amado Bernardo to pass by foot thru their own individual Lots No. 117; 27 and 28-A
respectively indicated in Annex 'A', as in the past he had been so doing, and Pedro de
Jesus allowing further Amado Bernardo to put stones or gravel which may facilitate
passage thru his Lot 28-A." (Annex "A")

I find no justification from the terms of the compromise above set forth for concluding that Juana del
Rosario, Sixta del Rosario and Pedro de Jesus granted or intended to grant a registrable right of way
over their individual lots, Nos. 119, 117 and 27 and 28-A, respectively. In the first place, the first part
of the compromise agreement uses the term right of way, referring to petitioner's right over a parcel
of rice land of Juana del Rosario, whereas, the second part, which is the one in question, does not use
said term, and states that respondents will only "allow and tolerate Amado Bernardo to pass by foot
thru their individual lots as in the past he had been doing." If the intention of the parties had been to
create a right of way as in the first part of the agreement, there would have been no occasion to use
language different from that used in the first part. In the second place, consideration was actually
paid for the right of way, while no indemnity was paid for the use of the footpath. In the third place,
the parties must be deemed to have used the terms "allow" and "tolerate" in the sense that these
words are understood in our law and in jurisprudence, thus:
"Art. 537. Acts merely tolerated and those executed clandestinely and without the
knowledge of the possessor of a thing, or by violence, do not affect possession." (Civil
Code of the Philippines)
"Hence, it is that the use of the windows opened in a wall on 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 . . . and does not
create any right to maintain the windows to the prejudice of the latter. 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 effect of possession according to Article 1942 of the Civil Code,
because it is a mere possession at will." (Cortes vs. Yu Tibo, 2 Phil. 24, cited in I Civil Code
by Padilla, p. 635)
"Although a road leading through an estate has been used by the tenants of
another estate, by people attending a house of public worship, and by the public
generally for a great number of years, no easement is thereby created when the facts
show that such use has been merely for convenience . . . A different doctrine would have
a tendency to destroy all neighborhood accommodations in the way of travel; for if it
were once understood that a man, by allowing his neighbor to pass through his farm
without objection over the pass-way which he used himself, would thereby, after the
lapse of time, confer a right on such neighbor to require the pass-way to be kept open for
his benefit and enjoyment, a prohibition against all such travel would immediately ensue.
(Archbishop of Manila vs. Roxas, 22 Phil. 450, cited in I Civil Code by Padilla, p. 740).
The use of the clause "as in the past he had been so doing" shows that the privilege granted under
the agreement could not go beyond the privilege that he had been using in the past.
Another but no less potent reason for sustaining the conclusion of the Court of Appeals is the
fact that there is no provisions in the agreement which expressly authorizes the registration of the
privilege to use the footpath. If it was the intention of the parties to so agree, why did they not
stipulate that the permission to use the footpath should be registered? This Court, or any court for
that matter, does not possess the right to extend the scope of the agreement entered into solemnly
by the parties before the court; the agreement should be considered as containing all the terms that
the parties wanted to insert therein. If the parties wanted said privilege to be recognized, they should
have expressed it in their agreement. After the said agreement had been formally executed, no
deductions or inferences should be allowed to be inserted therein without the consent of the parties.
The conclusion of the Court of Appeals is entirely in accord with the agreement and should be
affirmed.

||| (Bernardo v. Court of Appeals, G.R. No. L-7248, [May 28, 1955], 97 PHIL 131-140)
SECOND DIVISION
[G.R. No. 80511. January 25, 1991.]
COSTABELLA CORPORATION, petitioner, vs. COURT OF APPEALS, KATIPUNAN
LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., JOSEFA C.
REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO, and CESAR T.
ESPINA, respondents.
Roco, Bunag, Kapunan & Migallos for petitioner.
Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.
Zosa & Quijano Law Offices for respondents.
SYLLABUS
1. CIVIL LAW; EASEMENT; RIGHT OF WAY; CANNOT BE ACQUIRED BY PRESCRIPTION. It is already wellestablished that an easement of right of way is discontinous and as such can not be acquired by
prescription.
2. ID.; ID.; ID.; REQUISITES OF COMPULSORY DEMAND THEREOF. Based on Articles 649 and 650 of the
New Civil Code, the owner of the dominant estate may validly claim a compulsory right of way only after
he has established the existence of four requisites, to wit: (1) the (dominant) estate is surrounded by
other immovables and is without adequate outlet to a public highway; (2) after payment of the proper
indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is
at a point least prejudicial to the servient estate. Additionally, the burden of proving the existence of the
foregoing pre-requisites lies on the owner of the dominant estate.
3. ID.; ID.; ID.; STANDARD FOR GRANT. 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,
even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude
is entirely unjustified. For to justify the imposition of an easement of right of way, "there must be a real,
not a fictitious or artificial necessity for it."
4. ID.; ID.; ID.; DEMANDED BY NECESSITY. Servitudes of right of way are an ancient concept, which date
back to the iter, actus, and via of the Romans. They are demanded by necessity, that is, to enable owners
of isolated estates to make full use of their properties, which lack of access to public roads has denied
them. Under Article 649 of the Civil Code, they are compulsory and hence, legally demandable, subject to
indemnity and the concurrence of the other conditions above-referred to.
5. ID.; ID.; ID.; CRITERIA FOR GRANT. But while a right of way is legally demandable, the owner of the
dominant estate is not at liberty to impose one based on arbitrary choice. Under Article 650 of the Code,
it shall be established upon two criteria: (1) at the point least prejudicial to the servient estate; and (2)
where the distance to a public highway may be the shortest. According, however, to one commentator,
"least prejudice" prevails over "shortest distance." Yet each case must be weighed according to its
individual merits and judged according to the sound discretion of the court. "The Court," says Tolentino,
"is not bound to establish what is the shortest; a longer way may be established to avoid injury to the
servient tenement, such as when there are constructions or walls which can be avoided by a roundabout
way, or to secure the interest of the dominant owner, such as when the shortest distance would place the
way on a dangerous decline."
DECISION

SARMIENTO, J p:
The principal issue raised in this petition for review on certiorari of the decision 1 dated May 30, 1986 of
the Court of Appeals, 2 which modified the decision3 rendered by the Regional Trial Court of Lapu-Lapu
City in Cebu, is whether or not the private respondents had acquired an easement of right of way, in the
form of a passageway, on the petitioner's property.
It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and 5124
of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had constructed a
resort and hotel. The private respondents, on the other hand, are the owners of adjoining properties more
particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.
Before the petitioner began the construction of its beach hotel, the private respondents, in going to and
from their respective properties and the provincial road, passed through a passageway which traversed
the petitioner's property. In 1981, the petitioner closed the aforementioned passageway when it began
the construction of its hotel, but nonetheless opened another route across its property through which the
private respondents, as in the past, were allowed to pass. (Later, or sometime in August, 1982, when it
undertook the construction of the second phase of its beach hotel, the petitioner fenced its property thus
closing even the alternative passageway and preventing the private respondents from traversing any
part of it.)
As a direct consequence of these closures, an action for injunction with damages was filed against the
petitioner by the private respondents on September 2, 1982 before the then Court of First Instance of
Cebu. 4 In their complaint, the private respondents assailed the petitioner's closure of the original
passageway which they (private respondents) claimed to be an "ancient road right of way" that had been
existing before World War II and since then had been used by them, the community, and the general
public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-Lapu City and
other parts of the country. The private respondents averred that by closing the alleged road right of way
in question, the petitioner had deprived them access to their properties and caused them damages. prLL
In the same complaint, the private respondents likewise alleged that the petitioner had constructed a
dike on the beach fronting the latter's property without the necessary permit, obstructing the passage of
the residents and local fishermen, and trapping debris and flotsam on the beach. They also claimed that
the debris and flotsam that had accumulated prevented them from using their properties for the purpose
for which they had acquired them. The complaint this prayed for the trial court to order the re-opening of
the original passageway across the petitioner's property as well as the destruction of the dike. 5
In its answer, 6 the petitioner denied the existence of an ancient road through its property and counteraverred, among others, that it and its predecessors-in-interest had permitted the temporary, intermittent,
and gratuitous use of, or passage through, its property by the private respondents and others by mere
tolerance and purely as an act of neighborliness. It justified the walling in of its property in view of the
need to insure the safety and security of its hotel and beach resort, and for the protection of the privacy
and convenience of its hotel patrons and guests. At any rate, the petitioner alleged, the private
respondents were not entirely dependent on the subject passageway as they (private respondents) had
another existing and adequate access to the public road through other properties. With respect to the
dike it allegedly constructed, the petitioner stated that what it built was a breakwater on the foreshore
land fronting its property and not a dike as claimed by the private respondents. Moreover, contrary to the
private respondents' accusation, the said construction had benefited the community especially the
fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and
debris which had formed on the private respondents' beach front on the other hand were but the natural
and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the

sea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead as
defendants the owners of the other properties supposedly traversed by the alleged ancient road right
way, indispensable parties without whom no final adjudication of the controversy could be rendered. 7
After trial, the court a quo rendered a decision on March 15, 1984 finding that the private respondents
had acquired a vested right over the passageway in controversy based on its long existence and its
continued use and enjoyment not only by the private respondents, but also by the community at large.
The petitioner in so closing the said passageway, had accordingly violated the private respondents'
vested right. Thus, the trial court ordered the petitioner:
1. To open and make available the road in question to the plaintiffs and the general public
at all times free of any obstacle thereof, unless the defendant shall provide another road
equally accessible and convenient as the road or passage closed by the defendant;
2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND
PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff Perfecto Guangco
the sum of TWO HUNDRED PESOS (P200.00) a month beginning September, 1982,
representing their respective expenditures they had incurred in other beach resorts after
the road was closed, until the passageway claimed by them is opened and made
available to them, or if the defendant chooses to provide another road, until such road is
made available and conveniently passable to the plaintiffs and the general public; and
3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees, and to pay
the costs. 8
Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioning the
alleged "vested right" of the private respondents over the subject passageway, and the private
respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the
petitioner's "dike" is concerned. LLphil
In its decision, the respondent Appellate Court held as without basis the trial court's finding that the
private respondents had acquired a vested right over the passageway in question by virtue of
prescription. 9 The appellate court pointed out that an easement of right of way is a discontinuous one
which, underArticle 622 of the New Civil Code, may only be acquired by virtue of a title and not by
prescription. 10 That notwithstanding, the appellate court went on to rule that ". . . in the interest of
justice and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating
the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is
not dependent upon the claims of the parties but a compulsory one that is legally demandable by the
owner of the dominant estate from the owner of the servient estate." 11 Thus the appellate court: (1)
granted the private respondents the right to an easement of way on the petitioner's property using the
passageway in question, unless the petitioner should provide another passageway equally accessible and
convenient as the one it closed; (2) remanded the case to the trial court for the determination of the just
and proper indemnity to be paid to the petitioner by the private respondents for the said easement; and
(3) set aside the trial court's award of actual damages and attorney's fees. 12
On petitioner's motion for partial reconsideration, the respondent court issued on October 27, 1987 a
resolution 13 denying the said motion. The Appellate Court however in denying the petitioner's motion
for reconsideration stated that:
. . . While it is true that there is another outlet for the plaintiff to the main road, yet such
outlet is a new road constructed in 1979, while the road closed by defendant existed
since over 30 years before. Legally, the old road could be closed; but since the existing
outlet is inconvenient to the plaintiff, equitably the plaintiff should be given a chance to
pay for a more convenient outlet through the land of the defendant at a point least

prejudicial to the latter. In any event, the plaintiff shall pay for all damages that
defendant corporation may sustain and the defendant regulates the manner of use of the
right of way to protect defendant's property and its customers. This is the gist of Our
decision. 14
Now before us, the petitioner contends that the decision of the respondent appellate court is grossly
erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on easements
and the prevailing jurisprudence on the matter.
The petition is meritorious.
It is already well-established that an easement of right of way, as is involved here, is
discontinuous 15 and as such can not be acquired by prescription. 16Insofar therefore as the appellate
court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct
pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision
and the dismissal of the complaint after holding that no easement had been validly constituted over the
petitioner's property. Instead, the Appellate Court went on to commit a reversible error by considering the
passageway in issue as a compulsory easement which the private respondents, as owners of the
"dominant" estate, may demand from the petitioner the latter being the owner of the "servient" estate.
It is provided under Articles 649 and 650 of the New Civil Code that:
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. llcd
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.
Art. 650. 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.
Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of way
only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is
surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of
the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way
claimed is at a point least prejudicial to the servient estate. Additionally, the burden of proving the
existence of the foregoing pre-requisites lies on the owner of the dominant estate. 17
Here, there is absent any showing that the private respondents had established the existence of the four
requisites mandated by law. For one, they failed to prove that there is no adequate outlet from their
respective properties to a public highway. On the contrary, as alleged by the petitioner in its answer to
the complaint, and confirmed by the appellate court, "there is another outlet for the plaintiffs (private
respondents) to the main road." 18 Thus, the respondent Court of Appeals likewise admitted that "legally
the old road could be closed." 19 Yet, it ordered the re-opening of the old passageway on the ground that
"the existing outlet (the other outlet) is inconvenient to the plaintiff." 20 On this score, it is apparent that

the Court of Appeals lost sight of the fact that the convenience of the dominant estate has never been
the gauge for the grant of compulsory right of way. 21 To be sure, 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, even if the said outlet, for one reason or another, be inconvenient, the need
to open up another servitude is entirely unjustified. For to justify the imposition of an easement or right of
way, "there must be a real, not a fictitious or artificial necessity for it." 22
Further, the private respondents failed to indicate in their complaint or even to manifest during the trial
of the case that they were willing to indemnify fully the petitioner for the right of way to be established
over its property. Neither have the private respondents been able to show that the isolation of their
property was not due to their personal or their predecessors-in-interest's own acts. Finally, the private
respondents failed to allege, much more introduce any evidence, that the passageway they seek to be reopened is at a point least prejudicial to the petitioner. Considering that the petitioner operates a hotel
and beach resort in its property, it must undeniably maintain a strict standard of security within its
premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be
compromised. That indubitably will doom the petitioner's business. It is therefore of great importance
that the claimed right of way over the petitioner's property be located at a point least prejudicial to its
business.
Hence, the private respondents' properties can not be said to be isolated, for which a compulsory
easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as a
controversy for a compulsory right of way, this Court is constrained to hold that it was in error. LexLib
Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the
Romans. 23 They are demanded by necessity, that is, to enable owners of isolated estates to make full
use of their properties, which lack of access to public roads has denied them. 24 Under Article 649 of the
Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and the
concurrence of the other conditions above-referred to.
As also earlier indicated, there must be a real necessity therefor, and not mere convenience for the
dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the
"dominant" estate can not demand a right of way, although the same may not be convenient. Of course,
the question of when a particular passage may be said to be "adequate" depends on the circumstances
of each case. Manresa, however, says: "In truth, not only the estate which absolutely does not possess it
should be considered in this condition, but also that which does not have one sufficiently safe or
serviceable; an estate bordering a public road through an inaccessible slope or precipice, is in fact
isolated for all the effects of the easement requested by its owner. On the other hand, an estate which for
any reason has necessarily lost its access to a public road during certain periods of the year is in the
same condition. . . . There are some who propound the query as to whether the fact that a river flows
between the estate and the public road should be considered as having the effect of isolating the estate .
. . If the river may be crossed conveniently at all times without the least danger, it cannot be said that
the estate is isolated; in any other case, the answer is in the affirmative." 25
The isolation of the dominant estate is also dependent on the particular need of the dominant owner, and
the estate itself need not be totally landlocked. What is important to consider is whether or not a right of
way is necessary to fill a reasonable need therefor by the owner. 2 6 Thus, as Manresa had pointed out, if
the passageway consists of an "inaccessible slope or precipice," 27 it is as if there is no passageway, that
is, one that can sufficiently fulfill the dominant owner's necessities, although by the existence of that
passageway the property can not be truly said that the property is isolated. So also, while an existing
right of way may have proved adequate at the start, the dominant owner's need may have changed since
then, for which Article 651 of the Code allows adjustments as to width. 28

But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to
impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon two
criteria: (1) at the point least prejudical to the servient state; and (2) where the distance to a public
highway may be the shortest. According, however, to one commentator, "least prejudice" prevails over
"shortest distance." 29 Yet, each case must be weighed according to its individual merits, and judged
according to the sound discretion of the court. "The court," says Tolentino, "is not bound to establish what
is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when
there are constructions or walls which can be avoided by a roundabout way, or to secure the interest of
the dominant owner, such as when the shortest distance would place the way on a dangerous
decline." 30
It is based on these settled principles that we have resolved this case. prLL
WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the
respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSED.
Costs against the private respondents.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
Footnotes
1.Ejercito, Bienvenido C., J., ponente, Coquia, Jorge R., and Castro-Bartolome, Floreliana, JJ., concurring; Rollo, 5259.
2.The Court of Appeals was impleaded as a party respondent by virtue of the Court Resolution dated September
11, 1989.
3.Penned by Judge Teodoro K. Risos; Rollo, id., 44-50.
4.Rollo, id., 11.
5.Id., 28-31.
6.Id., 12.
7.Id., 33-42.
8.Id., 50.
9.Id., 57.
10.Id.
11.Id., 58.
12.Id., 59.
13.Id., 61.
14.Id.
15.Ronquillo vs. Roco, 103 Phil. 84 (1958); Cuaycong vs. Benedicto, 37 Phil. 781 (1918).
16.CIVIL CODE, art. 622; Ronquillo vs. Roco, supra, Cuaycong vs. Benedicto, supra.
17.Locsin vs. Climaco, No. L-27319, January 31, 1969, 26 SCRA 816; Angela Estate, Inc. vs. Court of First Instance
of Negros Occidental, No. L-27084, July 31, 1968, 24 SCRA 500; Bacolod-Murcia Milling Co., Inc. vs. Capitol
Subdivision, No. L-25887, July 26, 1966, 17 SCRA 731.
18.Rollo, id., 61.
19.Id.
20.Id.
21.Rivera vs. Intermediate Appellate Court, No. 74249, January 20, 1989, 169 SCRA 307; Ramos, Sr. vs. Gatchalian
Realty, Inc., No. 75905, October 12, 1987, 154 SCRA 703.
22.Ramos, Sr. vs. Gatchalian Realty, Inc., supra, 712; see also, II TOLENTINO, CIVIL CODE OF THE PHILIPPINES 371.
(1972 ed.).
23.II FRANCISCO, CIVIL CODE OF THE PHILIPPINES, 787.
24.Id.
25.Id., 789.
26.Id., 790.
27.Id., 789.
28.Id., 790.
29.TOLENTINO, id., 373.
30.Id., 374.
||| (Costabella Corp. v. Court of Appeals, G.R. No. 80511, [January 25, 1991], 271 PHIL 350-362)

THIRD DIVISION
[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.
Esteban M. Mendoza for petitioner.
Oscar Gozos for private respondents.
SYLLABUS
1. CIVIL LAW; EASEMENTS; RIGHT OF WAY; ABSENCE OF ACCESS TO A PUBLIC ROAD. 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.
2. ID.; ID.; ID.; WIDTH OF THE PASSAGE DETERMINED BY THE NEEDS OF THE DOMINANT PROPERTY.
Under Article 651 of the Civil Code, 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.
3. ID.; ID.; ID.; ID.; CASE AT BAR. 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 accommodate his jeepney
since that is a reasonable and necessary aspect of the plant nursery business.
4. ID.; ID.; ID.; PAYMENT OF INDEMNITY WHERE EASEMENT IS CONTINUOUS AND PERMANENT. Where
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.
DECISION
FERNAN, C.J p:
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 Matienso 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 wide was 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 none 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 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-square-meter 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 (plaintiff's)
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.

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. 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. LexLib
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 counterproductive for all the people concerned. Petitioner should not be denied a passageway wide enough to
accommodate 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 (11/2) 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
(11/2) meters wide over the servient estate or a total area of 62.5 square meters after payment of the
proper indemnity.
SO ORDERED. Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.
Footnote
her heirs. None of the children resides in the estate
*The name "Aniceta de Sagun Viuda de Magsino" in the
which as of 1985 is being administered by Aniceta's
original caption of the instant petition is erroneous.
brother, Mamerto Magsino. (Original Record, pp. 77See the captions in the Complaint and the
78; TSN, August 9, 1985, pp. 22, 30-31).
subsequent Decision of the trial court. (Original
1.TSN, August 9, 1985, pp. 17-19; July 19, 1985, p. 30.
Records, pp. 1 and 103).
2.Civil Case No. T-392.
**The servient estate originally belonged to Eusebio de Sagun,
3.Rollo, p. 33.
the son of Aniceta Magsino Vda. de Sagun. After
4.Jariol vs. Court of Appeals, G.R. No. 57641, October 23,
Eusebio's death, his widow Elena sold her share of
1982, 117 SCRA 913.
the estate to her mother-in-law and co-heir Aniceta.
5.See Original Record, pp. 44-45.
During the pendency of the civil case for the grant of ||| (Encarnacion v. Court of Appeals, G.R. No. 77628, [March 11,
easement, Aniceta also died leaving six children as 1991], 272-A PHIL 27-33)

SECOND DIVISION
[G.R. No. 90596. April 8, 1991.]
SOLID MANILA CORPORATION, petitioner, vs. BIO HONG TRADING CO., INC. and
COURT OF APPEALS, respondents.
Balgos & Perez for petitioner.
Alfredo G. de Guzman for private respondent.
SYLLABUS
1. CIVIL LAW; PROPERTY; OWNERSHIP AND ITS MODIFICATIONS; EASEMENTS OR SERVITUDES; NATURE,
CONSTRUED. Servitudes are merely accessories to the tenements of which they form part. Although
they are possessed of a separate juridical existence, as mere accessories, they can not, however, be
alienated from the tenement, or mortgaged separately.
2. ID.; ID.; ID.; A LIMITATION ON THE RIGHT OF THE OWNER TO USE. An easement operates as a
limitation on the title of the owner of the servient estate, specifically, his right to use ( jus utendi).
3. ID.; ID.; ID.; MODES OF EXTINGUISHMENT; MERGER, DEFINED. A merger exists when ownership of
the dominant and servient estates is consolidated in the same person. Merger then, as can be seen,
requires full ownership of both estates.
4. ID.; ID.; ID.; PERSONAL SERVITUDE; CONSTRUED. A personal servitude, is one constituted not in
favor of a particular tenement (a real servitude) but rather, for the benefit of the general public. 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, in this case, the public at large.
5. REMEDIAL LAW; ACTIONS; SUMMARY JUDGMENT; WHEN PROPER. 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.
6. ID.; ID.; ID.; PURPOSE. Summary judgments are meant to rid a proceeding of the ritual of a trial
where, from existing records, the facts have been established, and trial would be futile.
7. ID.; ID.; LAW OF THE CASE; CONSTRUED. "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)
8. ID.; ID.; FORUM SHOPPING. 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.
DECISION
SARMIENTO, J p:
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. prLL
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 plaintiff's motion for summary judgment. (pp. 15107, 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 of" 7 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. LLpr
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 right-of-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 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. prLL
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.
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).
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).
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).
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). 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
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.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
Footnotes
1.Herrera, Manuel, J., Ponente; Reyes, Minerva and Sempio
19.Carcon Development Corporation v. Court of Appeals, G.R.
Diy, Alicia, JJ., Concurring.
No. 88218, December 19, 1989, 180 SCRA 348.
2.Rollo, 31.
20.Natalia Realty Corporation v. Valley, supra.
3.Id, 31-32.
21.Arradaza v. Court of Appeals, G.R. No. 50422, February 8,
4.Id., 34.
1989, 170 SCRA 12.
5.Id., 15, 37.
22.Garcia v. Court of Appeals, Nos. 82282-83, November 24,
6.Id., 96.
1988, 167 SCRA 815.
7.Id.
23.Supra; also Arradaza v. Court of Appeals, supra.
8.Id., 32.
24.People v. Pinuila, 103 Phil. 992, 999 (1958); emphasis in the
9.CIVIL CODE, art. 617.
original.
10.II TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON
25.Villanueva v. Adre, G.R. No. 80863, April 27, 1989, 172
THE CIVIL CODE OF THE PHILIPPINES 343-344. (1972
SCRA 876, 882.
ed.).
26.Supra.
11.Id., 344.
27.63 Phil. 664 (1936).
12.Id.
28.Supra, 684. Under Article 619 of the Civil Code, voluntary
13.Rollo, id., 31; emphasis supplied.
easements and established "by the will of the owner."
14.Id., 21 emphasis in the original.
29.Supra.
15.CIVIL CODE, supra, art. 631(1).
30.Supra, 696.
16.Supra, art. 614.
31.Supra.
17.TOLENTINO, id., 340.
||| (Solid Manila Corp. v. Bio Hong Trading Co., Inc., G.R. No.
18.RULES OF COURT, Rule 34; Natalia Realty Corporation v. 90596, [April 8, 1991], 273 PHIL 115-128)
Valley, G.R. Nos. 78290-94, May 23, 1989, 173 SCRA
534.

FIRST DIVISION
[G.R. No. 112331. May 29, 1996.]
ANASTACIA QUIMEN, petitioner, vs.
OLIVEROS, respondents.

COURT

Benedicto L. Nanca for petitioner.

Armando A. San Antonio for private respondent.
SYLLABUS

OF

APPEALS

and

YOLANDA

Q.

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE COURT OF APPEALS REVERSING THE DECISION
OF THE TRIAL COURT, UPHELD ON APPEAL. 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.
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 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. In sum, this Court finds that the decision of respondent appellate court is thoroughly backed up
by law and the evidence.
2. CIVIL LAW; PROPERTY, OWNERSHIP AND ITS MODIFICATIONS; EASEMENT, DEFINED. 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. 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 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.
3. ID.; ID.; EASEMENTS; RIGHT OF WAY; CONDITIONS FOR GRANT THEREOF. The conditions sine qua
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; (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.
4. ID.; ID.; ID.; ID.; CRITERION OF LEAST PREJUDICE TO THE SERVIENT ESTATE, CONSTRUED. 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 cause the least damage
should be used, even if it will not be the shortest.
DECISION
BELLOSILLO, J p:
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 becauseleast
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. 1448-B-1. It is bounded on the right by the property of Sotero designated
as Lot No. 1448-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-6A 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 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. 1448-B-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.
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 jureextinguished 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 qua 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; (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 theshortest 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 cause the least damage
should be used, even if it will not be the shortest. 16 This is the test.
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 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.
Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.
Footnotes
1.Tolentino, Arturo M., Commentaries and Jurisprudence on
the Civil Code of the Philippines, 1954 ed., Vol. II, p.
332, citing Casals Colldecarrera, pp. 108-109.
2.Memorandum for Private respondent, Rollo, pp. 56-58.
3.Docketed as Civil Case No. 690-M-87, raffled to Br. 19
presided by Judge Camilo O. Montesa, Jr.
4.Exh. "B," Ocular Inspection Report, Records, pp. 24-25.
5.Records, pp. 87-89.
6.Decision penned by Justice Fidel P. Purisima, concurred in
by Justices Justo P. Torres, Jr., and Bernardo P.
Pardo; Rollo, pp. 14-23.
7.Memorandum of Petitioner, Rollo, pp. 70-75.
8.Sec. 3, Ch. 2, Title VII, Bk. II, NCC.
9.3 Sanchez Roman 472.
10.Art. 634, NCC.
11.Art. 649, NCC. 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 . . . 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.
12.Costabella Corporation v. Court of Appeals, G.R. No.
80511, 25 January 1991, 193 SCRA 333,
citing Locsin v. Climaco, No. L-27319, 31 January
1969, 26 SCRA 816,Angela Estate, Inc. v. Court of
First Instance of Negros Occidental, No. L-27084, 31
July 1968, 24 SCRA 500, Bacolod Murcia Milling Co.,
Inc. v. Capitol Subdivision, No. L-25887, 26 July
1966, 17 SCRA 731.
13.Exh. "A," Records, pp. 1-4.
14.TSN, 6 July 1988.
15.Records, p. 87.
16.Tolentino, Arturo M., Commentaries and Jurisprudence on
the Civil Code of the Philippines, 1972 ed., Vol. II, p.
374, citing 2 Castan 275.
17.TSN, pp. 14-15, 4 January 1989.
18.Bernardo v. Court of Appeals, G.R. No. 101680, 7
December 1992, 216 SCRA 224.
||| (Quimen v. Court of Appeals, G.R. No. 112331, [May 29,
1996], 326 PHIL 969-981)

FIRST DIVISION
[G.R. No. 10372. December 24, 1915.]
DOMINGO LAO and ALBINA DE LOS SANTOS, applicants-appellants, vs. THE HEIRS
OF LORENZA ALBURO, objectors-appellee.
Medina, Gabriel & Diaz for appellants.
Beunaventura Reyes for appellees.
SYLLABUS
1. EASEMENTS; PARTY WALLS. The easement of party walls is presumed in a wall separating
two adjoining buildings, unless there is a title, some exterior indication, or proof to the contrary. (Art.
572, Civil Code.)
2. ID.; ID. A wall separating two adjoining buildings, built on the land on which one of these
buildings stands, is not a party wall when there is a drain along its top to carry away the water from
the roof and eaves of the building belonging to the owner of the land on which the wall is erected; and
also when a part of the wall is covered by the roof of the said building, the construction of which
demonstrates that the wall belongs exclusively to the owner of the building of which it forms part. The
fact that some of the timbers of the adjoining building were surreptitiously inserted in the disputed
wall is not sufficient to warrant a finding that the wall was thereby converted into a party wall,
because there are various indications that it belongs exclusively to the owner of the building, which
conflict with the claim of an easement of party walls.
DECISION
TORRES, J p:
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 as accesorias, 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 Calee Jolo or Analoague, Binondo, is 212.05 square meters in
area; the third parcel of land, Lot No. 3, comprising two houses and sheds of strong materials is
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 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 applicants, 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 recites the names of the tenants who occupy the first
three properties and states that the applicants occupy the fourth. The names and addresses if 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.
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 on the said plan as
parcel No. 2-inasmuch as the said 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-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 in th judgment appealed from that the wall which
lies between the properties of the applicants 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 claim.

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 stones 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.
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, 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 applicants' 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 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 and the wall on
the objectors' land could be seen; that the lower part of this latter wall had two archlike 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, 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 disputed 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 do
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.
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 the judgment appealed form in which it was held that
the said wall is a party wall is hereby reversed; without special finding as to costs. So ordered.
Arellano, C. J., Johnson, Carson, Moreland, Trent, and Araullo JJ., concur.

||| (Lao v. Heirs of Alburo, G.R. No. 10372, [December 24, 1915], 33 PHIL 48-53)
EN BANC
[G.R. No. 911 . March 12, 1903.]
MAXIMO
appellee.

CORTES, plaintiff-appellant, vs.

JOSE

PALANCA

YU-TIBO, defendant-

Felipe G. Calderon for appellant.

Simplicio del Rosario for appellee.
SYLLABUS
1. REAL PROPERTY; EASEMENTS; LIGHT AND AIR. The easement-of light in the case of
windows opened in one's own wall is negative, and can not be acquired by prescription except where
sufficient time of possession has elapsed after the owner of the dominant estate, by a formal act, has
prohibited the owner of the servient estate from doing something which would be lawful but for the
easement.
2. ID.; ID.; ID.. Different doctrines are applicable to the acquisition of easements in favor of
windows opened in one's own ,wall and of those opened in a party wall. In the latter case the express
or implied consent of the part owner affords a basis for the acquisition of a prescriptive title.
3. ID.; ID.; ID. Different doctrines are applicable to the acquisition of easements in favor of
windows opened in one's own wall and those opened in the wall of a neighbor; in the latter case
prescription commences to run from the date of the opening of the windows and ripens into title when
the specified time was elapsed without opposition on the part of the owner of the wall.
4. ID.; ID.; ID. The judgment of the supreme court of Spain of February 7, 1896, is
distinguishable on the ground that the easement there in question, created by the owner of both
dominant and servient estates, was positive because it consisted of the active enjoyment of the light
as opposed to mere tolerance on the part of an adjoining owner of windows opened in one's own wall.
5. ID.; ID.; ID. With reference to the law of easements of light and air there is no distinction
to be made between ordinance windows and others.
6. ID.; ID.; ID. A watershed protecting a window from sun and rain is a mere accessory
thereto and follows the condition of the window itself.
7. ID.; ID.; VIEW. Article 582 of the Civil Code, pertaining to easement of view from windows,
balconies, or similar projections, has no application to a protecting shed over a window.
8. ID.; ID.; ID. Article 585 of the Civil Code is applicable only to cases in which an easement
has been acquired and can not be cited in support of a contention that an easement exists.
9. PLEADING AND PRACTICE; APPEAL; VALUE IN CONTROVERSY. Where the litigation involves
an easement in favor of one certain piece of property worth less than $25,000, the Supreme Court of
the United States can have no jurisdiction on appeal, since the easement alone can not be worth
more than the entire property.
10. ID., ID., ID. Where the value of the property in controversy does not equal $25,000, the
fact that plaintiff has similar claims to other property not in controversy whose value exceeds $20,000
can not be considered in the allowance of an appeal to the Supreme Court of the United States.
DECISION

MAPA, J p:
This suit was brought to obtain an injunction, in accordance with the provisions of sections 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 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 one 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 all time prior to the complaint.
The contention of the plaintiff is that be the constant and uninterrupted use of the windows referred to
above during a period of fifty-nine years he acquired by 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 an 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 his 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 over 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 that 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 case 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.
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 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 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 on 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 he may see fit, nor does it avail the owner of 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 true easement as long as the right to impede its use exists." The easement
really consists 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 an 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 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 for 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 a true easement, although they may have existed from time immemorial. Finally, the
judgments of the 12th of November, 1889, and the 31st of day, 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 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 as 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 the 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 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 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 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, on 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.
With respect to the provisions of law 15, title 31, third partida, which the appellant largely relied upon in
his 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 " 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 socalled 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 that the light be not interrupted." (Ne luminibus officiator.) 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 the partidas, 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 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
subject-matter 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 to 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 can not 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 this 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 involved 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 638 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 could be
lawful were it not for the easement.
2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the
right of the owner of house No. 63 Calle Rosario (of which the defendant is tenant ), to make therein
improvements which might obstruct the light of 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 might 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 court of this appeal. So ordered.
Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.
Torres, J., did not sit in this case.
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 the 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 day 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 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, to 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 and of the other provisions of law cited by the appellant in his
motion papers establish 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 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
provision 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 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 produce
no effect with respect to possession is applicable as much 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 114 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.
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 1" of the said decision, which judgments declare that
the easement resting 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 contented by the appellant at the trial. The find nothing in his motion papers which can
in any way weaken this holding.

The third error 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.
Neither of the laws 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 to the court which
rendered it. This appears from the eighth 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 lays 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 judgment referred to, in fact, declares in its fourth conclusion of law
that the easement of light is continuous. If this 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 it 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.
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 laws down no doctrine which relates even by
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 as 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 has 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 in 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.
Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.
Torres and McDonough, JJ., did not sit in this case.
ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE OF THE SUPREME COURT OF THE UNITED
STATES.
WILLARD, J p:
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."
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 this 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 $"5,000, 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.
Arellano, C .J ., Torres, Cooper, Mapa and Ladd, JJ ., concur.
McDonough, J ., did not sit in this case.
||| (Cortes v. Yu-Tibo, G.R. No. 911, [March 12, 1903], 2 PHIL 24-44)
EN BANC
[G.R. No. 3598. July 24, 1908.]
MIGUEL FABIE Y GUTIERREZ, petitioner-appellee, vs. JULITA LICHAUCO AND THE
CHILDREN OF FRANCISCO L. ROXAS, respondents-appellants.
Ledesma & Sumulong, and Del-Pan, Ortigas & Fisher for appellants.
Rosado, Sanz & Opisso for appellee.
SYLLABUS
1. REALTY; INCUMBRANCES; PRESUMPTION. It is a settled rule that real estate shall be
presumed to be free from incumbrance unless and until the contrary is shown. (Decisions of the
supreme court of Spain of April 7, 1864, and December 13, 1865.)
2. ID.; EASEMENTS. When the construction of windows and balconies does not constitute an
actual invasion of the rights of another, but is a lawful exercise of an inherent right, the easement of
light and view is negative.
3. ID.; ID.; BURDEN OF PROOF. One who opposes the registration of title to land upon which
he claims all easement in the name of another, basing his claim on the provisions of article 541 of the
Civil Code, must show that the "apparent sign of the easement," upon which he relies, was in
existence at the time the servitude was established.
4. ID.; ID.; PRESCRIPTION. When an easement of light and view is negative, the period for
prescription begins to run from the date on which the owner of the dominant estate, by a formal act,
prohibited the owner of the servient estate to do something which he might properly do if the
easement did not exist., (Art. 538, Civil Code.)
DECISION
MAPA, J p:
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
right 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 exists 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 provision is as follows:
"The existence of an apparent sign of an easement between 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, established 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
she claims; and that when both properties were alienated, that of the petitioner on the 28th of
November, 1848, and that of the respondent (Julita Lichauco) on the 31st of October of the same
year, the apparent sign of the existence of said easement was not removed, nor was it expressed in
the instrument of alienation of the estates that such easements should be abolished.
The apparent sign of the easements claimed in this case is made to consist 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 respondent contains a description of said
house such as it was at that time, and after setting forth the boundaries thereof, states 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 onefourth varas. Converting the varas into meters and disregarding the centimeters, it results that said
house had a frontage of 16 meters, equivalent to the twenty and one-fourth varas and three and a
half inches stated in the instrument when it was alienated for the first time in October, 1818. Twenty
years thereafter that is, on the 13th of September, 1869 the house was surveyed and appraised
by Architect 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 measurement stated in the aforesaid
instrument. Now then, according to the plan on folio 137, Exhibit I of the respondent (Lichauco), the
house has 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 " 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 front line 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 forms the
main part of the house has suffered any 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 erected 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 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 owneras 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 said gallery is erected or in which its columns are embedded 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 is, the lot and that which is erected upon it. The necessity for such division does not
appear nor can any reasonable justification therefor be discovered in the present case.
On the other hand, in none of the numerous papers presented by the respondent is there any
mention made of the gallery in question, notwithstanding the fact that 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 said gallery,
inasmuch as a 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, as made by
various persons at different times, mention should always have been made of only one of the
galleries, the other being 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, from 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 respondent goes on to say, 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 was 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, especially
as the value of a property 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 essential and
culminating point of the question. Moreover, it does not appear that said experts, who, among other
things, base their opinion on the condition 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 the petitioner are of wood; while according to
another, Ramon Herrera Davila, (fol. 152) both sets of columns are built of stone, and the third, Jose
Perez Siguenza (fol. 157), affirms that they are all built 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 at the
time, to his attorney in fact under date of 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 three years it had not yielded him a single cent; for this reason he prayed his said
attorney to see the way to sell it by all means at the best price obtainable . . . It was thus that the
said house which, as stated by Junquito in the same letter, had cost him 15,000 pesos was sold to the
respondent for only 8,000. If in 1889 the house was a heap of ruins, it seems to us too hazardous to
certify solely ill view of its present condition, after undergoing repairs or having been practically
rebuilt, the real condition in which it was in 1848 that is, forty years before it became ruined
especially since, as the petitioner's 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 actually is.
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 not been able to testify that the said gallery was built by Julita
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 on account of the gallery in question. Such allegation absolutely lacks foundation,

(1) because it is not true that the petitioner acquired his property prior to the time when Julita
Lichauco acquired hers, but entirely on the contrary since 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 at what time the gallery
in controversy was constructed inasmuch as he limits himself to sustaining and defending the
freedom of his property, denying the easements of light and view that 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 easements, basing her claim on the
provisions of article 541 of the Civil Code, is obliged to prove that 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 respondent as to the easements of light
and view, which the petitioner does not admit, must of necessity be dismissed.
(b) Opposition of the 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 appealed from, when this
party appeared at the trial it 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, either at the time or during the course of the proceedings as to which of said
easements they referred when appearing. Hence the questions raised by these respondents do not
appear as clearly determined.
In the absence of due specification of the said points, and inferring it only from the language of
the agreement submitted by 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 respondent alleged as a foundation therefor, as stated in the
overruling thereof (p. 9 of the bill of exceptions), that the easement with reference to balconies had
not been acknowledged, and now in setting forth their injuries before this court they speak of
the eaves . . .
Admitting, for 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
easement 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 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, the time of possession for prescription (and it
is a matter of prescription for the reason that the 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
easement 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 at bar there exists the positive fact of windows with
projecting, balconies opening over the 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 an easement, imposes on him the obligation to permit the
owner of the dominant estate to have such windows 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 fact 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 he 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, underwent
alterations 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 windows 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 it, as claimed by
the respondents. weather 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 land. 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 solid house; projecting eaves, thus the
agreement reads, from which part of its water falls on said lot. Notwithstanding the fact that the
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 the 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 preposition 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 . . ." And this very same thing is twice repeated in clause 3, "that on
the part of the children of Francisco L. Roxas there has not been an act of opposition to prevent
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 there
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, that the house of the respondents has
balconies over the land of the petitioner; and as it is, since it has not 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 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 can not 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 might 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 their house are or look over the lot of the
petitioner; therefore, considering that this fact has not been proven, as shown heretofore, said
pretension fails and can not 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.
Arellano, C.J., Torres, Carson, Willard and Tracey, JJ., concur.
||| (Fabie y Gutierrez v. Lichauco, G.R. No. 3598, [July 24, 1908], 11 PHIL 14-27)
EN BANC
[G.R. No. 2085. August 10, 1909.]
TIBURCIO SAENZ, plaintiff-appellant, vs. FIGUERAS HERMANOS, defendant-appellee.
Antonio V. Herrero, for appellant.

Espiridion Guanco, for appellee.

SYLLABUS
1. EASEMENT OF LIGHT AND VIEW. S. and H. were owners of adjoining lots in the
municipality of Iloilo. H. had constructed or was constructing a house of strong materials upon his lot.
The line of his house was less than two meters from the dividing line of the two lots. The said house
consisted of two stories. H. placed three windows in the first story and five windows in the second
story, each looking directly upon the lot of S., and erected in the front and rear of his house a balcony,
also opening directly upon the lot of S. H. did not obtain permission from S. to make these openings in
his house: Held, That, under article 582 of the Civil Code, H. had no right to the easement of light and
view which he attempted to exercise upon the property of S. by means of the said windows and
balconies.
DECISION
JOHNSON, J p:
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 the 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; that on the second floor, both in the front and rear of the house was a balcony,
also opening 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.
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 the customs of the place.
After hearing the evidence adduced during the trial of said cause, the lower court made the
following findings of fact:
"The plaintiffs lot is now vacant by the 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 plaintiffs lot, although the
defendants state that, according to the plan, said part is to be inclosed 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 plaintiffs 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 plaintiffs 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
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 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 those 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 anther'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 any similar openings projecting over adjoining property, unless there is a
distance of at least 2 meters 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 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 has made in the house in question, give him, and, because of the fact that he has
constructed his house 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 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.
Arellano, C.J., Torres, Carson and Moreland, JJ., concur.
||| (Saenz v. Hermanos, G.R. No. 2085, [August 10, 1909], 13 PHIL 666-671)
FIRST DIVISION
[G.R. No. 48384. October 11, 1943.]
SEVERO AMOR, petitioner, vs. GABRIEL FLORENTINO ET AL., respondents.
SYLLABUS

1. EASEMENTS; LIGHT AND VIEW AND "ALTIUS NON TOLLENDI"; REQUIREMENT UPON THE
OWNER OF SERVIENT ESTATE; NEGATIVE AND POSITIVE EASEMENTS. The easement of light and
view and easement not to build higher (altius non tollendi) go together because an easement of light
and view requires that the owner of the servient estate shall not build to a height that will obstruct
the window. They are, as it were, the two sides of the same coin. While an easement of light and view
is positive, that of altius non tollendi negative.
2. ID.; MODES OF ESTABLISHING AND ACQUIRING EASEMENTS. According to article 536, Civil
Code, easements are established by law or by will of the owners. Acquisition of easements is first by
title or its equivalent and secondly by prescription.
3. ID.; WHAT CHARACTERIZES ITS EXISTENCE. Under article 541 of the Civil Code, the visible
and permanent sign of an easement is the title that characterizes its existence.
4. ID.; WHEN AN EASEMENT IS DEEMED CREATED; NOBODY CAN HAVE AN EASEMENT OVER HIS
OWN PROPERTY. The easement is not created till the division of the property, inasmuch as a predial
or real easement is one of the rights in another's property, or jura in re aliena and nobody can have
an easement over his own property, nemini sua res servit.
5. ID.; REQUISITE OF EASEMENT UNDER ARTICLE 530 OF CIVIL CODE. The requisite of an
easement as required by article 530 of the Civil Code is that there must be two proprietors one, of
the dominant estate and another, of the servient estate.
6. ID.; THE PRESENT CASE AND THAT OF CORTES vs. YU-TIBO (2 PHIL., 29), DISTINGUISHED.
The present case is distinguished from that of the case of Cortes vs. Yu-Tibo (2 Phil., 29), that in the
latter it involved acquisition of easement by prescription, while in the present case the question is the
acquisition of easement by title, or its equivalent, under article 541 of the Civil Code. While a formal
prohibition was necessary in the former case in order to start the period of prescription, no such act is
necessary in the present case because of the existence of the apparent sign which is a sufficient title
in itself to create the easement.
7. ID.; EASEMENT ENJOYED BY FORMER OWNER SUBSISTS AFTER DIVISION OF ESTATE IN THE
ABSENCE OF CONTRACT TO THE CONTRARY. When an estate is divided between different persons,
and in the contract nothing is said about a mode of enjoyment different from that used by the original
owner thereof, the necessary easements for said mode of enjoyment are understood to be subsisting.
8. ID.; LAW OF EASEMENT PRIOR TO CIVIL CODE IS THE SAME AS IN THE LATTER. The same
principle enunciated in article 541 of the Spanish Civil Code was already an integral part of the
Spanish law before the promulgation of the Civil Code in 1889, and, therefore, even if the case should
be governed by the Spanish law prior to the Civil Code, the easement in question would also have to
be upheld.
9. ID.; PRESCRIPTIVE LAWS OF EASEMENT BEFORE AND AFTER THE CIVIL CODE. The
prescriptive period under the Partidas was 10 years between persons who were present, and 20 years
between absentees. (4 Manresa, 605.) According to article 537 of the Civil Code, continuous and
apparent easements may be acquired by prescription for 20 years. Under sections 40 and 41 of
the Code of Civil Procedure, the period is 10 years.
10. ID.; RIGHTS OF PURCHASERS OF LAND BURDENED WITH APPARENT EASEMENTS.
Purchasers of lands burdened with apparent easements do not enjoy the rights of third persons who
acquire property, though the burden is not recorded.
11. ID.; EASEMENTS EXIST SIDE BY SIDE WITH OWNERSHIP. Absolute and unlimited dominion
is unthinkable because it would destroy and defeat itself, inasmuch as proper enjoyment or property
requires mutual service and forbearance among the adjoining estates. It is thus that easements,
whether created by law or established by will of the parties, must perforce exist side by side with
ownership.

DECISION
BOCOBO, J p:
The petitioner asks for the setting aside of the decision of the Court of Appeals which affirmed
the judgment of the Court of First Instance of Ilocos Sur. The trial court declared that an easement of
light and view had been established in favor of the property of the plaintiffs (respondents herein) and
ordered the petitioner to remove within 30 days all obstruction to the windows of respondents' house,
to abstain from constructing within three meters from the boundary line, and to pay P200.00 in
damages.
It appears that over 50 years ago, Maria Florentino owned a house and a camarin or
warehouse in Vigan, Ilocos Sur. The house had and still has, on the north side, three windows on the
upper story, and a fourth one on the ground floor. Through these windows the house receives light
and air from the lot where the camarin stands. On September 6, 1885, Maria Florentino made a will,
devising the house and the land on which it is situated to Gabriel Florentino, one of the respondents
herein, and to Jose Florentino, father of the other respondents. In said will, the testatrix also devised
the warehouse and the lot where it is situated to Maria Encarnacion Florentino. Upon the death of the
testatrix in 1892, nothing was said or done by the devisees in regard to the windows in question. On
July 14, 1911, Maria Encarnacion Florentino sold her lot and the warehouse thereon to the petitioner,
Severo Amor, the deed of sale stating that the vendor had inherited the property from her aunt, Maria
Florentino. In January, 1938, petitioner destroyed the old warehouse and started to build instead a
two-story house. On March 1st of that year, respondents filed an action to prohibit petitioner herein
from building higher than the original structure and from executing any work which would shut off the
light and air that had for many years been received through the four windows referred to. The Court
of First Instance found on the 15th of the same month that the construction of the new house had
almost been completed, so the court denied the writ of preliminary injunction.
I
Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the Court of
Appeals, Article 541 of the Civil Code governs this case. The facts above recited create the very
situation provided for in said article, which reads as follows:
"Art. 541. La existencia de un signo aparente de servidumbre entre dos fincas,
establecido por el propietario de ambas, se considerara, si se enajenare una, como titulo
para que la servidumbre continue activa y pasivamente, a no ser que, al tiempo de
separarse la propiedad de las dos fincas, se exprese lo contrario en el titulo de
enajenacion de cualquiera de ellas, o se haga desaparecer aquel signo antes del
otorgamiento de la escritura."
"Art. 541. 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 estates 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."
When the original owner, Maria Florentino, died in 1892, the ownership of the house and its lot passed
to respondents, while the dominion over thecamarin and its lot was vested in Maria Encarnacion
Florentino, from whom said property was later bought by petitioner. At the time the devisees took
possession of their respective portions of the inheritance, neither the respondents nor Maria
Encarnacion Florentino said or did anything with respect to the four windows of the respondents'

house. The respondents did not renounce the use of the windows, either by stipulation or by actually
closing them permanently. On the contrary, they exercised the right of receiving light and air through
those windows. Neither did the petitioner's predecessor in interest, Maria Encarnacion Florentino,
object to them or demand that they be closed. The easement was therefore created from the time of
the death of the original owner of both estates, so when petitioner bought the land and
the camarin thereon from Maria Encarnacion Florentino, the burden of this easement continued on the
real property so acquired because according to Article 534, "easements are inseparable from the
estate to which they actively or passively pertain."
An incidental question that arises at this juncture is whether or not Article 541 applies to a
division of property by succession. The affirmative has been authoritatively declared. (Manresa,
"Comentarios al Codigo Civil Espaol," vol. 4, p. 619; Sentence of the Supreme Tribunal of Spain,
November 17, 1911).
Petitioner assigns as an error of the Court of Appeals the supposed failure of that tribunal to
pass upon his motion to consider certain allegedly new evidence to prove that Maria Florentino, the
original owner of the properties, died in 1885. Petitioner alleges that Maria Florentino died in 1885
and, therefore, the Law of the Partidas should be followed in this case and not the Civil Code.
However, the petitioner's contention cannot be upheld without rejecting the finding of fact made by
the Court of Appeals, as follows:
"Habiendo pasado la propiedad de la casa de manposteria a los demandantes, a
la muerte de Maria Florentino, ocurrida en 1892, (el demandado sostiene que fue con
anterioridad a 1889) no hay duda ninguna de que los demandantes adquirieron la
servidumbre de luces y vistas sobre el camarin del demandado mediante titulo y por
prescripcion (Art. 537)."
We cannot review the above finding of fact by the Court of Appeals that Maria Florentino died
in 1892. The evidentiary fact from which the Court of Appeals drew the above finding is that Gregorio
Florentino during the trial in 1938 testified to facts of his own personal knowledge, and he was then
58 years old, having been born in 1880. If Maria Florentino, as claimed by petitioner, had died in
1885, Gregorio Florentino would have been only 5 years of age at the time of Maria Florentino's
death. The Court of Appeals therefore concluded that Maria Florentino died in 1892, when Gregorio
Florentino was then 12 years of age. We do not believe we can disturb the finding of the Court of
Appeals, because its deduction as to the date of Maria Florentino's death may be right or wrong,
according to one's own reasoning. In other words, its conclusion of fact from Gregorio Florentino's
testimony is not necessarily and unavoidably mistaken. On the contrary, it is reasonable to believe
that a person 58 years old cannot remember facts of inheritance as far back as when he was only 5
years of age.
Furthermore, the burial certificate and the gravestone, whose copy and photograph,
respectively, were offered by petitioner in a motion for new trial filed in the Court of Appeals, could
have been discovered by petitioner before the trial in the Court of First Instance by the exercise of
due diligence. There is no reason why this evidence could be found when the case was already before
the Court of Appeals, but could not be found before the trial in the Court of First Instance. It was easy,
before such trial, for the petitioner to inquire from the relatives of Maria Florentino as to when she
died. And having ascertained the date, it was also easy to secure the burial certificate and a
photograph of the gravestone, supposing them to be really of Maria Florentino. The fact is, petitioner
never tried to find out such date and never tried to secure the additional evidence till his counsel
raised this issue for the first time before the Court of Appeals. That Court was therefore right in
rejecting petitioner's claim that Maria Florentino died in 1885. (Sec. 497, Act 190). The petitioner's

statement in his brief (p. 11) that the Court of Appeals neither passed upon his motion nor took the
burial certificate and the gravestone into account is not true, because the very words of the Court of
Appeals clearly show that the Court had in mind said motion and evidence when the decision was
signed. The decision said: "a la muerte de Maria Florentino ocurrida en 1892 (el demandado sostiene
que fue con anterioridad a 1889)" (Italics supplied).
Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time
on appeal. Petitioner did not in the trial court allege or prove this point. He presented this issue for
the first time in the Court of Appeals. (Sec. 497, Act 190).
Let us now consider Article 541 more closely in its application to the easement of light and
view and to the easement not to build higher (altius non tollendi). These two easements necessarily
go together because an easement of light and view requires that the owner of the servient estate
shall not build to a height that will obstruct the window. They are, as it were, the two sides of the
same coin. While an easement of light and view is positive, that of altius non tollendi is negative.
Clemente de Diego states that when article 538 speaks of the time for the commencement of
prescription for negative easements, "it refers to those negative easements which are the result and
consequence of others that are positive, such as the easement not to build higher, or not to construct,
which is indispensable to the easement of light." ("Se refiere a aquellas servidumbres negativas que
son sucuela y consecuencia de otras positivas, como la de no levantar mas alto, o de no edificar, que
es imprescindible para la servidumbre de luces.") ("Curso Elemental de Derecho Civil Espaol, Comun
y Foral," vol. 3, p. 450). This relation of these two easements should be borne in mind in connection
with the following discussion of (1) the modes of establishing and acquiring easements; (2) the
meaning of article 541; and (3) the doctrine in the case of Cortes vs. Yu-Tibo.
First, as to the modes of establishing and acquiring easements. According to Article 536,
easements are established by law or by will of the owners. Acquisition of easements is first by title or
its equivalent and secondly by prescription. What acts take the place of title? They are mentioned in
Articles 540 and 541, namely, (1) a deed of recognition by the owner of the servient estate; (2) a final
judgment; and (3) an apparent sign between two estates, established by the owner of both, which is
the case of article 541. Sanchez Roman calls such apparent sign under article 541 "supletoria del
titulo constitutivo de la servidumbre." (Derecho Civil, vol. 3, p. 656). The same jurist says in regard to
the ways of constituting easements:
"En resumen, segun el Codigo, las servidumbres reales se constituyen:
"Las continuas y aparentes por titulo, por prescripcion de veinte anos y por la
existencia de un signo aparente de servidumbre, en el supuesto y condiciones del art.
541.
"Las continuas no aparentes y las discontinuas, sean o no aparentes por titulo y
por escritura del reconocimiento del dueo del predio serviente o por sentencia firme,
que se consideran como medios supletorios del titulo.
"Las aparentes, aunque sean discontinuas, se adquieren tambien por la existencia
de un signo aparente en el supuesto y condiciones del articulo 541."
"To sum up, according to the Code, real easements are constituted:
"Continuous and apparent, by title, by prescription for twenty years and by the
existence of an apparent sign of easement, in the case and under the conditions of Art.
541.
"Continuous non-apparent and discontinuous, whether apparent or not, by title
and by deed of recognition by the owner of the servient estate ar by final judgment,
which are considered as suppletory means of title.

"Apparent easements, although discontinuous, are also acquired by the existence

of an apparent sign in the case and under the conditions of Art. 541."
In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was held that
under article 541 of the Civil Code, the visible and permanent sign of an easement "is the title that
characterizes its existence" ("es el titulo caracteristico de su existencia.")
It will thus be seen that under article 541 the existence of the apparent sign in the instant
case, to wit, the four windows under consideration, had for all legal purposes the same character and
effect as a title of acquisition of the easement of light and view by the respondents upon the death of
the original owner, Maria Florentino. Upon the establishment of that easement of light and view, the
concomitant and concurrent easement of altius non tollendi was also constituted, the heir of
the camarin and its lot, Maria Encarnacion Florentino, not having objected to the existence of the
windows. The theory of article 541, of making the existence of the apparent sign equivalent to a title,
when nothing to the contrary is said or done by the two owners, is sound and correct, because as it
happens in this case, there is an implied contract between them that the easements in question
should be constituted.
Analyzing article 541 further, it seems that its wording is not quite felicitous when it says that
the easement should continue. Sound juridical thinking rejects such an idea because, properly
speaking, the easement is not created till the division of the property, inasmuch as a predial or real
easement is one of the rights in another's property, or jura in re aliena and nobody can have an
easement over his own property, nemini sua res servit. In the instant case, therefore, when the
original owner, Maria Florentino, opened the windows which received light and air from another lot
belonging to her, she was merely exercising her right of dominion. Consequently, the moment of the
constitution of the easement of light and view, together with that of altius non tollendi, was the time
of the death of the original owner of both properties. At that point, the requisite that there must be
two proprietors one of the dominant estate and another of the servient estate was fulfilled.
(Article 530, Civil Code.)
Upon the question of the time when the easement in article 541 is created, Manresa presents
a highly interesting theory, whether one may agree with it or not. He says:
"La servidumbre encubierta, digamoslo asi, por la unidad de dueo, se hace
ostensible, se revela con toda su verdadera importancia al separarse la propiedad de las
fincas o porciones de finca que respectivamente deben representar el papel de predios
sirviente y dominante."
"The concealed easement, as it were by the oneness of the owner, becomes
visible, and is revealed in all its importance when the ownership of the estate or portions
of the estate which respectively should play the role of servient and dominant estates is
divided."
Such a view cannot be fully accepted because before the division of the estate there is only a service
in fact but not an easement in the strictly juridical sense between the two buildings or parcels of land.
We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24, decided in 1903, Mr. Justice, later
Chief Justice, Mapa speaking for the Court. Counsel for petitioner contends that the doctrine in that
case is controlling in the present one. If the essential facts of the two cases were the same, there is
no doubt but that the early opinion would be decisive inasmuch as it is by its cogent reasoning one of
the landmarks in Philippine jurisprudence. However, the facts and theories of both cases are
fundamentally dissimilar. What is more, as will presently be explained, that very decision makes a
distinction between that case and the situation provided for in article 541. In that case, Cortes sought
an injunction to restrain Yu-Tibo from continuing the construction of certain buildings. Cortes' wife
owned a house in Manila which had windows that had been in existence since 1843. The defendant,

who occupied a house on the adjoining lot, commenced to raise the roof of the house in such a
manner that one-half of the windows in the house owned by plaintiff's wife had been covered. This
Court, in affirming the judgment of the lower court which dissolved the preliminary injunction, held
that the opening of windows through one's own wall does not in itself create an easement, because it
is merely tolerated by the owner of the adjoining lot, who may freely build upon his land to the extent
of covering the windows, under article 581, and that this kind of easement is negative which can be
acquired through prescription by counting the time from the date when the owner of the dominant
estate in a formal manner forbids the owner of the servient estate from obstructing the light, which
had not been done by the plaintiff in this case.
It will thus be clear that one of the essential differences between that case and the present is
that while the Yu-Tibo case involved acquisition of easement by prescription, in the present action the
question is the acquisition of easement by title, or its equivalent, under article 541. Therefore, while a
formal prohibition was necessary in the former case in order to start the period of prescription, no
such act is necessary here because the existence of the apparent sign when Maria Florentino died
was sufficient title in itself to create the easement.
Another difference is that while in the Yu-Tibo case, there were two different owners of two
separate houses from the beginning, in the present case there was only one original owner of the two
structures. Each proprietor in the Yu-Tibo case was merely exercising his rights of dominion, while in
the instant case, the existence of the apparent sign upon the death of the original owner ipso
facto burdened the land belonging to petitioner's predecessor in interest, with the easements of light
and view and altius non tollendi in virtue of article 541.
The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation foreseen in
article 541. Said this Court in that case:
"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 light 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 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 cases 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." (2 Phil., 29-31).
Finally, the Yu-Tibo case was decided upon the theory of the negative easement of altius non
tollendi, while the instant case is predicated on the idea of the positive easement of light and view
under article 541. On this point, suffice it to quote from Manresa's work. He says:
"Que en las servidumbres cuyo aspecto positivo aparece enlazado al negativo, asi
como al efecto de la prescripcion ha de considerarse preferente el aspecto negativo, al
efecto del art. 541 basta atender al aspecto positivo, y asi la existencia de huecos o
ventanas entre dos fincas que fueron de un mismo dueo es bastante para considerar
establecidas, al separarse la propiedad de esas fincas, las servidumbres de luces o
vistas, y con ellas las de no edificar o no levantar mas alto, porque sin estas no prodrian
existir aquellas."
"That in easements whose positive aspect appears tied up with the negative
aspect, just as for the purposes of prescription the negative aspect has to be considered
preferential, so for the purposes of Article 541 it is sufficient to view the positive aspect,
and therefore the existence of openings or windows between two estates which belonged
to the same owner is sufficient to establish, when the ownership of these estates is
divided, the easements of light or view, and with them the easements of altius non
tollendi because without the latter, the former cannot exist."
There are several decisions of the Supreme Court of Spain which have applied Article 541.
Some of them are those of February 7, 1896; February 6, 1904; May 29, 1911; and November 17,
1911.
The sentence of February 7, 1896, dealt with windows established in one house by the original
owner of two houses. When he died, the two houses were adjudicated to different heirs. The court
held that there was an easement of light.
"Considerando que, segun lo establecido por este Supremo Tribunal en repetidas
sentencias, y consignado, muy principalmente, en la dictada en 21 de Octubre de 1892,
lo preceptuado en la ley 14, titulo 31 de la Partida 3.a, al tratar del modo de constituirse
las servidumbres, no esta en oposicion con el principio mediante el que, dividida una
finca entre diversas personas, sin que en el contrato se mencione cosa alguna acerca de
un modo de aprovechamiento distinto del que usaba el primitivo dueo de ella, se
entienden subsistentes las servidumbres necesarias para que aquel pueda tener lugar.
"Considerando que ese principio y jurisprudencia han obtenido nueva sancion,
puesto que a ellos obedece el concepto claro y concreto del articulo 541 del Codigo Civil,
aplicable al caso, . . ." (Riuz, Codigo Civil, Vol. V, pp. 349-350).

"Considering that, according to what has been established by this Supreme

Tribunal in repeated sentences, and principally declared in the sentence promulgated on
October 21, 1892, the provision of law 14, title 31 of Partida 3 in treating of the mode of
constituting easements, is not contrary to the principle that when an estate is divided
between different persons, and in the contract nothing is said about a mode of enjoyment
different from that used by the original owner thereof, the necessary easements for said
mode of enjoyment are understood to be subsisting;
"Considering that such principle and jurisprudence have obtained a new sanction,
for due to them is the clear and concrete concept of Article 541 applicable to the
case . . ."
Therefore, considering that Maria Florentino died in 1892, according to a finding of fact by the
Court of Appeals, there is an easement of light and view in favor of the respondents' property under
article 541 of the Civil Code.
II
But granting, arguendo, that Maria Florentino died in 1885, as contended by petitioner,
nevertheless the same principle enunciated in article 541 of the Spanish Civil Code was already an
integral part of the Spanish law before the promulgation of the Civil Code in 1889, and, therefore,
even if the case should be governed by the Spanish law prior to the Civil Code, the easement in
question would also have to be upheld. That the law before the Civil Code was the same as at present
is shown by the following:
1. Under Law 14, Title 31, Partida 3, this easement was constituted by an implied contract
among the heirs of Maria Florentino.
2. Granting for the sake of argument that this easement was not created through an implied
contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas was not
inconsistent with the principle in question, so that there was a gap in the Partidas which the Supreme
Court of Spain filled up from the Roman Law and modern civil codes, by recognizing the existence of
this kind of easement.
3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement did not prohibit the
easement in the instant case. Therefore, we should adhere to the decisions of the Supreme Court of
Spain which maintain this easement under the Spanish law prior to the Civil Code.
4. Other considerations show that the principle of apparent sign as announced by the Supreme
Tribunal of Spain is not incompatible with the Partidas.
First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements were
acquired by contract, by will and by prescription. Upon the death of the original owner, Maria
Florentino, the four windows under consideration already existed and were visible. One of the heirs,
Maria Encarnacion Florentino, to whom the camarin and its lot had been devised, having failed to
object to the same, knowingly consented to their continuance. Nor did Gabriel and Jose Florentino
(devisees of the house that had the four windows) permanently close the windows. There was
consequently an implied agreement between her and the devisees of the house with the four
windows to the effect that the service of these windows would continue, thus creating the easement
of light and view and the concomitant easement of altius non tollendi. Hence, the easement in
question was acquired by Gabriel and Jose Florentino through contract under Law 14, Title 31, Partida
3.
Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of decisions
of that court, it was held that Law 14, Title 31, Partida 3 was not opposed to the easement under
review. One of those decisions is that of November 7, 1883, which held:

"Considerando que, segun la doctrina establecida por este Tribunal Supremo, lo

dispuesto en la ley 14, tit. 31, Partida 3 , que trata de como se constituyen las
servidumbres, no se opone al principio de que dividido un predio entre dos diferentes
personas, sin que se establezca en el contrato un modo de disfrute diferente del que
usaba el primitivo dueo de la totalidad, se entienden subsistentes las servidumbres
necesarias para verificarlo, y que el signo aparente de ellas es un titulo para que
continuen si al tiempo de la division de la propiedad no se expresa lo contrario, que es lo
que acontece en el presente caso, puesto que la finca adjudicada en pago a Juan Perez
Charueco, objeto de este pleito, al fallecimiento de aquel se dividio entre sus hijos Juan y
Maria Francisca, sin establecerse novedad alguna respecto a la manera de su
disfrute, . . ."
Other decisions of the Supreme Tribunal of Spain to the same effect are those of September
14, 1867 and June 7, 1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp. 272-274.)
So that, granting for the sake of argument, that the easement was not created through an
implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas, according
to decisions of the Supreme Tribunal of Spain, was not inconsistent with the principle in question. The
problem in this case not having been foreseen in Law 14, Title 31, Partida 3, there was a gap in the
old legislation, which the Supreme Tribunal of Spain filled up from the Roman Law and from modern
Civil Codes.
The principle in question was deeply rooted in the Roman Law. It is from the Roman Law that
the Supreme Tribunal of Spain obtained this principle, in order to solve a question not provided for by
the Partidas, whose main source was also the Roman law. In other words, the Partidas being silent on
the point under consideration, the Supreme Tribunal of Spain resorted to the authoritative voice of the
Roman law from which the Law of the Partidas had derived its inspiration.
The following quotations from the Spanish version of the Roman Law Digest will prove the
assertions just made:
"Si te vendiere una cierta parte de mi fundo, te correspondera tambien el derecho
de acueducto (4), aunque muchas veces la conduccion sea a causa de la otra parte del
mismo fundo." (Digesto. Lib. VIII, Tit. III, Ley XXV.)
"Aquel que tenia dos casas bajo un mismo techo corrido, lego entrambas a
diversos sujetos. Respondi que en razon a que el techo puede pertenecer a dos de suerte
tal que sean de cada uno ciertas y determinadas partes de el; no tenian accion reciproca
para prohibir que las vigas de las unas casas estuvieren dentro de las otras." (Digesto.
Lib. VIII, Tit. II, Ley XXXVI, p. 246)
"Una testadora tenia unas casas unidas a un fundo que lego; se pregunto: si estas
no siguieren al fundo legado, y el legatario vindicase este: tal fundo debera alguna
servidumbre a las casas? o bien si el legatario reclamare que se le diere el fundo en
virtud de fideicomiso a su favor, deberan acaso los herederos reservar alguna
servidumbre a favor de las casas? Respondi que debian hacerlo." (Digesto. Lib. VIII, Tit.
V, Ley XX, p. 256).
Among the modern civil codes which contain the rule in question are those of France, Belgium,
Holland, Portugal, Mexico and Chile. It is presumed that the Supreme Tribunal of Spain had also in
mind at least one of them when it decided cases involving this principle before the promulgation of
the Spanish Civil Code.
When, therefore, Maria Florentino died (supposing she died in 1885), the status of the Spanish
law was in favor of the doctrine in question. We cannot change it because it was in full force at the
time of the alleged date of Maria Florentino's death. We cannot reject a doctrine established by the

Spanish Supreme Tribunal as an integral part of the Spanish law before the promulgation of the Civil
Code in 1889. And we know that jurisprudence in the sense of court decisions is one of the
sources of the law.
Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist, Manresa, is of
the opinion that "el precepto del art. 541 no solo no existia en nuestra antigua legislacion, sino que
podia deducirse claramente lo contrario de la ley 17, tit. 31, Partida 3.a . . ." However, a careful
reading of this provision of the Partidas reveals that the same did not militate against the creation of
an easement by an apparent sign if nothing was said or done when the property is divided. Law 17,
Title 31, Partida 3, reads as follows:
"Partida 3.a tit XXXI, ley 17. Perderse podrian aun las servidumbres en dos
maneras, sin aquellas que de susodichos. La una es, quitandola el seor de aquella cosa,
a quien debian la servidumbre, si fuere toda suya: mas si la casa o heredad de muchos
debiesen la servidumbre, no la puede el uno quitar tan solamente, sin otorgamiento de
los otros. La otra manera por que se pierde, es esta: asi como cuando aquel cuya es la
cosa que debe la servidumbre, comprala otra en que la habia ganada. Que por razon de
la compra, que se ayunta la una cosa con la otra de su seorio, pierdese la servidumbre.
Y maguer la enajene despues o la tenga para si, de alli adelante nunca debe ser
demandada, ni es obligada la cosa que asi es comprada a aquella servidumbre. Fueras
ende, si despues de eso fuese puesta nuevamente." (Scaevola, Codigo Civil, Tomo X, p.
326).
This law regulates the extinguishment of an easement by merger of the dominant and the
servient estates. Speaking of this law of the Partidas and of article 546, par. 1, of the Civil Code, both
of which refer to merger of the two estates, Scaevola says: (p. 319, vol. 10)
"Si el fundo gravado pasa a ser propiedad del dueo del dominante o viceversa, la
servidumbre cesa ipso facto, por no haber ya dualidad de predios, por no ser necesario el
uso o la prohibicion, en cuanto como propietario de ambos predios puede su dueo
servirse de ellos en tal concepto."
Inasmuch as through merger, the easement is ipso facto extinguished, there is
nothing strange or extraordinary in the provision of the law 17 that "de alli adelante
nunca debe ser demandada, ni es obligada la cosa que asi es comprada a aquella
servidumbre. Fueras ende si despues de eso fuese puesta nuevamente."
But there is a world of difference between extinguishment of an easement by merger of the
two estates and the constitution of an easement by an apparent sign when nothing is done or said
upon the division of the property. Law 17, title 31, Partida 3, having in mind only the modes
ofextinguishment, the legislator did not intend to cover the question involved in the present case,
which refers to the creation of an easement.
What, then, are the differences between the extinguishment of an easement by merger under
Law 17, title 31, Partida 3, and the constitution of an easement in this case, both before and after the
Civil Code went into effect?
First, in merger under Law 17, Title 31, Partida 3, there were from the very beginning, already
two separate estates, the dominant and the servient estates, whereas in this case, there was only one
estate.
Second, in merger under said Law 17, there were already two owners, whereas in this case,
there was only one owner, Maria Florentino.
Third, in merger under Law 17, there was already an easement in the legal sense, whereas in
the instant case, there was only a service between the two lots, (while Maria Florentino was living) but
there was as yet no easement from the juridical viewpoint.

4. Other considerations prove that the principle of apparent sign as enunciated by the
Supreme Tribunal of Spain is not inconsistent with the Partidas. These considerations are:
1. Article 537, Civil Code, provides that continuous and apparent easements are acquired
by title, or by prescription. However, side by side with that article is article 541 which contemplates
an easement upon division of an estate, unless a stipulation to the contrary is agreed upon, or the
sign is destroyed. Bearing in mind that "title" includes a contract, our view is that if Article 537 and
541 of the Civil Code can stand together, there is no reason why Law 14, title 31, Partida 3, whereby
easements are acquired by contract, by will and by prescription should be considered incompatible
with the easement under review.
2. Article 546, par. 1 of the Civil Code ordains that by merger of the two estates in the same
owner an easement is extinguished. Yet, coexistent with such provision is that of article 541 regarding
the apparent sign which is a title for the easement. If these two principles can and do stand together
under the Civil Code, the doctrine laid down by the Supreme Tribunal of Spain before the Civil Code
was in force about the effect of an apparent sign can also stand together with Law 17, title 31,
Partida 3 declaring the extinguishment of an easement by merger.
3. Under article 546, par. 1 of the Civil Code, merger extinguishes an easement. So in case the
estate is again divided by purchase, etc., the easement is not, under the Civil Code automatically
revived. That is the same provision of law 17, title 31, Partida 3, which does not reject the principle in
question, just as article 546, par. 1 of the Civil Code does not reject article 541 about an apparent
sign.
III
Aside from the foregoing reasons that support the easement under consideration, the same
has been acquired by respondents through prescription.
The easement involved in this case is of two aspects: light and view and altius non tollendi.
These two aspects necessarily go together because an easement of light and view prevents the
owner of the servient estate from building to a height that will obstruct the windows. This court in
Cortes vs. Yu-Tibo, supra, held that the easement concerned when there is an apparent sign
established by the owner of two estates is positive. Manresa is of the same opinion, supra. This being
so, and inasmuch as the original heirs of Maria Florentino succeeded to these two estates either in
1885 or in 1892 and as petitioner bought one of the lots in 1911, the prescriptive period under any
legislation that may be applied the Partidas, Civil Code or Code of Civil Procedure has elapsed
without the necessity of formal prohibition on the owner of the servient estate. The respondent's
action was brought in 1938. The prescriptive period under the Partidas was 10 years between persons
who were present, and 20 years between absentees. (4 Manresa, 605). According to article 537 of the
Civil Code, continuous and apparent easements may be acquired by prescription for 20 years. Under
sections 40 and 41 of the Code of Civil Procedure, the period is 10 years.
IV
The petitioner maintains that he is an innocent purchaser for value of the lot
and camarin thereon, and that he was not bound to know the existence of the easement because the
mere opening of windows on one's own wall does not ipso facto create an easement of light. Such
contention might perhaps be in point if the estates had not originally belonged to the same owner,
who opened the windows. But the petitioner was in duty bound to inquire into the significance of the
windows, particularly because in the deed of sale, it was stated that the seller had inherited the
property from her aunt, Maria Florentino. Referring to the Sentence of the Supreme Court of Spain
dated February 7, 1896, which applied Article 541, this Court in the case of Cortes vs. Yu-Tibo already
cited, said that the establishment of the easement "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." (p. 31). Moreover, it has been held that purchasers of lands burdened
with apparent easements do not enjoy the rights of third persons who acquire property, though the
burden is not recorded. (Sentence of the Supreme Tribunal of Spain, April 5, 1898).
V
Let us now discuss the case from the standpoint of justice and public policy.
First. When Maria Encarnacion Florentino, as one of of the devisees, accepted the camarin
and the lot, she could not in fairness receive the benefit without assuming the burden of the legacy.
That burden consisted of the service in fact during the lifetime of the original owner, which service
became a true easement upon her death.
Second. According to Scaevola, the reason for the principle in question is that there is a tacit
contract. He says in vol. 10, p. 277:
"Aun hay mas: hay, en nuestro entender, no solo presuncion de voluntad del
enajenante, o sea del dueo de las fincas que estuvieren confundidas, sino convencion,
siquiera sea tacita, entre el vendedor y al adquirente de la finca vendida. Puesto que
pudiendo estipular la no existencia de la servidumbre, nada dicen o nada hacen, fuerza
es presumir que el segundo (comprador) acepta el estado juridico creado por el primero
(vendedor)."
It is not just to allow Maria Encarnacion Florentino or her successor in interest to repudiate her
own undertaking, implied, it is true, but binding nevertheless. This easement is therefore a burden
which Maria Encarnacion Florentino and her successor in interest willingly accepted. They cannot now
murmur against any inconvenience consequent upon their own agreement.
Third. During the construction of the new house by the petitioner, the respondents filed an
action to stop the work. But petitioner continued the construction, so that when the Court of First
Instance was ready to pass upon the preliminary injunction, the work had almost been finished.
Petitioner, therefore, cannot complain if he is now ordered to tear down part of the new structure so
as not to shut off the light from respondents' windows.
Fourth. When petitioner bought this lot from the original coheir, Maria Encarnacion Florentino,
the windows on respondents' house were visible. It was petitioner's duty to inquire into the
significance of those windows. Having failed to do so, he cannot now question the easement against
the property which he purchased.
Fifth. No enlightened concept of ownership can shut out the idea of restrictions thereon, such
as easements. Absolute and unlimited dominion is unthinkable because it would destroy and defeat
itself, inasmuch as proper enjoyment of property requires mutual service and forbearance among the
adjoining estates. It is thus that easements, whether created by law or established by will of the
parties, must perforce exist side by side with ownership. As Sanchez Roman says, "Estos derechos
restrictivos del dominio, como pudieramos llamar a las servidumbres, aparecen en el orden juridico
por razones de necesidad y utilidad o comodidad, y tienen su causa, unas veces en el mismo derecho
de propiedad, por la voluntad del propietario, que impone, en uso de su derecho, esas restricciones a
sus cosas, o en motivos de interes publico, que las hacen necesarias a los fines colectivos." (Vol. 3, p.
484). This idea of easements can never become obsolete in the face of modern progress. On the
contrary, its need is all the more pressing and evident, considering that this mutual assistance and
giving way among estates is demanded by the complexities of modern conditions, such as those
which obtain in large cities where buildings, large and small, are so close together.
VI

Recapitulating, we believe the easement of light and view has been established in favor of the
property of respondents, for these reasons:
1. Maria Florentino having died in 1892, according to a finding of fact of the Court of Appeals,
which we cannot review, Article 541 of the Civil Code is applicable to this case.
2. Granting, arguendo, that Maria Florentino died in 1885, nevertheless the same principle
embodied in article 541 of the Civil Code was already an integral part of the Spanish law before the
promulgation of the Civil Code in 1889, and therefore, even if the instant case should be governed by
the Spanish law prior to the Civil Code, the easement in question would also have to be upheld.
3. The easement under review has been acquired by respondents through prescription.
4. The petitioner was not an innocent purchaser, as he was in duty bound to inquire into the
significance of the windows.
5. Justice and public policy are on the side of the respondents.
Wherefore, the judgment appealed from should be and is hereby affirmed, with costs against
the petitioner. So ordered.
Yulo, C.J., Moran Imperial, 1 and Hantiveras, 1 JJ., concur.
Separate Opinions
OZAETA, J., dissenting:
I regret to say that the omnibus opinion of the majority is a straddle over the baseless finding
that Maria Florentino died in 1892 and the assumption that she died in 1885. Since she could not
have died twice and the date of her demise was properly raised as an issue in this case the
equivocal position thus taken rests on no solid factual foundation. Straddling and tottering as it is on
shaky ground, the opinion as a whole appears to me untenable and its validity questionable. Did
Maria Florentino pass away in 1892? or in 1885? If she died in 1892, then Part II of the opinion based
on the assumption that she died in 1885 is a mere obiter dictum; and if she died in 1885, then Part I
of the opinion based on the assumption that she died in 1892 is likewise a mere obiter dictum. Thus it
is not permissible for the Court to straddle the issue.
There is absolutely no basis in the evidence for the finding that Maria Florentino died in 1892.
Indeed in its findings of fact the Court of Appeals made no mention of the date of Maria Florentino's
demise, but in its conclusion of law the year she died was incidentally mentioned in the following
manner:
". . . Habiendo pasado la propiedad de la casa de mamposteria a los
demandantes, a la muerte de Maria Florentino, ocurrida en 1892 (el demandado sostiene
que fue con anterioridad a 1889), no hay duda ninguna de que los demandantes
adquirieron la servidumbre de luces y vistas sobre el camarin del demandado mediante
titulo y por prescripcion (Art. 537)."
The indirect statement to the effect that Maria Florentino died in 1892 was not based on any
evidence but solely on the conjecture indulged in by counsel for the respondents in his brief: that she
must have died in the year 1892 because the respondent Gabriel Florentino testified during the trial
as to facts of his own personal knowledge, and since he was fifty-eight years old when he testified in
1938, it must be presumed that he was at least twelve years old when his aunt Maria Florentino died,
and that therefore the death of the latter must have occurred in the year 1892. Such deductions were
absurd on their face and the Court of Appeals clearly committed an error of law in adopting them. A
finding of fact must be based on competent proofs not on a mere conjecture.
The respondents themselves alleged under oath in their original as well as in their amended
complaint (but were silent as to this in their second amended complaint) that the death of Maria
Florentino occurred in the year 1888. No evidence was presented during the trial as to said date, but
nevertheless the trial court applied the Civil Code. The petitioner as appellant before the Court of

Appeals contended that the Partidas and not the Civil Code was the law applicable. It was then that
respondents (appellees below) tried to show by deduction and conjecture that Maria Florentino must
have died in 1892. To rebut that, appellant and his attorney made inquiries as to the true date of
Maria Florentino's demise and discovered from the church record of burials as well as from her
gravestone that she died on September 7, 1885, and was buried on the following day, September 8,
1885. They alleged in their affidavit that they had been unable to ascertain that date before on
account of the misleading allegation in appellees' complaint that Maria Florentino died in 1888. A
certified copy of the partida de entierro as well as a photograph of the gravestone showing the
inscription of the date of Maria Florentino's death, were offered by appellant in a motion for new trial
filed in the Court of Appeals on March 4, 1940; and on March 14, 1940, the Court of Appeals ordered
that said motion, together with the exhibits accompanying it, "be attached to the record and brought
to the attention of the Court when the case is considered on its merits." Nevertheless the Court of
Appeals either ignored or overlooked said motion and the documentary evidence accompanying it
when it considered and decided the case on the merits. Under section 2 of Rule 55, as well as under
section 497 of Act No. 190, the court should have considered the new evidence together with that
adduced in the trial below. Thus, I think it cannot be doubted that Maria Florentino died on September
7, 1885, more than four years before the Civil Code took effect.
The majority seem to feel bound by the conjecture indulged in by the respondents and
adopted by the Court of Appeals that Maria Florentino died in 1892, considering it as a finding of fact
by the Court of Appeals. I beg to differ. A statement of fact not based on any proof whatever should
not be accepted by this Court, especially when, as in this case, it is indubitably shown to be contrary
to the truth.
It is said that the church record of Maria Florentino's burial and the photograph of her
gravestone showing the inscription:
"D. O. M.
AQUI YACEN LOS RESTOS MORTALES DE
D. BONIFACIO F. ANASTASIO
FALLECIO EN 26 DE OCTUBRE DE 1890
Y SU ESPOSA
Da MARIA FLORENTINO
QUE MURIO
EN 7 DE SETIEMBRE DE 1885.
RECUERDO DE
Da ENCARNACION FLORENTINO"
are not newly discovered evidence because they "could have been discovered by petitioner before
the trial in the Court of First Instance by the exercise of due diligence." I disagree again. There was no
incentive on the part of the petitioner to look for evidence of the exact date of Maria Florentino's
demise while the case was being tried in the court below, for the respondents themselves alleged
under oath in their original and amended complaints that she died in 1888, i.e., before the Civil Code
took effect, and introduced no evidence whatever that she died after 1889. It was only when the
respondents in their brief before the Court of Appeals tried to show by mental acrobatism that
she must have died in 1892 in order to justify the application of the Civil Code, that the petitioner
became interested in finding out the exact date of her death in order to impugn that contention.
Under the circumstances, I entertain no doubt that the proofs offered may be considered newly
discovered within the purview of our procedural law. After all, the rules of evidence are but a means to
an end to help establish the truth. To illustrate the irrationality of applying the rules of evidence too

rigidly, let us suppose that an accused has been convicted of murder and sentenced to death, but
during the pendency of his appeal his counsel discovers that the alleged victim is living and in good
health, and counsel offers to prove that fact and even presents the "murdered" man in person before
the court. Should this Court reject the offer of proof and affirm the death sentence simply because the
appellant could have discovered the existence of the alleged victim by the exercise of due diligence?
Judging from the opinion of the majority in this case, it should. What a travesty on justice!
As a last argument on this point the majority say:
"Lastly, the issue as to the date of Maria Florentino's death cannot be raised for
the first time on appeal. Petitioner did not in the trial court allege or prove this point. He
presented this issue for the first time in the Court of Appeals. (Sec. 497, Act 190.)"
That is incorrect. Plaintiffs had the burden of proof. They are the ones who invoke the Civil Code. It
was up to them to prove that the transaction took place after 1889. They realized that only during the
appeal and, to supply their omission and even contradict their own sworn allegation, they resorted to
amazing deductions from the age of one witness. So it was the respondents who "presented this issue
for the first time in the Court of Appeals." The petitioner had the right to meet it then and there.
Since I cannot ignore the glaring fact that Maria Florentino died not in 1892 but in 1885, I
cannot give my assent to the application of article 541 of the Civil Code to the controversy between
the parties. I therefore regard all the profuse discussions of the law and citations of jurisprudence
found in Part I of the majority opinion as purely academic.
Part II of the opinion is based on the assumption that Maria Florentino died in 1885. Here I
agree with my esteemed colleagues on the factual basis but not on the legal conclusions.
The transitory provisions of the Civil Code, Rules 1 and 2, provide that "rights vested under the
legislation prior to this Code by virtue of acts which transpired while it was in force, shall be governed
by such prior legislation even if the code should otherwise provide with respect thereto, or should not
recognize such rights"; and that "acts and contracts executed under the prior legislation, and which
are valid in accordance therewith, shall produce all their effects as by such prior law provided, subject
to the limitations established by these rules." The prior legislation referred to, insofar as this case is
concerned, was none other than the Partidas.
How were easements acquired under the Partidas? In three ways only: By contract, by
testament, or by prescription. (See law 14, title 31, Partida 3.) There was no provision in
the Partidas similar to article 541 of the Civil Code regarding the creation or acquisition of an
easement thru the establishment of an apparent sign thereof by the owner of two estates.
In their second alternative opinion the majority say that the easement in question was
constituted by an implied contract among the heirs of Maria Florentino under law 14, title
31, Partida 3. The law cited mentions "contract" and not "implied contract." As a source of right or
obligation, "contract" is entirely different from "implied contract." The former is based upon the
mutual consent of the parties, supported by a lawful consideration, and with a definite subject matter,
as, for instance, a contract of lease (articles 1254 and 1261, Civil Code); while the latter is merely
imposed or implied by law from an act performed or committed by one of the parties without the
consent and even against the will of the other, as, for instance, the obligation of an embezzler to
indemnify his victim and the right of the latter to demand such indemnity. The mere fact that one has
used the property of another by tolerance or implied consent of the latter can never give rise to an
implied contract under which the former may assert and enforce a right to the continued use of that
property against the owner.
Next it is said: "Granting for the sake of argument that this easement was not created through
an implied contract according to Law 14, Title 31,Partida 3, yet that provision of the Partidas was not
inconsistent with the principle in question, so that there was a gap in the Partidas which the Supreme

Court of Spain filled up from the Roman Law and modern codes by recognizing the existence of this
kind of easement." (The principle referred to is that embodied in article 541 of the Civil Code.)
Under this alternative argument it is admitted that the Partidas (the pre-Civil Code legislation)
contained no provision similar to article 541 of the Civil Code and hence it was necessary (?) to import
a principle from the Roman Law in order to fill "a gap in the old legislation" as was done by the
Supreme Court of Spain. In the last analysis, the alternative opinion applies to this case not the
previous legislation as required by the Civil Code transitory provision but a principle of law imported
from ancient Rome.
I disagree as to the necessity for such importation and "filling the gap" in order to do justice to
the parties in this case. Let us consider the facts: Before Maria Florentino died on September 7, 1885,
she owned a parcel of land in the commercial center of Vigan on which were built a house and
acamarin. The camarin was one story and the house two stories high. Naturally, it was convenient for
her to open windows on that side of the house overlooking the camarin so long as she did not decide
to rebuild and raise the latter.
The pivotal question is, Did those windows constitute an apparent sign of easement of light
and view in favor of the house and against the camarinunder the legislation in force here at that time,
so that upon the subsequent division of the two estates that sign would constitute a title of and create
such an easement? The negative answer is inescapable because the Partidas, unlike the Civil Code,
contained no provision supporting the affirmative. But my learned colleagues, emulating the Supreme
Court of Spain in similar cases, apply a principle of the Roman Law to "fill the gap" and justify the
affirmative. The practical result of such "filling the gap" is to give retroactive effect to article 541 of
the Civil Code, in violation of the transitory provision. The laws of Spain did not ex proprio
vigore apply to the Philippines. They had to be expressly extended here by Royal Decrees. Witness
the Civil Code, thePartidas, etc. That being so, the opinions of the Supreme Court of Spain could not
and did not have the force of law in the Philippines. For this reason, I cannot agree with what the
majority say that "we cannot reject a doctrine established by the Spanish Supreme Tribunal as an
integral part of the Spanish law before the promulgation of the Civil Code in 1889." I know of no Royal
Decree making such doctrine an integral part of the Spanish law in the Philippines.
If we do not apply article 541 of the Civil Code and we cannot apply it because Maria
Florentino died in 1885 there is really a gap in the case for the respondents, but none in the case
for the petitioner. 1 Under the Partidas, or rather in the absence of an express provision therein
similar to article 541, the petitioner should win; and since the parties litigant herein are entitled to
have their case decided in accordance with the pre-Civil Code legislation in force in the Philippines as
provided in the transitory provisions, since that legislation without any "gap-filling" is in favor of the
petitioner, and since to "fill the gap" would prejudice him and unduly favor the respondents, the Court
should abstain from so doing as a matter of law and justice.
I repeat that as a matter of law and justice the Court should not go out of its way to "fill a gap
in the Partidas" by resorting to a principle in the Roman Law which was not a part of the law of this
country at the time the transactions involved took place, and for which reason it could not have been
in the mind of the parties. How can we charge Maria Florentino with knowledge of that principle of the
Roman Law, or even of the decisions of the Spanish Supreme Court, when she constructed the
windows in question? How can we make that principle binding upon her heirs, or assume that they
acted in accordance therewith, when they took possession of their respective hereditary portions
upon her death on September 7, 1885? Who knows but that had they been apprised of such a
principle of Roman Law and told that it would be held binding on them they would have closed the
windows in question or made an agreement regarding its continuance as long as the camarin was not
rebuilt?

It is argued that, as the Supreme Court of Spain has held, the principle in question is not
inconsistent with the provisions of the Partidas regarding the modes of acquiring and extinguishing
easements. To that I reply: Is the Court authorized to amend the law by adding thereto a provision not
inconsistent therewith and, what is worse, make the amendment retroactive? The Supreme Court of
Spain of the last century apparently thought so, but as I cannot agree with it I must disregard its voice
and follow the light of my own reason in the premises. By adopting and following the doctrine of the
Supreme Court of Spain the majority of this Court have, I fear, established here a pernicious
precedent. Hereafter no one in this country can safely rely on our codes and statutes as enacted by
our own legislature, for the court may at any time read into them any provision or principle of law of
any other jurisdiction even of ancient and archaic Rome so long as such provision or principle is
not inconsistent therewith; altho, if we would stop and reflect for a moment, we should realize that,
logically and legally speaking, any provision not included in the law must necessarily be considered
inconsistent with the legislative will, for the legislature has not seen fit to incorporate it therein. "That
is unfair! It is absurd! No court would do that!" you would protest. Then, I ask, "why do you do it in the
instant case?"
As a third alternative opinion (Part III) the majority hold that the easement in question has
been acquired by respondents thru prescription. This opinion, however, is predicated upon the
assumption that the opening of the windows in question constituted an apparent sign of the positive
easement of light and view, thus making the period of prescription run from the date of the demise of
the original owner. But as we have seen, that assumption is wrong because it is promised upon the
improper and unlawful application of either article 541 or its equivalent principle derived from the
Roman Law and adopted by the Supreme Court of Spain. Without such assumption, the period of
prescription in this case commenced to run only from January, 1938, when the petitioner began the
construction of the new house and when it is supposed the respondents for the first time made a
formal prohibition against the petitioner's raising his building and obstructing respondents' light and
view, in accordance with the Yu- Tibo case cited in the majority opinion. Hence I think the prescription
theory is also untenable.
"Filling the gap" is particularly unfortunate and disastrous in the present case because as a
consequence the petitioner will be compelled to tear down a portion of his newly built strong-material
house, which in the present emergency, for lack of building materials, he will be unable to repair or
patch up, thus not only causing him unnecessary loss and hardship but also leaving the torn-off new
building for the public to gape at and be scandalized with. The good Ilocanos would perhaps not be
able to understand why, on top of wanton and horrible daily destructions by bombs now savagely
going on in this war-torn world, the Court should find it necessary to add another without any
apparent substantial or material benefit to anybody. "Verily," they would say, "this is a mad world!"
In this age of fluorescent lights and air conditioning devices, the concommitant easements of
light and view and altius non tollendi would seem to be only a deterrent to economic progress and
should not be considered established except when the law applicable clearly so justifies.
For the foregoing reasons I vote for the reversal of the judgment appealed from.
PARAS, J.: I concur in the foregoing dissenting opinion of Mr. Justice Ozaeta.
Footnotes
1.By special designation.
That is why respondents tried to show that Maria Florentino lived seven years longer than she did.
EN BANC
[G.R. No. L-14652. June 30, 1960.]

JUAN
GARGANTOS, petitioner, vs.
APPEALS, respondents.
Jose T. Nery for petitioner.
Constantino P. Tadena for respondents.

TAN

YANON

and

THE

COURT

OF

SYLLABUS
EASEMENT OF LIGHT AND VIEW; TWO ADJOINING ESTATES FORMERLY OWNED BY ONE PERSON;
WHEN EXISTENCE OF DOORS AND WINDOWS IS EQUIVALENT TO A TITLE. Where two adjoining
estates were formerly owned by just one person who introduced improvements on both such that the
wall of the house constructed on the first estate extends to the wall of the camarin on the second
estate; and at the time of the sale of the first estate, there existed on the aforementioned wall of the
house, doors and windows which serve as passages for light and view, there being no provision in the
deed of sale that the easement of light and view will not be established, the same is covered by
Article 624, New Civil code, 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 easement will continue actively and passively, unless at the time the
ownership of the 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 doors and windows
on the aforesaid wall of the house is equivalent to a title, for the visible and permanent sign of an
easement is the title that characterizes its existence. But 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 (Article 613, N.C.C.).
DECISION
GUTIERREZ DAVID, J p:
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 overlooking 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 of Romblon for a permit to
demolish the roofing of the old camarin. 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 through

the windows 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 the
Municipal Council of Romblon from issuing the corresponding building permit to defendants. The case
as against the members of the Municipal Council was 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. Yu-Tibo (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 owned 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 of 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 estates 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 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 (Article 530, O.C.C., now Article 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 this 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.

Pars, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcin, Reyes, J. B.

L., and Barrera, JJ., concur.
||| (Gargantos v. Tan Yanon, G.R. No. L-14652, [June 30, 1960], 108 PHIL 888-892)