G.R. No.

152440            January 31, 2005 The residents and homeowners of Hidden View
Subdivision I heard reports to the effect that Borbajo had
purchased the entire subdivision from Bontuyan through an oral
FELICITACION B. BORBAJO, petitioner, 
agreement. They also heard that they have no right to use the road
vs.
lots, since the lots have already been registered in Borbajo’s name.
HIDDEN VIEW HOMEOWNERS, INC., SPS. MARCELINA
As a consequence, the Hidden View Homeowners, Inc. invited
A. SARCON, ELY D. SARCON, ROBERTO ALVAREZ,
Borbajo to a meeting. When confronted by the homeowners about
CORAZON NOMBRADO, and GILBERT ANDRALES, in
her claim that she had bought the subdivision from Bontuyan,
their personal capacities, respondents.
Borbajo confirmed her claim of ownership over the subdivision
and the road lots. She also told them that they have "no right
DECISION regarding the road right-of-way."12

TINGA, J.: The incident prompted the homeowners of Hidden View

Subdivision I to inquire with the HLURB about the validity of the
registration of the subdivision road lots in the name of Borbajo.
Before this Court is a Rule 45 petition assailing the Decision1 dated They also asked whether she had the necessary documents for the
21 September 2001 of the Court of Appeals which reversed development of Hidden View Subdivision II  and ST Ville
the Decision2 dated 14 September 1999 of the Regional Trial Court Properties. In a letter13 dated 17 March 1997, HLURB Regional
(RTC) of Cebu City, Branch 58. Officer Antonio Decatoria, Sr. replied that under the law the owner
or developer of the subdivision should have legal title or right over
The factual antecedents are as follows: the road lots of the subdivision and that if the title or right is in the
name of other persons it follows that there is failure to comply
with the requirements of the law. The HLURB Officer pointed out
Jose C. Bontuyan (Bontuyan), Lucy Solon, Georgina Solon, Helen that Hidden View Subdivision II and ST Ville Properties had not
Solon and Vicente Solon, Jr. (the Solons) were the registered filed an application for registration and license to sell with the
owners of a parcel of agricultural land (Lot 10183-A), covering an HLURB.14
area of 13,910 square meters situated at Barangay Bacayan, Cebu
City as evidenced by Transfer Certificate of Title (TCT) No. 73709
of the Register of Deeds of Cebu City.3 At the instance of On 10 August 1997, the homeowners caused the construction of a
Bontuyan, the property was surveyed on 19 May 1991 to convert it guardhouse at the entrance of Hidden View Subdivision I and hired
into a subdivision. On 6 June 1991, the corresponding subdivision the services of a security guard to prevent unauthorized persons
plan, showing three (3) road lots as such, was submitted to the and construction vehicles from passing through their subdivision.
Cebu Office of the Department of Environment and Natural The measures adversely affected the residents of the subdivisions
Resources (DENR). On 24 July 1991, the Regional Technical at the back, as well as Borbajo herself since her delivery trucks and
Director of the DENR, Lands Management Sector, Region Office heavy equipment used in the construction of her housing projects
VII, in Cebu, approved the subdivision plan.4 Meanwhile, in his then on-going had been effectively prevented from passing through
own behalf and as attorney-in-fact of the Solons and following the the road lots.15
subdivision scheme in the plan, Bontuyan sold the resulting lots to
different individuals,5 as evidenced by the Deed of Absolute On 28 August 1997, Borbajo filed before the RTC of Cebu City,
Sale6 dated 18 June 1991. Branch 58, an action for damages and injunction against Hidden
View Homeowners, Inc., spouses Marcelina A. Sarcon and Ely D.
Among the lots sold are the ones which later became the subject of Sarcon, Roberto Alvarez and Corazon Nombrado and Gilbert
this case, the three (3) road lots. The road lots were sold to Andrales (respondents herein). Borbajo prayed for the issuance of
petitioner Felicitacion B. Borbajo, married to Danilo S. Borbajo, a temporary restraining order (TRO) directing respondents to
and Prescillana B. Bongo (Bongo), married to Patricio P. maintain the status quo and to desist from preventing her delivery
Bongo.7 However, they obtained the titles to the lots more than a trucks and other construction vehicles, and her construction
month later on 30 July 1991.8 workers, from passing through the road lots, and, after hearing on
the merits, that judgment be rendered making the restraining order
or preliminary injunction permanent and ordering the defendants to
Using the advance payments of his lot purchasers, Bontuyan pay damages.16
proceeded to develop a subdivision which was later named Hidden
View Subdivision I by its residents and homeowners.9 Later, he
applied for and secured from the Housing and Land Use The trial court issued a TRO effective for seventy-two (72) hours.
Regulatory Board (HLURB) a License to Sell10 dated 29 July 1991. After due hearing, it also granted Borbajo’s application for a writ
of preliminary injunction. It denied respondents’ motion to dismiss
on the ground that it is the HLURB which has jurisdiction over the
Borbajo also decided to develop into a subdivision the other case.17
properties adjacent to Hidden View Subdivision I which she
acquired. Thus, she applied for and received SSA 674-5-94 issued
by the Cebu City Planning and Development Department, covering After trial, the trial court rendered its decision dated 14 September
the parcel of land embraced by TCT No. 127642, to be subdivided 1999, the dispositive portion of which reads:
into twenty-three (23) lots.11 She named this new subdivision ST
Ville Properties. On 29 July 1994, she secured Certificate of "WHEREFORE, premises considered, judgment is hereby
Registration No. 05005 for the ST Ville Properties project and rendered enjoining the defendants to close [sic] the road lots in
a License to Sell the same from the HLURB. She also secured a question, hence, making the injunction permanent, subject to the
Certificate of Registration dated 18 August 1994 for another right of the defendants to regulate the passage thereof by the
subdivision project called Hidden View Subdivision IIfrom the plaintiff and the general public; and directing the plaintiff to donate
HLURB, with the corresponding License to Sell issued on 16 the road lots in question to the government of Cebu City. No
August 1994. The two new subdivision projects were located at the pronouncement as to any damages and as to costs.
back of Hidden View Subdivision I.
SO ORDERED."18 but not for the reasons which she has raised nor for the grounds
which the lower court relied upon.
On appeal, the Court of Appeals reversed the lower court decision.
The decretal portion of the appellate court’s decision dated 21 The ultimate question for resolution is whether respondents may
September 2001 reads: legally prevent Borbajo from using and passing through the three
(3) road lots within Hidden View Subdivision I. It is worthy of note
that the right of respondents to use the road lots themselves is not
WHEREFORE, premises considered, the present appeal is hereby
in dispute.
GRANTED. The appealed Decision in Civil Case No. CEB-20796
is hereby REVERSED and SET ASIDE and a new one is hereby
rendered DISMISSING the complaint. The counterclaim of In resolving the controversy, the lower court addressed only the
defendants-appellants is likewise dismissed for lack of legal and issue of whether respondents have the right to close the road lots,
factual bases. and the question of damages.26 It concluded that respondents
cannot legally close the road lots because these are intended for
public use. It opted not to resolve the question pertaining to the
No pronouncement as to costs.
validity of Borbajo’s acquisition of the road lots and her title
thereto on the ground that a Torrens title cannot be collaterally
SO ORDERED."19 attacked.27

Undaunted, Borbajo elevated the case to this Court. For its part, the Court of Appeals addressed the trial court’s errors
assigned by the respondents herein. The trial court allegedly erred
in: (a) finding that Borbajo was the developer of Hidden View
In her petition, Borbajo imputes error to the appellate court (a) in Subdivision I; (b) finding that the manner by which Borbajo
reversing the decision of the trial court which declared her to be acquired the road lots is irrelevant to the resolution of the issues in
the developer of Hidden View Subdivision I, (b) in finding that she this case; (c) finding that the road lots are open to the public and
had fraudulently secured the registration of the three (3) road lots, the only right of the residents therein is to regulate its use; (d) not
and (c) in declaring that she is not entitled to the injunctive relief.20 finding that the elements of an easement of a right-of-way are not
present; (e) finding that the injunction was properly issued and the
Borbajo contends that the appellate court erred in reversing the court ordered Borbajo to donate the road lots in favor of the local
finding of the RTC that she is the developer of Hidden View government unit; and (f) failing to award damages to the
Subdivision I. According to her, and as borne out by her testimony respondents.28
before the RTC, she was the true developer of Hidden View
Subdivision I even though the License to Sell was issued in the The appellate court found that the injunctive writ was erroneously
name of Bontuyan. The appellate court allegedly violated issued as the same was not based on an actual right sought to be
prevailing jurisprudence when it held that she fraudulently secured protected by law. The fact that Borbajo was the developer
the registration of the three (3) road lots since a certificate of title of Hidden View Subdivision I was not clearly established by
cannot be collaterally attacked except in direct proceedings evidence. Although Borbajo has claimed that she was the
instituted for that purpose. In fact, Hidden View Homeowners, Inc. developer of the subdivision and that Bontuyan’s name was
has filed a separate case for annulment of title against Borbajo indicated in the License to Sell, such claim carried scant weight in
which is now pending before Branch 9 of the RTC of Cebu City. the absence of a certificate of registration of the subdivision project
Further, she claims that she is entitled to the injunctive relief issued in her name by the HLURB and other documents which
considering that she is the registered owner of these road lots in prove that she was indeed the developer.29 Further, the appellate
question and, hence, she has a right in esse which deserves legal court ruled that the fact of registration of the road lots in Borbajo’s
protection.21 name was insufficient to defeat the right of the homeowners of the
subdivision and preclude them from regulating their use and
On the other hand, respondents argue that the sale of the road lots administration thereof in accordance with existing laws and
made by Bontuyan in favor of Borbajo was illegal and contrary to regulations.30 It likewise held that Borbajo had not complied with
the provisions of Presidential Decree (P.D.) No. 957 which the requisites of a compulsory easement of right-of-way and
requires that the road lots in a subdivision development shall be in pointed out the general rule that mere convenience for the
the name of the developer or owner, of which Borbajo is dominant estate is not what is required by law as the basis for
neither.22 They aver that Borbajo fraudulently obtained her titles to setting up a compulsory easement.31 Hence, this instant judicial
the road lots through a falsified deed of sale which was the recourse.
document presented to the Office of the Register of Deeds.23 They
also point out that the use by Borbajo of the road lots for the Noticeably, the appellate court dwelt at length on the question of
ingress and egress of heavy equipment has continuously resulted in whether Borbajo was the developer of the Hidden View
the rapid deterioration of the roads. Moreover, the road lots are not Subdivision I as she claimed. Apparently, Borbajo submitted this
the nearest point between the development project of Borbajo and point, with her focus set on the provisions of P.D. No. 957, as
the provincial road.24 Finally, they assert that they are merely amended, ordaining that road lots may be titled only in the name of
exercising acts of ownership which include the right to prevent the owner of the subdivision or its developer. In the process,
others from enjoying the thing owned by them. Respondents however, the Court of Appeals lost sight of the settled and decisive
oppose the issuance of a preliminary injunction because fact that Borbajo is one of the registered co-owners of the road lots
notwithstanding the registration of the subject road in Borbajo’s along with Bongo. The evidence reveals that Borbajo and Bongo
name, her title thereto is tainted by the discovery of fraud she were issued TCTs, all dated 30 July 1991, for the three (3) road
allegedly perpetrated in securing the questioned titles.25 lots situated within the Hidden View Subdivision I. These titles
were issued pursuant to the Deed of Absolute Sale dated 18 June
The result which Borbajo seeks to achieve which is to reinstate the 1991 which also mentioned the road lots as such.
preliminary injunction issued by the lower court has to be granted,
As a registered co-owner of the road lots, Borbajo is entitled to of the possession or control of one party and transfer the same to
avail of all the attributes of ownership under the Civil Code–jus the hands of another who did not have such control at the inception
utendi, fruendi, abutendi, disponendi et vindicandi.32 Article 428 of of the case and whose legal title has not clearly been established.40
the New Civil Code is explicit that the owner has the right to enjoy
and dispose of a thing, without other limitations than those
One final note. Respondents in their Answer41 neither claimed nor
established by law. A co-owner, such as Borbajo, is entitled to use
asked for the right to regulate the use of the road lots or that the
the property owned in common under Article 486 of the Civil
road lots be donated to the Cebu City Government. Thus, there was
Code. Therefore, respondents cannot close the road lots to prevent
utterly no basis for the trial court to include as it did its disposition
Borbajo from using the same.
along these lines in the decretal portion of its decision.

The Court of Appeals ruled that the road lots cannot be sold to any
WHEREFORE, the Decision of the Court of Appeals dated 21
person pursuant to P.D. No. 957, as amended. It also pointed out
September 2001 is REVERSED and SET ASIDE and the writ of
that fraud is manifest in the acquisition of titles thereto. However,
preliminary injunction issued by the Regional Trial Court of Cebu
it is a settled rule that a Torrens title cannot be collaterally
City, Branch 58, is made permanent, subject to the final outcome
attacked.
of Civil Case No. 21239 pending before the Regional Trial Court
of Cebu City, Branch 9.
It is a well-known doctrine that the issue as to whether title was
procured by falsification or fraud can only be raised in an action
No costs.
expressly instituted for the purpose. A Torrens title can be attacked
only for fraud, within one year after the date of the issuance of the
decree of registration. Such attack must be direct, and not by a SO ORDERED.
collateral proceeding. The title represented by the certificate
cannot be changed, altered, modified, enlarged, or diminished in a
G.R. No. 90596             April 8, 1991
collateral proceeding.33 The certificate of title serves as evidence of
an indefeasible title to the property in favor of the person whose
name appears therein.34 SOLID MANILA CORPORATION, petitioner, 
vs.
BIO HONG TRADING CO., INC. and COURT OF
However, in upholding the efficiency value of the disputed titles
APPEALS, respondents.
for purposes of the present petition, we are not foreclosing any
future determination by appropriate forum on the legality of
Borbajo’s titles over the road lots. Verily, a separate case for Balgos & Perez for petitioner.
annulment of titles over the road lots is now pending before the Alfredo G. de Guzman for private respondent.
court. There are serious allegations that the issuance of the TCTs
over the road lots was tainted with fraud as evidenced by
alterations made on the face of the certificates and discrepancies in
the records of the contract of absolute sale filed before the Office
of the Register of Deeds and the Notarial Division of the RTC of
Cebu City.35 If the court finds that the titles of Borbajo were
obtained fraudulently, her right to the road lots ceases as well as SARMIENTO, J.:
her right-of-way by virtue of said titles.
This is an appeal filed by way of a petition for review
In the meantime, however, we are bound by the value in law and on certiorari under Rule 45 of the Rules of Court.
the evidentiary weight of the titles in the name of Borbajo. As long
as the titles are not annulled, Borbajo remains registered a co- The petitioner raises two questions: (1) whether or not the Court of
owner and therefore her right to use the road lots subsists. Appeals1 erred in reversing the trial court which had rendered
summary judgment; and (2) whether or not it erred in holding that
Likewise, with Borbajo as a registered co-owner of the road lots, it an easement had been extinguished by merger.
is utterly pointless to discuss whether she is entitled to the
easement of right of way. Both from the text of Article 649 36 of the We rule for the petitioner on both counts.
Civil Code and the perspective of elementary common sense, the
dominant estate cannot be the servient estate at the same time. One
of the characteristics of an easement is that it can be imposed only It appears that the petitioner is the owner of a parcel of land
on the property of another, never on one’s own property. An located in Ermita, Manila, covered by Transfer Certificate of Title
easement can exist only when the servient and the dominant estates No. 157750 of the Register of Deeds of Manila. The same lies in
belong to different owners.37 the vicinity of another parcel, registered in the name of the private
respondent corporation under Transfer Certificate of Title No.
128784.
Borbajo, being a registered co-owner of the three (3) road lots, is
entitled to the injunctive relief.
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:
The requisites to justify an injunctive relief are: (a) the existence of
a right in esse or the existence of a right to be protected; and (b)
the act against which injunction is to be directed as a violation of . . .a portion thereof measuring NINE HUNDRED
such right.38 A preliminary injunction order may be granted only FOURTEEN SQUARE METERS, more or less, had
when the application for the issuance of the same shows facts been converted into a private alley for the benefit of
entitling the applicant to the relief demanded.39 A preliminary neighboring estates, this being duly annotated at the
injunction is not proper when its purpose is to take the property out 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 On April 15, 1986, the petitioner moved for summary judgment
along the Pasig River, with an area of ONE HUNDRED and the court a quo ruled on the same as follows:
SEVENTY NINE (179) SQUARE METERS, more or
less, had actually been expropriated by the City
In view of the foregoing, this Court finds it unnecessary to try this
Government, and developed pursuant to the
case on the merit (sic) and hereby resolve (sic) to grant the
beautification drive of the Metro Manila Governor. (p.
plaintiffs motion for summary judgment. (pp. 15-107, Record).5
3, Record).2

On January 19, 1987, the trial court rendered judgment against the
As a consequence, an annotation was entered in the private
private respondent, the dispositive portion of which states:
respondent's title, as follows:

WHEREFORE, judgment is hereby rendered making

Entry No. 7712/T-5000 –– CONSTRUCTION OF
permanent the temporary mandatory injunction, that
PRIVATE ALLEY –– It is hereby made of record that a
had been issued against the defendant, and for the
construction of private alley has been undertaken on the
defendant to pay the plaintiff the costs of this suit.
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 The defendant's counterclaim against the plaintiff is
subject to the following conditions to wit: (1) That the hereby dismissed, for lack of merit. (Summary
private alley shall be at least three (3) meters in width; Judgment, p. 6).6
(2) That the alley shall not be closed so long as there's a
building exists thereon (sic); (3) That the alley shall be
The private respondent appealed to the respondent Court of
open to the sky; (4) That the owner of the lot on which
Appeals.
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 Meanwhile, the private respondent itself went to the Regional Trial
maintenance and upkeep of the alley shall be at the Court on a petition for the cancellation of the annotation in
expense of the registered owner; (6) That the alley shall question. The court granted cancellation, for which the petitioner
remain open at all times, and no obstructions instituted CA-G.R. SP No. 13421 of the respondent Court of
whatsoever shall be placed thereon; (7) That the owner Appeals which ordered the restoration of the annotation "without
of the lot on which the alley has been constructed shall prejudice [to] the final outcome of7 the private respondent's own
allow the public to use the same, and allow the City to appeal (subject of this petition).
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 In reversing the trial court which had, as earlier mentioned,
the property the conditions abovementioned; other rendered summary judgment, the respondent Court of Appeals held
conditions set forth in Doc. No. 4236, Page No. 11, that the summary judgment was improper and that the lower court
Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila.3 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
The petitioner claims that ever since, it had (as well as other and that it does not impair the private respondent's title, and that
residents of neighboring estates) made use of the above private since the private respondent had acquired title to the property,
alley and maintained and contributed to its upkeep, until sometime "merger" brought about an extinguishment of the easement.
in 1983, when, and over its protests, the private respondent
constructed steel gates that precluded unhampered use.
The petitioner submits that the respondent Court of Appeals erred,
because the very deed of sale executed between the private
On December 6, 1984, the petitioner commenced suit for respondent and the previous owner of the property "excluded" the
injunction against the private respondent, to have the gates alley in question, and that in any event, the intent of the parties was
removed and to allow full access to the easement. to retain the "alley" as an easement notwithstanding the sale.

The court a quo shortly issued ex parte an order directing the As already stated at the outset, the Court finds merit in the petition.
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 There is no question that an easement, as described in the deed of
person of the dominant and servient estates upon the purchase of sale executed between the private respondent and the seller, had
the property from its former owner; (2) the petitioner has another been constituted on the private respondent's property, and has been
adequate outlet; (3) the petitioner has not paid any indemnity in fact annotated at the back of Transfer Certificate of Title No.
therefor; and (4) the petitioner has not shown that the right-of-way 128784. Specifically, the same charged the private respondent as
lies at the point least prejudicial to the servient estate. 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
The private respondent's opposition notwithstanding, the trial court allow the public to use the same, and allow the City to lay pipes for
issued a "temporary writ of preliminary injunction to continue up sewer and drainage purposes, and shall not [ask] for any indemnity
to the final termination of the case upon its merits upon the posting for the use thereof. . ."8 Its act, therefore, of erecting steel gates
of a P5,000.00 bond by the plaintiff.4 (the petitioner herein). across the alley was in defiance of these conditions and a violation
of the deed of sale, and, of course, the servitude of way.
Thereafter, the respondent corporation answered and reiterated its
above defenses.
The Court then is of the opinion that injunction was and is proper the same person.15 Merger then, as can be seen, requires full
and in denying injunctive relief on appeal, the respondent ownership of both estates.
Appellate Court committed an error of judgment and law.
One thing ought to be noted here, however. The servitude in
It is hardly the point, as the Court of Appeals held, that the private question is a personal servitude, that is to say, one constituted not
respondent is the owner of the portion on which the right-of-way in favor of a particular tenement (a real servitude) but rather, for
had been established and that an easement can not impair the benefit of the general public.
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
Personal servitudes are referred to in the following article of the
private respondent respect the easement already existing thereon.
Civil Code:
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 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
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. 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.
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 Merger, as we said, presupposes the existence of a prior servient-
tenement and maintain an independent existence. Thus: 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
Art. 617. Easements are inseparable from the estate to
merger can take place that would terminate a personal easement.
which they actively or passively belong.9

For this reason, the trial court was not in error in rendering
Servitudes are merely accessories to the tenements of which they
summary judgment, and insofar as the respondent Court of
form part.10 Although they are possessed of a separate juridical
Appeals held that it (the trial court) was in error, the Court of
existence, as mere accessories, they can not, however, be
Appeals is in error.
alienated11 from the tenement, or mortgaged separately.12

Summary judgments under Rule 34 of the Rules of Court are

The fact, however, that the alley in question, as an easement, is
proper where there is no genuine issue as to the existence of a
inseparable from the main lot is no argument to defeat the
material fact, and the facts appear undisputed based on the
petitioner's claims, because as an easement precisely, it operates as
pleadings, depositions, admissions, and affidavits of record.18 In
a limitation on the title of the owner of the servient estate,
one case, this Court upheld a decision of the trial court rendered by
specifically, his right to use (jus utendi).
summary judgment on a claim for money to which the defendant
interposed the defense of payment but which failed to produce
As the petitioner indeed hastens to point out, the deed itself receipts.19We held that under the circumstances, the defense was
stipulated that "a portion thereof [of the tenement] measuring not genuine but rather, sham, and which justified a summary
NINE HUNDRED FOURTEEN SQUARE METERS, more or judgment. In another case, we rejected the claim of acquisitive
less, had been converted into a private alley for the benefit of the prescription over registered property and found it likewise to be
neighboring estates. . ."13 and precisely, the former owner, in sham, and sustained consequently, a summary judgment rendered
conveying the property, gave the private owner a discount on because the title challenged was covered by a Torrens Certificate
account of the easement, thus: and under the law, Torrens titles are imprescriptible.20

WHEREAS, to compensate for the foregoing, the We also denied reconveyance in one case and approved a summary
parties hereto agreed to adjust the purchase price from judgment rendered thereon, on the ground that from the records,
THREE MILLION SEVEN HUNDRED NINETY the plaintiffs were clearly guilty of laches having failed to act until
THOUSAND FOUR HUNDRED FORTY PESOS after twenty-seven years.21 We likewise allowed summary
(P3,790,440.) to THREE MILLION FIVE HUNDRED judgment and rejected contentions of economic hardship as an
THREE THOUSAND TWO HUNDRED FORTY excuse for avoiding payment under a contract for the reason that
PESOS (P3,503,240.00)14 the contract imposed liability under any and all conditions.22

Hence, and so we reiterate, albeit the private respondent did In the case at bar, the defense of merger is, clearly, not a valid
acquire ownership over the property –– including the disputed defense, indeed, a sham one, because as we said, merger is not
alley –– as a result of the conveyance, it did not acquire the right to possible, and secondly, the sale unequivocally preserved the
close that alley or otherwise put up obstructions thereon and thus existing easement. In other words, the answer does not, in reality,
prevent the public from using it, because as a servitude, the alley is tender any genuine issue on a material fact and can not militate
supposed to be open to the public. against the petitioner's clear cause of action.

The Court is furthermore of the opinion, contrary to that of the As this Court has held, summary judgments are meant to rid a
Court of Appeals, that no genuine merger took place as a proceeding of the ritual of a trial where, from existing
consequence of the sale in favor of the private respondent records,23 the facts have been established, and trial would be futile.
corporation. According to the Civil Code, a merger exists when
ownership of the dominant and servient estates is consolidated in
What indeed, argues against the posturing of the private respondent And for reasons of fair play, the private respondent can not validly
–– and consequently, the challenged holding of the respondent reject CA-G.R. No. 13421 as the law of the case, after all, it was
Court of Appeals as well –– is the fact that the Court of Appeals the one that initiated the cancellation proceedings with the
itself had rendered judgment, in its CA-G.R. No. 13421, Regional Trial Court in LRC No. 273 that precipitated that appeal.
entitled Solid Manila Corporation v. Ysrael, in which it nullified In the second place, the proceedings for cancellation of annotation
the cancellation of the easement annotated at the back of the was in fact meant to preempt the injunction decreed by the lower
private respondent's certificate of title ordered by Judge Ysrael in court in this case. Plainly and simply, the private respondent is
LRC Case No. 273. As the petitioner now in fact insists, the Court guilty of forum-shopping, as we have described the term:
of Appeals' judgment, which was affirmed by this Court in its
Resolution dated December 14, 1988, in G.R. No. 83540, is at
x x x           x x x          x x x
least, the law of the case between the parties, as "law of the case"
is known in law, e.g.:
There is forum-shopping whenever, as a result of an
adverse opinion in one forum, a party seeks a favorable
x x x           x x x          x x x
opinion (other than by appeal or certiorari) in another.
The principle applies not only with respect to suits filed
Law of the case has been defined as the opinion in the courts but also in connection with litigations
delivered on a former appeal. More specifically, it commenced in the courts while an administrative
means that whatever is once irrevocably established as proceeding is pending, as in this case, in order to defeat
the controlling legal rule of decision between the same administrative processes and in anticipation of an
parties in the same case continues to be the law of the unfavorable administrative ruling and a favorable court
case, whether correct on general principles or not, so ruling. This is specially so, as in this case, where the
long as the facts on which such decision was predicated court in which the second suit was brought, has no
continue to be the facts of the case before the court. (21 jurisdiction.25
C.J.S. 330) (Emphasis supplied).
to which contempt is a penalty.26
It may be stated as a rule of general application that,
where the evidence on a second or succeeding appeal is
As it happened, in its effort to shop for a friendly forum, the
substantially the same as that on the first or preceding
private respondent found an unfriendly court and it can not be
appeal, all matters, questions, points, or issues
made to profit from its act of malpractice by permitting it to
adjudicated on the prior appeal are the law of the case
downgrade its finality and deny its applicability as the law of the
on all subsequent appeals and will not be considered or
case.
readjudicated therein. (5 C.J.S. 1267) (Emphasis
supplied.)
As a personal servitude, the right-of-way in question was
established by the will of the owner.
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 In the interesting case of North Negros Sugar Co.,  Inc. v.
refuse to examine question other than those arising Hidalgo,27 this Court, speaking through Justice Claro Recto,
subsequently to such determination and remand, or declared that a personal servitude (also a right of way in that case)
other than the propriety of the compliance with its is established by the mere "act"28 of the landowner, and is not
mandate; and if the court below has proceeded in "contractual in the nature,"29 and a third party (as the petitioner
substantial conformity to the directions of the appellate herein is a third party) has the personality to claim its benefits. In
court, its action will not be questioned on a second his separate opinion, however, Justice Jose Laurel maintained that
appeal. 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
As a general rule a decision on a prior appeal of the
could be no acceptance; hence no contract."31
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 The Court sees no need to relive the animated exchanges between
C.J.S. 1276-77). (Emphasis supplied.) 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
Questions necessarily involved in the decision on a
shaped history itself; after all, and coming back to the case at bar,
former appeal will be regarded as the law of the case on
it is not disputed that an easement has been constituted, whereas it
a subsequent appeal, although the questions are not
was disputed in North Negros' case. Rather, the question is
expressly treated in the opinion of the court, as the
whether it is still existing or whether it has been extinguished. As
presumption is that all the facts in the case bearing on
we held, our findings is that it is in existence and as a consequence,
the point decided have received due consideration
the private respondent can not bar the public, by erecting an
whether all or none of them are mentioned in the
obstruction on the alley, from its use.
opinion. (5 C.J.S. 1286-87). (Emphasis supplied.)24

WHEREFORE, the petition is GRANTED. The decision of the

CA-G.R. No. 13421 is the law of the case because clearly, it was
Court of Appeals is SET ASIDE and the decision of the Regional
brought to determine the rights of the parties regarding the
Trial Court is hereby REINSTATED. The petitioner and its
easement, subject of the controversy in this case, although as a
counsel are hereby required to SHOW CAUSE why they should
petition for "cancellation of annotation" it may have, at a glance,
not be punished for contempt of court, and also administratively
suggested a different cause of action.
dealt with in the case of counsel, for forum shopping.
IT IS SO ORDERED. In support of the complaint, respondent presented TCT No. RT-
56958 (100547) covering the property denominated as Lot 1-B in
the name of Concepcion de la Peña, mother of petitioner herein
G.R. No. 137882             February 04, 2005
Alfredo de la Cruz. The aforesaid TCT reveals that a portion of Lot
1-B, consisting of 85 square meters and denominated as Lot 1-B-2,
SPS. ELIZABETH DE LA CRUZ and ALFREDO DE LA is being occupied by petitioners. To prove that petitioners have an
CRUZ, petitioners,  existing right of way to a public highway other than the pathway
vs. which respondent owns, the latter adduced in evidence a copy of
OLGA RAMISCAL represented by ENRIQUE the plan of a subdivision survey for Concepcion de la Peña and
MENDOZA, Respondent. Felicidad Manalo prepared in 1965 and subdivision plan for
Concepcion de la Peña prepared in 1990. These documents
establish an existing 1.50-meter wide alley, identified as Lot 1-B-1,
DECISION on the lot of Concepcion de la Peña, which serves as passageway
from the lot being occupied by petitioners (Lot 1-B-2), to Boni
CHICO-NAZARIO, J.: Serrano Avenue.8

This petition for review assails (1) the Resolution1 dated 11 On the other hand, petitioners, in their Answer, admitted having
September 1998 of the Court of Appeals which dismissed the used a 1.10-meter wide by 12.60-meter long strip of land on the
appeal filed by petitioners from the Decision dated 31 July 1997 of northern side of respondent’s property as their pathway to and
the Regional Trial Court (RTC), Branch 91, Quezon City, for from 18th Avenue, the nearest public highway from their property,
Demolition of Illegally Constructed Structure, and (2) the but claimed that such use was with the knowledge of respondent.9
Resolution2 dated 05 March 1999 denying the subsequent motion
for reconsideration. Petitioners alleged in their Answer that in 1976, respondent
initiated the construction on her property of a motor shop known as
The following facts, as recapitulated by the trial court, are Phil. Orient Motors and they, as well as the other occupants of the
undisputed. property at the back of respondent’s land, opposed the construction
of the perimeter wall as it would enclose and render their property
without any adequate ingress and egress. They asked respondent to
Respondent Olga Ramiscal is the registered owner of a parcel of give them a 1.50-meter wide and 40.15-meter long easement on the
land located at the corner of 18th Avenue and Boni Serrano eastern side of her property, which would be reciprocated with an
Avenue, Murphy, Quezon City, covered by Transfer Certificate of equivalent 1.50-meter wide easement by the owner of another
Title (TCT) No. 300302 of the Register of Deeds for Quezon adjacent estate. Respondent did not want to give them the
City.3 Petitioners SPS. ELIZABETH and ALFREDO DE LA easement on the eastern side of her property, towards Boni Serrano
CRUZ are occupants of a parcel of land, with an area of eighty- Avenue but, instead, offered to them the said 1.10-meter wide
five (85) square meters, located at the back of Ramiscal’s property, passageway along the northern side of her property towards 18th
and covered by TCT No. RT-56958 (100547) in the name of Avenue, which offer they had accepted. 10
Concepcion de la Peña, mother of petitioner Alfredo de la Cruz.4

Petitioners additionally averred in their Answer that they were

The subject matter of this case is a 1.10-meter wide by 12.60-meter made to sign a document stating that they waived their right to ask
long strip of land owned by respondent which is being used by for an easement along the eastern side of respondent’s property
petitioners as their pathway to and from 18th Avenue, the nearest towards Boni Serrano Avenue, which document was among those
public highway from their property. Petitioners had enclosed the submitted in the application for a building permit by a certain
same with a gate, fence, and roof.5 "Mang Puling,"11 the person in charge of the construction of the
motor shop. That was why, according to petitioners, the perimeter
In 1976, respondent leased her property, including the building wall on respondent’s property was constructed at a distance of
thereon, to Phil. Orient Motors. Phil. Orient Motors also owned a 1.10-meters offset and away from respondent’s property line to
property adjacent to that of respondent’s. In 1995, Phil. Orient provide a passageway for them to and from 18th Avenue. They
Motors sold its property to San Benito Realty. After the sale, Engr. maintained in their Answer that respondent knew all along of the
Rafael Madrid prepared a relocation survey and location plan for 1.10-meter pathway and had, in fact, tolerated their use thereof.
both contiguous properties of respondent and San Benito Realty. It
was only then that respondent discovered that the aforementioned On 31 July 1997, the RTC handed down a decision,12 giving
pathway being occupied by petitioners is part of her property.6 probative weight to the evidence adduced by respondent. The
decretal portion enunciates:
Through her lawyer, respondent immediately demanded that
petitioners demolish the structure constructed by them on said Plaintiff’s claim for moral damages must be denied as no evidence
pathway without her knowledge and consent. As her letter dated 18 in support thereof was presented at all by her. Consequently,
February 1995 addressed to petitioners went unheeded, the former plaintiff is not entitled to exemplary damages.13 However, for
referred the matter to the Barangay for conciliation proceedings, having been compelled to file this suit and incur expenses to
but the parties arrived at no settlement. Hence, respondent filed protect her interest, plaintiff is entitled to an attorney’s fees in the
this complaint with the RTC in Civil Case No. Q-95-25159, amount of P10,000.00.
seeking the demolition of the structure allegedly illegally
constructed by petitioners on her property. Respondent asserted in
her complaint that petitioners have an existing right of way to a WHEREFORE, premises considered, judgment is hereby rendered
public highway other than the current one they are using, which in favor of the plaintiff and ordering the defendants to demolish the
she owns. She prayed for the payment of damages.7 structure built by them along the pathway on the eastern side of
plaintiff’s property towards 18th Avenue, Murphy, Quezon City
and to pay [the] plaintiff the amount of P10,000.00 as and by way
of attorney’s fees.
Costs against the defendants.14 May Tadeo from the Office of Atty. Judito Angelo C. Tadeo,
petitioners’ previous counsel. Thus, on 30 April 1998, when their
new counsel entered his appearance and at the same time filed an
The Court of Appeals dismissed the appeal filed by petitioners
appellants’ brief, the 45 days have run out. For failure of
from the RTC decision for failure to file brief within the
petitioners to file brief within the reglementary period, the Court of
reglementary period. The fallo of the Court of Appeals decision,
Appeals correctly dismissed said appeal pursuant to Section 1(b),
provides:
Rule 50 of the 1997 Rules of Civil Procedure.18

WHEREFORE, for failure of the defendants-appellants to file brief

Neither can the members of this Court lend credence to petitioners’
within the reglementary period, the instant appeal is hereby
contention that the written note of Atty. Tadeo’s office on the face
DISMISSED pursuant to Section 1(e), Rule 50 of the 1997 Rules
of the Order reads that the said office received it on 17 March
of Civil Procedure.
1998.19

The Compliance/Explanation filed by defendants-appellants,

It is a rule generally accepted that when the service is to be made
submitting the Letter-withdrawal of Atty. Judito Tadeo addressed
by registered mail, the service is deemed complete and effective
to the said defendants-appellants is NOTED.
upon actual receipt by the addressee as shown by the registry
return card.20 Thus, between the registry return card and said
Let a copy of this Resolution be likewise served on defendants- written note, the former commands more weight. Not only is the
appellants themselves.15 former considered as the official record of the court, but also as
such, it is presumed to be accurate unless proven otherwise, unlike
a written note or record of a party, which is often self-serving and
The motion for reconsideration filed by petitioners met the same
easily fabricated. Further, this error on the part of the secretary of
fate in the Resolution of the Court of Appeals dated 05 March the petitioners’ former counsel amounts to negligence or
1999. incompetence in record-keeping, which is not an excuse for the
delay of filing.
Petitioners now lay their cause before us through the present
petition for review, raising the following issues: Petitioners’ justification that their former counsel belatedly
transmitted said order to them only on 20 March 1998 is not a
A. WHETHER OR NOT THE DENIAL OF THE COURT OF good reason for departing from the established rule. It was the
APPEALS OF THE PETITIONERS’ MOTION FOR responsibility of petitioners and their counsel to devise a system
RECONSIDERATION OF ITS RESOLUTION DATED for the receipt of mail intended for them.21 Rules on procedure
SEPTEMBER 11, 1998 IS SANCTIONED BY THE RULINGS cannot be made to depend on the singular convenience of a party.
AND LEGAL PRONOUNCEMENTS OF THE HONORABLE
SUPREME COURT? Petitioners next take the stand that even assuming the brief was
filed late, the Court of Appeals still erred in dismissing their
B. WHETHER OR NOT THE PETITIONERS ARE petition in light of the rulings of this Court allowing delayed
NONETHELESS ENTITLED TO A LEGAL EASEMENT OF appeals on equitable grounds.22 Indeed, in certain special cases and
RIGHT OF WAY, ASSUMING NO VOLUNTARY RIGHT OF for compelling causes, the Court has disregarded similar technical
WAY WAS GRANTED THEM BY THE RESPONDENT? flaws so as to correct an obvious injustice made. 23 In this case,
petitioners, however, failed to demonstrate any justifiable reasons
or meritorious grounds for a liberal application of the rules. We
C. WHETHER OR NOT OPERATIVE EQUITABLE PRINCIPLE must remind petitioners that the right to appeal is not a
OF LACHES TO BAR THE RESPONDENT FROM DEPRIVING constitutional, natural or inherent right - it is a statutory privilege
THE PETITIONERS CONTINUED USE OF THE SAID RIGHT and of statutory origin and, therefore, available only if granted or
OF WAY?16 provided by statute.24 Thus, it may be exercised only in the manner
prescribed by, and in accordance with, the provisions of the law.25
The issues rivet on the adjective as well as on the substantive law,
specifically: (1) whether or not the Court Appeals erred in Anent the second issue, an easement or servitude is a real right,
dismissing the appeal filed by petitioners for failure to file constituted on the corporeal immovable property of another, by
appellants’ brief on time, (2) whether or not petitioners are entitled virtue of which the owner has to refrain from doing, or must allow
to a voluntary or legal easement of right of way, and (3) whether or someone to do, something on his property, for the benefit of
not respondent is barred by laches from closing the right of way another thing or person.26 The statutory basis for this right is
being used by petitioners. Article 613, in connection with Article 619, of the Civil Code,
which states:
On the first issue, petitioners assert positively that the petition was
filed on time on 30 April 1998, which is well within the 45-day Art. 613. An easement or servitude is an encumbrance imposed
period reckoned from 17 March 1998, when the secretary of their upon an immovable for the benefit of another immovable
former counsel received the notice to file appeal. belonging to a different owner.

Petitioners’ arguments fail to persuade us. The immovable in favor of which the easement is established is
called the dominant estate; that which is subject thereto, the
Press earnestly as they would, the evidence on record, servient estate.
nevertheless, evinces contrariety to petitioners’ assertion that they
have beat the 45-day period to file appellants’ brief before the Art. 619. Easements are established either by law or by the will of
appellate court. It is clear from the registry return receipt card 17 that the owners. The former are called legal and the latter voluntary
the Notice to File Brief was received on 12 March 1998 by one easements.
Did respondent voluntarily accord petitioners a right of way? the dominant estate to a public highway may be the shortest. 31 The
first three requisites are not obtaining in the instant case.
We rule in the negative. Petitioners herein failed to show by
competent evidence other than their bare claim that they and their Contrary to petitioners’ contention, the trial court found from the
tenants, spouses Manuel and Cecilia Bondoc and Carmelino records that Concepcion de la Peña had provided petitioners with
Masangkay, entered into an agreement with respondent, through an adequate ingress and egress towards Boni Serrano Avenue. The
her foreman, Mang Puling, to use the pathway to 18th Avenue, trial court, gave weight to TCT No. RT-56958 (100547) covering
which would be reciprocated with an equivalent 1.50-meter wide the property denominated as Lot 1-B in the name of Concepcion de
easement by the owner of another adjacent estate. The hands of la Peña, mother of petitioner herein Alfredo de la Cruz. Said TCT
this Court are tied from giving credence to petitioners’ self-serving indicates that a portion of Lot 1-B, consisting of 85 square meters
claim that such right of way was voluntarily given them by and denominated as Lot 1-B-2, is the one being occupied by
respondent for the following reasons: petitioners.32 In this connection, a copy of the plan of a subdivision
survey for Concepcion de la Peña and Felicidad Manalo prepared
in 1965 and subdivision plan for Concepcion de la Peña prepared
First, petitioners were unable to produce any shred of document
in 1990 revealed an existing 1.50-meter wide alley, identified as
evidencing such agreement. The Civil Code is clear that any
Lot 1-B-1, on the lot of Concepcion de la Peña, which serves as
transaction involving the sale or disposition of real property must
passageway from the lot being occupied by petitioners (Lot 1-B-2)
be in writing.27 Thus, the dearth of corroborative evidence opens
to Boni Serrano Avenue.33 During the trial, petitioner Elizabeth de
doubts on the veracity of the naked assertion of petitioners that
la Cruz herself admitted knowledge of the existence of the
indeed the subject easement of right of way was a voluntary grant
subdivision plan of Lot 1-B prepared for Concepcion de la Peña by
from respondent. Second, as admitted by the petitioners, it was
Engr. Julio Cudiamat in 1990. The Subdivision Plan subdivided
only the foreman, Mang Puling, who talked with them regarding
Lot 1-B into three portions, namely:
said pathway on the northern side of respondent’s property. Thus,
petitioner Elizabeth de la Cruz testified that she did not talk to
respondent regarding the arrangement proposed to them by Mang (1) Lot 1-B-1, which is an existing alley, consisting of 59.60
Puling despite the fact that she often saw respondent. 28 It is, square meters, towards Boni Serrano Avenue;
therefore, foolhardy for petitioners to believe that the alleged
foreman of respondent had the authority to bind the respondent
(2) Lot 1-B-2, consisting of 85.20 square meters, which is being
relating to the easement of right of way. Third, their explanation
occupied by petitioners; and
that said Mang Puling submitted said agreement to the Quezon
City Engineer’s Office, in connection with the application for a
building permit but said office could no longer produce a copy (3) Lot 1-B-3, consisting also of 85.20 square meters, which is
thereof, does not inspire belief. As correctly pointed out by the trial being occupied by the sister of petitioner Alfredo dela Cruz.34
court,29 petitioners should have requested a subpoena duces
tecum from said court to compel the Quezon City Engineer’s
From petitioner Elizabeth de la Cruz’s own admission, Lot 1-B-1
Office to produce said document or to prove that such document is
was intended by the owner, Concepcion de la Peña, to serve as an
indeed not available.
access to a public highway for the occupants of the interior portion
of her property.35 Inasmuch as petitioners have an adequate outlet
The fact that the perimeter wall of the building on respondent’s to a public highway (Boni Serrano Avenue), they have no right to
property was constructed at a distance of 1.10 meters away from insist on using a portion of respondent’s property as pathway
the property line, does not by itself bolster the veracity of towards 18th Avenue and for which no indemnity was being paid
petitioners’ story that there was indeed such an agreement. Further, by them.
as noted by the trial court, it was Atty. Federico R. Onandia,
counsel of Phil. Orient Motors, who wrote petitioners on 25
Petitioner Elizabeth de la Cruz claimed before the trial court that
August 1994 advising them that his client would close the pathway
although there was indeed a portion of land allotted by Concepcion
along 18th Avenue, thereby implying that it was Phil. Orient
de la Peña to serve as their ingress and egress to Boni Serrano
Motors, respondent’s lessee, which tolerated petitioners’ use of
Avenue, petitioners can no longer use the same because de la Peña
said pathway.30
had constructed houses on it. As found by the trial court, the
isolation of petitioners’ property was due to the acts of Concepcion
Likewise futile are petitioners’ attempts to show that they are de la Peña, who is required by law to grant a right of way to the
legally entitled to the aforesaid pathway under Article 649 of the occupants of her property. In the trial court’s rationale:
Civil Code, to wit:
…Article 649 of the Civil Code provides that the easement of right
Art. 649. The owner, or any person who by virtue of a real right of way is not compulsory if the isolation of the immovable is due
may cultivate or use any immovable, which is surrounded by other to the proprietor’s own acts. To allow defendants access to
immovables pertaining to other persons, and without adequate plaintiff’s property towards 18th Avenue simply because it is a
outlet to a public highway, is entitled to demand a right of way shorter route to a public highway, despite the fact that a road right
through the neighboring estates, after payment of the proper of way, which is even wider, although longer, was in fact provided
indemnity. for them by Concepcion de la Peña towards Boni Serrano Avenue
would ignore what jurisprudence has consistently maintained
through the years regarding an easement of right of way, that
The conferment of a legal easement of right of way under Article
"mere convenience for the dominant estate is not enough to serve
649 is subject to proof of the following requisites: (1) it is
as its basis. To justify the imposition of this servitude, there must
surrounded by other immovables and has no adequate outlet to a
be a real, not a fictitious or artificial necessity for it."… In
public highway; (2) payment of proper indemnity; (3) the isolation
Francisco vs. Intermediate Appellate Court, 177 SCRA 527, it was
is not the result of its own acts; (4) the right of way claimed is at
likewise held that a person who had been granted an access to the
the point least prejudicial to the servient estate; and (5) to the
public highway through an adjacent estate cannot claim a similar
extent consistent with the foregoing rule, where the distance from
easement in an alternative location if such existing easement was
rendered unusable by the owner’s own act of isolating his property the property bearing the signage,
from a public highway, such as what Concepcion de la Peña "FRED’S44 CANTEEN/VIDEOKE KAMBINGAN." Respondent,
allegedly did to her property by constructing houses on the 1.50 likewise, complains in her Comment about the structures installed
meter wide alley leading to Boni Serrano Avenue. And, if it were by petitioners that encroached on respondent’s property line as a
true that defendants had already bought Lot 1-B-2, the portion result of the commercial activities by petitioners on the disputed
occupied by them, from Concepcion de la Peña, then the latter is property. Petitioners have implicitly admitted this conversion of
obliged to grant defendants a right of way without indemnity.36 the property’s use by their silence on the matter in their Reply 45 and
Memorandum.46 Such conversion is a telltale sign of petitioners’
veiled pecuniary interest in asserting a right over the litigated
We hasten to add that under the above-quoted Article 649 of the
property under the pretext of an innocuous claim for a right of
Civil Code, it is the owner, or any person who by virtue of a real
way.
right may cultivate or use any immovable surrounded by other
immovable pertaining to other persons, who is entitled to demand a
right of way through the neighboring estates. In this case, Viewed from all angles, from the facts and the law, the Court finds
petitioners fell short of proving that they are the owners of the no redeeming value in petitioners’ asseverations that merit the
supposed dominant estate. Nor were they able to prove that they reversal of the assailed resolutions.
possess a real right to use such property. The petitioners claim to
have acquired their property, denominated as Lot 1-B-2, from
WHEREFORE, the instant petition is DENIED. The Resolutions
Concepcion de la Peña, mother of defendant Alfredo de la Cruz,
dated 11 September 1998 and 5 March 1999 of the Court of
who owns Lot 1-B-3, an adjacent lot. However, as earlier noted,
Appeals in CA-G.R. SP No. 68216 are AFFIRMED. The Decision
the trial court found that the title to both lots is still registered in
dated 31 July 1997 of the Regional Trial Court is likewise
the name of Concepcion de la Peña under TCT No. RT-56958
UPHELD. Costs against petitioners.
(100547).37 Neither were petitioners able to produce the Deed of
Sale evidencing their alleged purchase of the property from de la
Peña. Hence, by the bulk of evidence, de la Peña, not petitioners, is SO ORDERED.
the real party-in-interest to claim a right of way although, as
explained earlier, any action to demand a right of way from de la
G.R. No. L-10619             February 28, 1958
Peña’s part will not lie inasmuch as by her own acts of building
houses in the area allotted for a pathway in her property, she had
caused the isolation of her property from any access to a public LEOGARIO RONQUILLO, ET AL., plaintiffs-appellants, 
highway. vs.
JOSE ROCO, as Administrator of VICENTE, ROCO Y.
DOMINGUEZ ET AL., defendants-appellees.
On the third issue, petitioners cannot find sanctuary in the
equitable principle of laches under the contention that by sleeping
on her right to reclaim the pathway after almost twenty years, Moises B. Cruz for appellants.
respondent has, in effect, waived such right over the same. It is not Vicente Roco, Jr. for appellees.
just the lapse of time or delay that constitutes laches. The essence
of laches is the failure or neglect, for an unreasonable and
unexplained length of time, to do that which, through due MONTEMAYOR, J.:
diligence, could or should have been done earlier, thus giving rise
to a presumption that the party entitled to assert it had either Involving as it does only a question of law, the present appeal from
abandoned or declined to assert it.38 the order of the Court of First Instance of Camarines Sur, dated
March 6, 1955, dismissing the amended and supplemental
The essential elements of laches are: (a) conduct on the part of the complaint of plaintiffs on motion of defendants that it did not state
defendant, or of one under whom he claims, giving rise to the a cause of action, was taken directly to this Court.
situation complained of; (b) delay in asserting complainant’s rights
after he had knowledge of defendant’s acts and after he has had the The facts and the issue involved in the appeal are well and
opportunity to sue; (c) lack of knowledge or notice by defendant correctly stated in the appealed order, the pertinent portion of
that the complainant will assert the right on which he bases his which we are reproducing and making our own:
suit; and (d) injury or prejudice to the defendant in the event the
relief is accorded to the complainant.39
The amended and supplemental complaint alleged that
the plaintiffs have been in the continuous and
The second and third elements, i.e., knowledge of defendant's acts uninterrupted use of a road or passage way which
and delay in the filing of such suit are certainly lacking here. As traversed the land of the defendants and their
borne by the records, it was only in 1995 that respondent found out predecessors in interest, in going to Igualdad Street and
that the pathway being used by petitioners was part of her property the market place of Naga City, from their residential
when a relocation survey and location plan of her property and the land and back, for more than 20 years; that the
adjacent land bought by San Benito Realty were prepared. 40 She defendants and the tenants of Vicente Roco, the
immediately demanded petitioners to demolish the structure predecessors in interest of the said defendants have long
illegally constructed by them on her property without her recognized and respected the private legal easement of
knowledge and consent. As her letter dated 18 February 1995 road right of way of said plaintiffs; that on May 12,
addressed to petitioners fell on deaf ears, and as no settlement was 1953, the defendants Jose Roco thru his co-defendants,
arrived at by the parties at the Barangaylevel, respondent Raymundo Martinez and their men with malice
seasonably filed her complaint with the RTC in the same year.41 aforethought and with a view to obstructing the
plaintiffs' private legal easement over the property of
Respondent, in her Comment,42 brings the Court’s attention to the late Vicente Roco, started constructing a chapel in
petitioners’ conversion of the pathway, subject matter of this case, the middle of the said right of way construction actually
into a canteen and videoke bar, as shown by the pictures43 showing impeded, obstructed and disturbed the continuous
exercise of the rights of the plaintiffs over said right of
 way; that on July 10, 1954 the new defendants of ownership and other real rights in real property, excludes
Natividad Roco and Gregorio Miras, Jr. with the therefrom the exception established by Article 539, referring to
approval of the defendant, Jose Roco and with the help discontinuous easements, such as, easement of right of way.
of their men and laborers, by means of force, (Bargayo vs.  Camumot, 40 Phil., 857, 867).
intimidation, and threats, illegally and violently planted
wooden posts, fenced with barbed wire and closed
In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point
hermitically the road passage way and their right of
in issue was whether or not vested rights in a right of way can be
way in question against their protests and opposition,
acquired through user from time immemorial, this Court said:
thereby preventing them from going to or coming from
their homes to Igualdad Street and the public market of
the City of Naga. It is evident, therefore, that no vested right by user from
time immemorial had been acquired by plaintiffs at the
time the Civil Code took effect. Under that Code
It is very clear from the allegations of the plaintiffs in
(Article 539) ino discontinuous easement could be
their amended and supplemental complaint, that they
acquired by prescription in any event.
claim to have acquired the easement of right of way
over the land of the defendants and the latter's
predecessors in interest, Vicente Roco, thru prescription However, in the case of Municipality of Dumangas is Bishop of
by their continuous and uninterrupted use of a narrow Jaro, 34 Phil., 545, this same Tribunal held that the continued use
strip of land of the defendants as passage way or road in by the public of a path over land adjoining the Catholic church in
going to Igualdad Street and the public market of Naga going to and from said church through its side door, has given the
City, from their residential land or houses, and return. church the right to such use by prescription, and that because of
said use by the public, an easement of right of way over said land
has been acquired by prescription, not only by the church, but also
The only question therefore to determine in this case, is
by the public, which without objection or protest on the part of the
whether an easement of right of way can be acquired
owner of said land, had continually availed itself of the easement.
thru prescription.

The minority of which the writer of this opinion is a part, believes

The dismissal was based on the ground that an easement of right of
that the easement of right of way may now be acquired through
way though it may be apparent is, nevertheless, discontinuous or
prescription, at least since the introduction into this jurisdiction of
intermittent and, therefore, cannot be acquired through
the special law on prescription through the Old Code of Civil
prescription, but only by virtue of a title. Under old as well as the
Procedure, Act No. 190. Said law, particularly, Section 41 thereof,
New Civil Code, easements may be continuous discontinuous
makes no distinction as to the real rights which are subject to
(intermittent), apparent or non-apparent, discontinuous being those
prescription, and there would appear to be no valid reason, at least
used at more or less long intervals and which depend upon acts of
to the writer of this opinion, why the continued use of a path or a
man (Articles 532 and 615 of the Old and New Civil Codes,
road or right of way by the party, specially by the public, for ten
respectively). Continuous and apparent easements are acquired
years or more, not by mere tolerance of the owner of the land, but
either, by title or prescription, continuous non-apparent easements
through adverse use of it, cannot give said party a vested right to
and discentinuous ones whether apparent or not, may be acquired
such right of way through prescription.
only by virtue of a title (Articles 537 and 539, and 620 and 622 of
the Old and New Civil Codes, respectively).
The uninterrupted and continuous enjoyment of a right
of way necessary to constitute adverse possession does
Both Manresa and Sanchez Roman are of the opinion the easement
not require the use thereof every day for the statutory
of right of way is a discontinuous one:
period, but simply the exercise of the right more or less
frequently according to the nature of the use. (17 Am.
En cambio, las servidumbres discontinues se ejercitan Jur. 972)
por un hecho del hombre, y precisamente por eso son y
tienen que ser discontinuas, porque es imposible
Even under the case of Cuaycong vs. Benedicto  (supra), this
fisicamente que su uso sea incesante. Asi, la
Tribunal insinuated the rule that no discontinuous easement, like
servidumbre de paso es discontinua, porque no es
an easement of right of way, may, under Article 539 of the Old
posible que el hombre este pasando continuamente por
Civil Code, be acquired, might possibly have been changed by the
el camino, vereda o senda de que se trate. (4 Manresa,
provisions of the Code of Civil Procedure relative to prescription.
Codigo Civil Español, 5th ed, p. 529).

. . . Assuming, without deciding, that this rule has been

. . . "5º Por razon de los modos de disfrutar las
changed by the provisions of the present Code of Civil
servidumbres, en continuas y discontinuas (1).
Procedure relating to prescription, and that since its
Las continuasson aquelles cuyo uso es o puede ser
enactment discontinuous easement of acquired by
incesante, sin la intervencion de ningun hecho del
prescription, it is clear that this would not by avail
hombre, como son las de luces y otras de la misma
plaintiffs. The Code of Civil Procedure went into effect
especie; y las discontinuas, las que se usan intervalos,
on October 1, 1901. The term of prescription for the
mas o menos largos, y dependen de actos del hombre,
acquisition of right in real estate is fixed by the Code
como las de sen senda, carrera y otras de esta clase. (3
(section 41) at ten years. The evidence shows that in
Sanchez Roman, Derecho Civil, p. 488).
February, 1911, before the expiration of the term of ten
years since the time the Code of Civil Procedure took
Under the provisions of the Civil Code, old and new, particularly effect, the defendants interrupted the use of the road by
the articles thereof aforecited, it would therefore appear that the plaintiffs by constructing and maintaining a toll gate on,
easement of right of way may not be acquired through prescription. it collecting toll from persons making use of it with
Even Article 1959 of the Old Civil Code providing for prescription carts and continued to do so until they were enjoin by
 the granting of the preliminary injunction by the trial The Code of Civil Procedure (Act 190) did not change the
court in December 1912. . . (Cuayong vs. Benedicto, 37 situation. Observe that its section 41, in conferring prescriptive
Phil., 781, 796). title upon "ten years adverse possession" qualifies it by the
succeeding words "uninterruptedly continued for ten years which
is the same condition of continuity that is exacted by the Civil
Professor Tolentino in his Commentaries and Jurisprudence on the
Code.
Civil Code, Vol. I, p. 340, would appear to be of the opinion that
under, the provision of the Code of Civil Procedure relative to
prescription, even discontinuous easements, like the easement right SEC. 41. Title to Land by Prescription. — Ten years
of way, may be acquired through prescription: actual adverse possession by any person claiming to be
the owner for that time of any land or interest in land,
uninterruptedly continued for ten years by occupancy,
. . . "It is submitted that under Act No. 190, even
descent, grants, or otherwise, in whatever way such
discontinuous servitudes can be acquired by
occupancy may have commenced or continued, shall
prescription, provided it can be shown that the servitude
vest in every actual occupant or possessor of such land
was actual, open, public, continuous, under a claim of
a full and complete title, saving to the persons under
title exclusive of any other right and adverse to all other
disabilities the rights secured the next section. In
claimants'."
order to constitute such title  by prescription or adverse
possession, the possession by the claimant or by the
However, the opinion of the majority must prevail, and it is held person under or through whom he claims must have
that under the present law, particularly, the provisions of the Civil been  actual, open, public, continous, under a claim of
Code, old and new, unless and until the same is changed or title exclusive of any other right and adverse to all other
clarified, the easement of right of way may not be acquired through claimants. But failure to occupy or cultivate land solely
prescription. by reason of war shall not be deemed to constitute an
interruption of possession of the claimant, and his title
by prescription shall he complete, if in other regrets
In view of the foregoing, the order appealed from is hereby perfect, notwithstanding such failure to occupy or
affirmed. No costs. cultivate the land during the continuance of war.

Bengzon, Bautista Angelo, Labrador, Concepcion, Endencia, and The case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil.
Felix, JJ., concur. 541, does not, if properly analyzed, constitute authority to hold that
Padilla, J., concurs in the result. the easement of right of way is acquirable by prescription or
adverse possession. The Court there said:

The record shows that the church of the pueblo of

Dumangas was constructed in or about the year 1987;
that wall on the southeast side adjoins the building lot
Separate Opinions
in question; and that since the construction of the
church there has been a side door in this wall through
REYES, J.B.L., J., concurring: which the worshippers attending divine service enter
and leave, they having to pass over and cross the land in
question. It is therefore to be presumed that the use of
I would like to elaborate my reasons for concurring with the said side door also carries with it the use by faithful
majority in declaring the easement of right of way not acquirable Catholics of the municipal land over which they have
by prescription. had to pass in order to gain access to said place of
worship, and, as this use of the land has been
The essence of this easement ("servidumbre de paso") lies in the continuous, it is evident that the Church has acquired a
power of the dominant owner to cross or traverse the servient right to such use by prescription, in view of the time
tenement without being prevented or disturbed by its owner. As a that has elapsed since the church was built and
servitude, it is a limitation on the servient owner's rights of dedicated to religious worship, during which period the
ownership, because it restricts his right to exclude others from his municipality has not prohibited the passage over the
property. But such limitation exists only when the dominant owner land by the persons who attend services customarily
actually crosser, or passes over the servient estate; because when held in said church.
he does not, the servient owner's right of exclusion is perfect and
undisturbed. Since the dominant owner can not be continually and The record does not disclose the date when the
uninterruptedly crossing the servient estate, but can do so only at Government ceded to the Church the land on which the
intervals, the easement is necessarily of an intermittent or church building was afterwards erected, nor the date of
discontinuous nature. the laying out of the adjacent square that is claimed by
the municipality and on which the side door of the
Because possession of a right consists in the enjoyment of that church, which is used as an entrance by the people who
right (old Civil Code, Art. 430; Art. 423, new Civil Code) and to frequent this building, gives. There are good grounds
enjoy a right is to exercise it, it follows that the possession for presuming that in apportioning lands at the time of
(enjoyment or exercise) of a right of way is intermittent and the establishment of the pueblo of Dumangas and in
discontinuous. From this premise, it is inevitable to conclude, with designating the land adjacent to the church as a public
Manresa and Sanchez Roman, that such easement can not be square, this latter was impliedly encumbered with the
acquired by acquisitive prescription (adverse possession) because easement of a right of way to allow the public to enter
the latter requires that the possession and leave the church — a case provided for by article
be continuous or uninterrupted (old Civil Code, Art. 1941; new 567 of the Civil Code — for the municipality has never
Civil Code, Art. 1118). erected any building or executed any work which would
 have obstructed the passage and access to the side door Antonio V. Raquiza for petitioner.
of the church, and the public has been enjoying the Cesar D. Javier for respondents.
right of way over the land in question for an almost
immemorable length of time. Therefore an easement of
BARRERA, J.:
right of way over said land has been acquired by
prescription, not only by the church, but also by the
public which, without objection or protest, has The legal issue presented in this petition to review by certiorari  a
continually availed itself of the easement in question. decision of the Court of appeals, is whether the respondents Irene
(34 Phil., pp. 545-546). P. Javier, et al., owners of a building standing on their lot with
windows overlooking the adjacent lot, had acquired by prescription
an enforceable easement of light and view arising from a verbal
It will be seen that the ratio decidendi  of that case lies in the
prohibition to obstruct such view and light, alleged to have been
application of Article 567 of the old Civil Code that provides as
made upon petitioner's 
follows:
predecessor-in-interest as owner of the adjoining lot, both of which
lots being covered by Torrens titles. Both the trial court and the
ART. 567. When an estate acquired by purchase, Court of Appeals are of the view and so declared that respondents
exchange, or partition is enclosed by other estates of the Javier et al., did acquire such easement and gave judgment
vendor, exchanger, or co-owner, the latter shall be accordingly. Hence, petitioner has come to us seeking review,
obliged to grant a right of way without indemnity, in alleging that both courts are in error.
the absence of an agreement to the contrary.
The windows in question are admittedly in respondents' own
Bearing in mind the provisions of the article quoted in relation to building erected on their own lot. The easement, if there is any, is
the wording of the decision in the Dumangas case, it can be seen therefore a negative one.1 The alleged prohibition having been
that what the court had in mind is that when the Spanish Crown avowedly made in 1913 or 1914, before the present Civil Code
apportioned the land occupied by the Church of Dumangas, it took effect, the applicable legal provision is Article 538 of the
impliedly burdened the neighboring public square (which was also Spanish Civil Code which provides:
Crown property at the time) with an easement of right of way to
allow the public to enter and leave the church, because without
Art. 538. In order to acquire by prescription the
such easement the grant in favor of ecclesiastical authorities would
easements referred to in the next preceding article, the
be irrisory: what would be the use of constructing a church if no
time of the possession shall be computed, ... in negative
one could enter it? Now, if there was an implied grant of the right
easements, from the day on which the owner of the
of way by the Spanish Crown, it was clearly unnecessary to justify
dominant estate has, by a formal act, forbidden the
the existence of the easement through prescriptive acquisition.
owner of the servient estate to perform any act which
Why then does the decision repeatedly speak of prescription?
would be lawful without the easement. (Emphasis
Plainly, the word "prescription" was used in the decision not in the
supplied.)
sense of adverse possession for ten or thirty years, but in the sense
of "immemorial usage" that under the law anterior to the Civil
Code of 1889, was one of the ways in which the servitude of right As may be seen, the only question hinges on the interpretation of
of way could be acquired.1 This view is confirmed by the fact that the phrase "a formal act". The lower court and the Court of
throughout the passages hereinabove quoted, the court's decision Appeals considered any prohibition made by the owner of the
stresses that the people of Dumangas have been passing over the dominant estate, be it oral or written, sufficient compliance with
public square to go to church since the town was founded and the the law. The Court of Appeals declared:
church was built, an "almost immemorable length of time." It
would seem that the term "priscription" used in said case was
In the light of the foregoing decisions, (Cortes vs. Yu
merely a loose expression that is apt to mislead unless the court's
Tibo, 2 Phil., 26 and the decisions of the Supreme
reasoning is carefully analyzed.
Court of Spain therein cited), we agree with the trial
court that the "formal act" of prohibition contemplated
Since 1889, however, the Civil Code repealed the prior legislation; by Art. 538 of the old Civil Code may be either a
and thereafter the right of way could only be acquired by title and written or verbal act. The decisions of the Supreme
not by adverse possession (usucapio), saving those servitudes Court of Spain above-quoted do not at all mention
already acquired before the Code came into effect (Decisions, written but merely some act of prohibition. . . . .
Supreme Court of Spain 27 Oct. 1900, 1st February 1912; 11 May
1927, and 7 January 1920).
We are inclined to take the contrary view. The law is explicit. It
requires not any  form of prohibition, but exacts, in a parenthetical
Paras, C.J. and Reyes A., J., concur. expression, for emphasis, the doing not only of a specific,
particular act, but a formal act. The following definitions are
pertinent:
G.R. No. L-14116             June 30, 1960

Formal—or pertaining to form, characterized by one

LAUREANA A. CID, petitioner, 
due form or order, done in due form with a solemnity
vs.
regular; relating to matters of form. (C. J. S. vol. 37, p.
IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P.
115.)
JAVIER, FERNANDO P. JAVIER, JOSE P. JAVIER,
GUILLERMO P. JAVIER, ISIDORA P. JAVIER,
BENJAMIN P. JAVIER, and LEONOR Act—In civil law, a writing which states in legal form
CRISOLOGO, respondents. that a thing has been done, said or agreed. (1 Bouvier's
Law Dictionary, p. 150, citing Marlin Report.)
From these definitions, it would appear that the phrase "formal act" closely examined, as the court a quo did in its Order aforecited
would require not merely any writing, but one executed in due which quoted the material allegations of the complaint as follows:
form and/or with solemnity. That this is the intendment of the law
although not expressed in exact language is the reason for
The action is to quiet title and damages. But
the clarification2 made in Article 621 of the new Civil Code which
the complaint does not allege any cloud or
specifically requires the prohibition to be in "an instrument
doubt on the title, 'Transfer Certificate of
acknowledged before a notary public". This is as it should be.
Title No. T-7000 of the Register of Deeds of
Easements are in the nature of an encumbrance on the servient
the City of Davao, of the plaintiff to Lot No.
estate. They constitute a limitation of the dominical right of the
77-B-2, subdivision plan Psd-22295.
owner of the subjected property. Hence, they can be acquired only
According to the complaint, ' . . . when
by title and by prescription, in the case of positive easement, only
plaintiff bought the said lot 77-B-2 from the
as a result of some sort of invasion, apparent and continuous, of the
original owner in 1956, the Bolton Street
servient estate. By the same token, negative easements can not be
was already existing; that without
acquired by less formal means. Hence, the requirement that the
ascertaining the monuments along Bolton
prohibition (the equivalent of the act of invasion) should be by "a
Street, she had her house constructed on her
formal act", "an instrument acknowledged before a notary public."
said lot and built fence along said Bolton
Street which she believed to be the boundary
The Court of Appeals found as undisputed the fact 'that plaintiffs' between her lot and said street and in line
lot (dominant) as well as defendant's lot (servient) are covered by with other offences already existing when
Original Certificates of Title Nos. 7225 and 7545, respectively", she bought said lot; 6. That plaintiff has just
both issued by the Register of Deeds of Ilocos Norte, in pursuance discovered, after a relocation of the
of the decrees of registration issued on December 27, 1937, in monuments of her lot, Lot No. 77-B-2, that
Cadastral Case No. 51, G.L.R.O. Cadastral Record No. 1212 of the Bolton Street of the defendant has
Laoag, Ilocos Norte. Certified copies of these certificates of title encroached at least TWENTY-FIVE (25)
are found as Annexes "A" and "B", pages 77 to 80 inclusive of the SQUARE METERS with dimension of 2.5
Record on Appeal. In both of them, it does not appear any meters by 10 meters, making her actual
annotation in respect to the easement supposedly acquired by occupation of her lot 10 meters by 47.5
prescription which, counting the twenty (20) years from 1913 or meters, as indicated in the plan Annex "A"
1914, would have already ripened by 1937, date of the decrees of hereon enclosed thereon by red pencil lines;
registration. Consequently, even conceding arguendo  that such an 7. That plaintiff has just discovered also that
easement has been acquired, it had been cut off or extinguished by the width of the Bolton Street is only NINE
the registration of the servient estate under the Torrens System (9) METERS and since the defendant is now
without the easement being annotated on the corresponding asphalting the said Bolton Street, plaintiff
certificate of title, pursuant to Section 39 of the Land Registration has filed this complaint in order to quiet her
Act.3 title to the said portion of 2.5 meters by 10
meters as shown in the plan enclosed in red
pencil oil Annex "A" hereon because the
Wherefore, the decision of the Court of Appeals appealed from is
continued occupation of said portion by the
hereby reversed; the injunction issued herein dissolved; and the
defendant has cast a cloud of doubt on the
case remanded to the court of origin for adjudication of the
title of the plaintiff over the portion of
damages, if any, occasioned by the issuance of the injunction.
plaintiff's Lot No. 77-B-2 now being
Without pronouncement as to costs. So ordered.
occupied by Bolton Street, valued at four
hundred pesos per square meters.
G.R. No. L-33507 July 20, 1981
After quoting the material allegations of the complaint as above set
FE P. VELASCO, represented by ALFREDO forth, the court a quo  analyzed them carefully and scrutinizingly,
GONZALES, petitioner,  and came up with the conclusion that the allegations of the
vs. complaint state no cause of action. Thus —
HON. VICENTE N. CUSI, JR. and THE CITY OF
DAVAO, respondents.
The allegations in the complaint that the
Bolton Street encroached on the lot of the
plaintiff and that the defendant had
continuously occupied the portion so
encroached upon do not, contrary to the
DE CASTRO, J.: conclusion of the plaintiff found in the
complaint, cast ' . . a cloud of doubt on the
Petitioner filed in the Court of First Instance of Davao an action title of the plaintiff over said portion which
against Davao City to quiet title to her lot known as Lot 77-B-2, a would justify this action.
portion of which she claims to having been occupied illegally as
part of Bolton Street, Davao City. On a motion to dismiss filed by In her present petition, petitioner assigned as error of the court a
the defendant, on the ground that the complaint states no cause of quo the following:
action, the Court, presided over by respondent Judge Hon. Vicente
Cusi Jr., dismissed the case. Hence, this petition for certiorari
seeking a review of the Order of dismissal dated July 11, 1970 1. THE LOWER COURT ERRED IN
(Annex D to tile Petition). 1 DECLARING THAT THE BOLTON
STREET AS AN EASEMENT MUST
REMAIN A BURDEN ON LOT 77-B-2
The dismissal being on the ground that the complaint does not state (LOT IN QUESTION) PURSUANT TO
a cause of action, the allegations of the complaint have to be
 SECTION 39 OF ACT 496 ON THE Third. Any public highway, way, private
GROUND THAT IT IS SUBJECT TO way, ... or any government irrigation, canal,
EASEMENT OF PUBLIC HIGHWAY. or lateral thereof ...

2. THE LOWER COURT ERRED IN From the foregoing provision, Bolton Street which is a public
DECLARING THAT THE PORTION OF highway, already subsisting when O.C.T. No. 638 was issued, as
THE LAND OF PETITIONER this fact is apparent too from the face of the complaint itself, is
ENCROACHED UPON BY THE deemed to have attached as a legal encumbrance to the lot
RESPONDENT CITY OF DAVAO'S originally registered lot No. 77, notwithstanding the lack of an
BOLTON STREET DOES NOT CAST A annotation thereof on O.C.T. No. 638. petitioner, therefore, cannot
CLOUD OF DOUBT IN THE TITLE OF rely, as she almost entirely does for the relief she seeks, on the
PETITIONER. aforequoted provision, which she had repeatedly cited but without
making mention, perhaps conveniently, of the exception as
expressly provided in the later part of the legal provision invoked
3. THE LOWER COURT ERRED IN
(Sec. 39, Act 496).
DECLARING THAT ASSUMING THE
FACTS ALLEGED IN THE COMPLAINT
TO BE TRUE, A JUDGMENT UPON THE If from the undisputed fact Chat when Lot -77 was registered,
SAME IN ACCORDANCE WITH THE Bolton Street had already been a legal encumbrance on said lot,
PRAYER COULD NOT BE RENDERED. pursuant to Section 39 of Act 496, contrary to petitioner's theory
based on the same legal provision but o committing the portion
pertinent to the instant case, there can be no gainsaying the fact
4. THE LOWER COURT ERRED IN
that petitioner's lot, Lot No. 77-B-2, which admittedly was
DISMISSING THE COMPLAINT FOR
originally a part of Lot No. 77, must have to remain subject to the
LACK OF CAUSE OF ACTION.
same legal encumbrance of a public highway.

As alleged by petitioner, the lot in question, Lot No. 77-B-2, which

From her own allegations in her complaint, Bolton Street cannot be
she bought in 1956, was part of Lot No. 77-B, which was in turn
a discontinuous easement as she claims it to be, which may not be
originally a portion of Lot No. 77, covered by O.C.T. No. 683,
acquired by prescription. Nonetheless, whether the mode of
issued on July 21, 1911. For the lot she bought, she received
acquisition of the easement that Bolton Street is, would be only by
Transfer Certificate of Title No. T-7000.
virtue of title, as petitioner contends, this is not material or of any
consequence, in the present proceedings, once it indubitably
In 1970, petitioner discovered that the Bolton Street of the City of appears as it does, from the allegations of the complaint itself, that
Davao had encroached upon her a lot of portion of 2.5 meters wide Bolton Street constituted an easement of public highway on Lot
and 10 meters long, along said Street, or an area of 25 Square No. 77, from which petitioner's lot was taken, when the said bigger
meters. She also discovered that Bolton Street was delimited to lot was original registered. It remained as such legal encumbrance,
nine (9) meters wide, but the proposed width was 15 meters, and in as effectively as if it had been duly noted on the certificate of title,
that same year 1970, the Bolton Street had already encroached on by virtue of the clear and express provision of Section 39 of Act
her lot, on the northwestern part thereof, to the extent as above 496, it being admitted that at the time of the registration of Lot 77,
stated (par. 7, Complaint, Annex A. to Petition). the public highway was already in existence or subsisting. This
fact erases whatever cause of action petitioner may have to bring
the complaint she filed in the court a quo for quieting of title on a
From The allegations of the complaint as set forth above, as well portion of the street which she claims to be part of her lot, free
as inhe questioned Order quoted earlier, We agree with respondent from encumbrance of any kind. The Order complained of has only
judge that the complaint states no cause of action upon which to this legal postulate as its basis. Nothing has been mentioned
render judgment in favor of petitioner, even assuming S the said therein on the acquisition by the City of Davao of the lot in
allegations to be true, indeed, in a motion to dismiss for lack of question by prescription, and a discussion of this matter as is found
cause of action, the allegations of the complaint must be in petitioner's brief 3 would be entirely irrelevant.
hypothetically admitted. 2

WHEREFORE, no reversible error having been found in the Order

It appears on the face of the complaint that Bolton Street has been complained of, the same is hereby affirmed, and the instant
where it is from time immemorial. When the mother title of petition, dismissed. Costs against petitioner.
petitioner's Transfer Certificate of Title No. T- 7000, which is
O.C.T. No. 638, was issued in 1911, it was issued subject to the
provisions of Section 39 of Act 496 which reads: SO ORDERED.

Section 39. Every person receiving a G.R. No. 124699               July 31, 2003
certificate of title in pursuance of a decree or
registration, and every subsequent
BOGO-MEDELLIN MILLING CO., INC., Petitioner, 
purchasers of registered land who takes a
vs.
certificate of title for value in good faith
COURT OF APPEALS AND HEIRS OF MAGDALENO
shall hold the same free of all
VALDEZ SR., Respondents.
encumbrances, except those noted on said
certificate, and any of the following
encumbrances which may be subsisting DECISION
namely:
CORONA, J.:
xxx xxx xxx
This is an appeal by certiorari under Rule 45 of the Rules of Court Santillan, and Real Property Tax Receipt No. 0949112 dated 1963
seeking to annul and set aside the decision 1dated November 17, in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also
1995 of the Court of Appeals, Tenth Division, which reversed the testified for the plaintiffs during the trial.
decision2 dated November 27, 1991 of the Regional Trial Court of
Cebu City, Branch IX, which ruled in favor of herein petitioner,
On the other hand, Bomedco’s principal defense was that it was the
Bogo-Medellin Milling Company, Inc. and dismissed herein
owner and possessor of Cadastral Lot No. 954, having allegedly
private respondents' complaint for payment of compensation
bought the same from Feliciana Santillan in 1929, prior to the sale
and/or recovery of possession of real property and damages with
of the property by the latter to Magdaleno Valdez, Sr. in 1935. It
application for restraining order or preliminary injunction; and its
also contended that plaintiffs’ claim was already barred by
resolution dated March 2, 1996 denying petitioner's motion for
prescription and laches because of Bomedco’s open and
reconsideration.
continuous possession of the property for more than 50 years.

The antecedent facts follow.

Bomedco submitted in evidence a Deed of Sale13 dated March 18,
1929; seven real estate tax receipts14 for the property covering the
Magdaleno Valdez, Sr., father of herein private respondents Sergio period from 1930 to 1985; a 1929 Survey Plan of private land for
Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat Bogo-Medellin Milling Company;15 a Survey Notification
and Daylinda Argawanon-Melendres (hereafter the heirs), Card;16 Lot Data Computation for Lot No. 954;17 a Cadastral Map
purchased from Feliciana Santillan, on December 9, 1935, a parcel for Medellin Cadastre18 as well as the testimonies of Vicente
of unregistered land covered by Tax Declaration No. 3935 with an Basmayor, Geodetic Engineer and property custodian for
area of one hectare, 34 ares and 16 centares, located in Barrio Bomedco, and Rafaela A. Belleza, Geodetic Engineer and Chief of
Dayhagon, Medellin, Cebu.3 He took possession of the property the Land Management Services of the DENR, Region VIII.
and declared it for tax purposes in his name.4
In its decision dated November 27, 1991, the trial court19 rejected
Prior to the sale, however, the entire length of the land from north Bomedco's defense of ownership on the basis of a prior sale, citing
to south was already traversed in the middle by railroad tracks that its evidence – a xerox copy of the Deed of Sale dated March
owned by petitioner Bogo-Medellin Milling Co., Inc. (hereafter 18, 1929 – was inadmissible and had no probative value. Not only
Bomedco). The tracks were used for hauling sugar cane from the was it not signed by the parties but defendant Bomedco also failed
fields to petitioner’s sugar mill. to present the original copy without valid reason pursuant to
Section 4, Rule 130 of the Rules of Court.20
When Magdaleno Valdez, Sr. passed away in 1948, herein private
respondents inherited the land. However, unknown to them, Nonetheless, the trial court held that Bomedco had been in
Bomedco was able to have the disputed middle lot which was possession of Cadastral Lot No. 954 in good faith for more than 10
occupied by the railroad tracks placed in its name in the Cadastral years, thus, it had already acquired ownership of the property
Survey of Medellin, Cebu in 1965. The entire subject land was through acquisitive prescription under Article 620 of the Civil
divided into three, namely, Cadastral Lot Nos. 953, 954 and 955. Code. It explained:
Lot Nos. 953 and 955 remained in the name of private respondents.
However, Lot No. 954, the narrow lot where the railroad tracks
Under Article 620 of the Civil Code, CONTINUOUS and
lay, was claimed by Bomedco as its own and was declared for tax
APPARENT easements can be acquired by prescription after ten
purposes in its name. 5
(10) years. The "apparent" characteristic of the questioned property
being used by defendant as an easement is no longer at issue,
It was not until 1989 when private respondents discovered the because plaintiffs themselves had acknowledged that the existence
aforementioned claim of Bomedco on inquiry with the Bureau of of the railway tracks of defendant Bomedco was already known by
Lands. Through their lawyer, they immediately demanded the legal the late Magdaleno Valdez, herein plaintiffs’ predecessor-in-
basis for Bomedco's claim over Cadastral Lot No. 954 but their interest, before the late Magdaleno Valdez purchased in 1935 from
letter of inquiry addressed to petitioner went unheeded, as was the late Feliciana Santillan the land described in the Complaint
their subsequent demand for payment of compensation for the use where defendant’s railway tracks is traversing [sic] (TSN of
of the land.6 February 5, 1991, pp. 7-8). As to the continuity of defendant’s use
of the strip of land as easement is [sic] also manifest from the
continuous and uninterrupted occupation of the questioned
On June 8, 1989, respondent heirs filed a "Complaint for Payment
property from 1929 up to the date of the filing of the instant
of Compensation and/or Recovery of Possession of Real Property
Complaint. In view of the defendant’s UNINTERRUPTED
and Damages with Application for Restraining Order/Preliminary
possession of the strip of land for more than fifity (50) years, the
Injunction" against Bomedco before the Regional Trial Court of
Supreme Court’s ruling in the case of Ronquillo, et al. v. Roco, et
Cebu.7 Respondent heirs alleged that, before she sold the land to
al. (103 Phil 84) is not applicable. This is because in said case the
Valdez, Sr. in 1935, Santillan granted Bomedco, in 1929, a railroad
easement in question was a strip of dirt road whose possession by
right of way for a period of 30 years. When Valdez, Sr. acquired
the dominant estate occurs only everytime said dirt road was being
the land, he respected the grant. The right of way expired
used by the dominant estate. Such fact would necessarily show that
sometime in 1959 but respondent heirs allowed Bomedco to
the easement’s possession by the dominant estate was never
continue using the land because one of them was then an employee
continuous. In the instant case however, there is clear continuity of
of the company.8
defendant’s possession of the strip of land it had been using as
railway tracks. Because the railway tracks which defendant had
In support of the complaint, they presented an ancient document ― constructed on the questioned strip of land had been
an original copy of the deed of sale written in Spanish and dated CONTINUOUSLY occupying said easement. Thus, defendant
December 9, 19359 ― to evidence the sale of the land to Bomedco’s apparent and continuous possession of said strip of
Magdaleno Valdez, Sr.; several original real estate tax land in good faith for more than ten (10) years had made defendant
receipts10 including Real Property Tax Receipt No. 393511 dated owner of said strip of land traversed by its railway tracks. Because
1922 in the name of Graciano de los Reyes, husband of Feliciana the railway tracks which defendant had constructed on the
questioned strip of land had been continuously occupying said Petitioner’s claim of ownership through extraordinary acquisitive
easement [sic]. Thus, defendant Bomedco’s apparent and prescription under Article 1137 of the Civil Code cannot be
continuous possession of said strip of land in good faith for more sustained.
than ten (10) years had made defendant owner of said strip of land
traversed by its railway tracks.
There is no dispute that the controversial strip of land has been in
the continuous possession of petitioner since 1929. But possession,
Respondent heirs elevated the case to the Court of Appeals which to constitute the foundation of a prescriptive right, must be
found that Bomedco did not acquire ownership over the lot. It possession under a claim of title, that is, it must be
consequently reversed the trial court. In its decision dated adverse.21 Unless coupled with the element of hostility towards the
November 17, 1995, the appellate court held that Bomedco only true owner, possession, however long, will not confer title by
acquired an easement of right of way by unopposed and prescription.22
continuous use of the land, but not ownership, under Article 620
of the Civil Code.
After a careful review of the records, we are inclined to believe the
version of respondent heirs that an easement of right of way was
The appellate court further ruled that Bomedco’s claim of a prior actually granted to petitioner for which reason the latter was able
sale to it by Feliciana Santillan was untrue. Its possession being in to occupy Cadastral Lot No. 954. We cannot disregard the fact
bad faith, the applicable prescriptive period in order to acquire that, for the years 1930, 1937, 1949, 1962 and 1963, petitioner
ownership over the land was 30 years under Article 1137 of the unequivocally declared the property to be a "central railroad right
Civil Code. Adverse possession of the property started only in of way" or "sugar central railroad right of way" in its real estate tax
1965 when Bomedco registered its claim in the cadastral survey of receipts when it could have declared it to be "industrial land" as it
Medellin. Since only 24 years from 1965 had elapsed when the did for the years 1975 and 1985.23 Instead of
heirs filed a complaint against Bomedco in 1989, Bomedco’s indicating ownership of the lot, these receipts showed that all
possession of the land had not yet ripened into ownership. petitioner had was possession by virtue of the right of way granted
to it. Were it not so and petitioner really owned the land, petitioner
would not have consistently used the phrases "central railroad right
And since there was no showing that respondent heirs or their
of way" and "sugar central railroad right of way" in its tax
predecessor-in-interest was ever paid compensation for the use of
declarations until 1963. Certainly an owner would have found no
the land, the appellate court awarded compensation to them, to be
need for these phrases. A person cannot have an easement on his
computed from the time of discovery of the adverse acts of
own land, since all the uses of an easement are fully comprehended
Bomedco.
in his general right of ownership.24

Its motion for reconsideration having been denied by the appellate

While it is true that, together with a person’s actual and adverse
court in its resolution dated March 22, 1996, Bomedco now
possession of the land, tax declarations constitute strong evidence
interposes before us this present appeal by certiorari under Rule
of ownership of the land occupied by him, 25 this legal precept does
45, assigning the following errors:
not apply in cases where the property is declared to be a mere
easement of right of way.
I
An easement or servitude is a real right, constituted on the
THE COURT OF APPEALS COMMITTED corporeal immovable property of another, by virtue of which the
REVERSIBLE ERROR WHEN IT REVERSED AND owner has to refrain from doing, or must allow someone to do,
SET ASIDE THE TRIAL COURT’S DECISION something on his property, for the benefit of another thing or
DISMISSING PRIVATE RESPONDENT’S person. It exists only when the servient and dominant estates
COMPLAINT. belong to two different owners. It gives the holder of the easement
an incorporeal interest on the land but grants no title thereto.
Therefore, an acknowledgment of the easement is an admission
II
that the property belongs to another.26

THE COURT OF APPEALS COMMITTED Having held the property by virtue of an easement, petitioner
REVERSIBLE ERROR WHEN IT ORDERED THE cannot now assert that its occupancy since 1929 was in the concept
PETITIONER TO PAY THE PRIVATE of an owner. Neither can it declare that the 30-year period of
RESPONDENT THE REASONABLE VALUE OF extraordinary acquisitive prescription started from that year.
LOT 954 AND THE AMOUNT OF TEN THOUSAND
(₱10,000.00) PESOS AS REASONABLE
ATTORNEY’S FEES. Petitioner, however, maintains that even if a servitude was merely
imposed on the property in its favor, its possession immediately
became adverse to the owner in the late 1950’s when the grant was
Petitioner Bomedco reiterates its claim of ownership of the alleged by respondent heirs to have expired. It stresses that,
land through extraordinary acquisitive prescription under Article counting from the late 1950’s (1959 as found by the trial court),
1137 of the Civil Code and laches to defeat the claim for the 30-year extraordinary acquisitive prescription had already set
compensation or recovery of possession by respondent heirs. It in by the time respondent heirs made a claim against it in their
also submits a third ground originally tendered by the trial court letters dated March 1 and April 6, 1989.
― acquisition of the easement of right of way by
prescription under Article 620 of the Civil Code.
We do not think so. The mere expiration of the period of easement
in 1959 did not convert petitioner’s possession into an adverse one.
Extraordinary Acquisitive Prescription Mere material possession of land is not adverse possession as
Under Art. 1137 of the Civil Code against the owner and is insufficient to vest title, unless such
possession is accompanied by the intent to possess as an
owner.27 There should be a hostile use of such a nature and Petitioner’s reliance on Caro vs. Court of Appeals  35 and Vda. de
exercised under such circumstances as to manifest and give notice Alberto vs. Court of Appeals  36 is misplaced. There, laches was
that the possession is under a claim of right. applied to bar petitioners from questioning the ownership of the
disputed properties precisely because they had knowledge of the
adverse claims on their properties yet tarried for an extraordinary
In the absence of an express grant by the owner, or conduct by
period of time before taking steps to protect their rights.
petitioner sugar mill from which an adverse claim can be implied,
its possession of the lot can only be presumed to have continued in
the same character as when it was acquired (that is, it possessed the Further, there is no absolute rule on what constitutes laches. It is a
land only by virtue of the original grant of the easement of right of rule of equity and applied not to penalize neglect or sleeping on
way),28 or was by mere license or tolerance of the owners one’s rights but rather to avoid recognizing a right when to do so
(respondent heirs).29 It is a fundamental principle of law in this would result in a clearly unfair situation. The question of laches is
jurisdiction that acts of possessory character executed by virtue of addressed to the sound discretion of the court and each case must
license or tolerance of the owner, no matter how long, do not start be decided according to its particular circumstances.37 It is the
the running of the period of prescription.30 better rule that courts, under the principle of equity, should not be
guided or bound strictly by the statute of limitations or the doctrine
of laches if wrong or injustice will result.
After the grant of easement expired in 1959, petitioner never
performed any act incompatible with the ownership of respondent
heirs over Cadastral Lot No. 954. On the contrary, until 1963, It is clear that petitioner never acquired ownership over Cadastral
petitioner continued to declare the "sugar central railroad right of Lot No. 954 whether by extraordinary acquisitive prescription or
way" in its realty tax receipts, thereby doubtlessly conceding the by laches.
ownership of respondent heirs. Respondents themselves were
emphatic that they simply tolerated petitioner’s continued use of
Acquisition of Easement of Right of Way By
Cadastral Lot No. 954 so as not to jeopardize the employment of
Prescription Under Art. 620 of the Civil Code
one of their co-heirs in the sugar mill of petitioner.31

Petitioner contends that, even if it failed to acquire ownership of

The only time petitioner assumed a legal position adverse to
the subject land, it nevertheless became legally entitled to the
respondents’ was when it filed a claim over the property in 1965
easement of right of way over said land by virtue of prescription
during the cadastral survey of Medellin. Since then (1965) and
under Article 620 of the Civil Code:
until the filing of the complaint for the recovery of the subject land
before the RTC of Cebu in 1989, only 24 years had lapsed. Since
the required 30-year extraordinary prescriptive period had not yet Continuous and apparent easements are acquired either by virtue of
been complied with in 1989, petitioner never acquired ownership a title or by prescription of ten years.
of the subject land.
The trial court and the Court of Appeals both upheld this view for
Laches the reason that the railroad right of way was, according to
them, continuous and apparent in nature. The more or less
permanent railroad tracks were visually apparent and
Neither can petitioner find refuge in the principle of laches. It is
they continuously  occupied the subject strip of land from 1959 (the
not just the lapse of time or delay that constitutes laches. The
year the easement granted by Feliciana Santillan to petitioner
essence of laches is the failure or neglect, for an unreasonable and
expired). Thus, with the lapse of the 10-year prescriptive period in
unexplained length of time, to do that which, through due
1969, petitioner supposedly acquired the easement of right of way
diligence, could or should have been done earlier, thus giving rise
over the subject land.
to a presumption that the party entitled to assert it had either
abandoned or declined to assert it.32
Following the logic of the courts a quo, if a road for the use of
vehicles or the passage of persons is permanently cemented or
Its essential elements are: (a) conduct on the part of the defendant,
asphalted, then the right of way over it becomes continuous in
or of one under whom he claims, giving rise to the situation
nature. The reasoning is erroneous.
complained of; (b) delay in asserting complainant’s rights after he
had knowledge of defendant’s acts and after he has had the
opportunity to sue; (c) lack of knowledge or notice by defendant Under civil law and its jurisprudence, easements are either
that the complainant will assert the right on which he bases his continuous or discontinuous according to the manner they are
suit; and (d) injury or prejudice to the defendant in the event the exercised,  not according to the presence of apparent signs or
relief is accorded to the complainant.33 physical indications of the existence of such easements. Thus, an
easement is continuous if its use is, or may be, incessant without
the intervention of any act of man, like the easement of
The second element (which in turn has three aspects) is lacking in
drainage;38 and it is discontinuous if it is used at intervals and
the case at bar. These aspects are: (a) knowledge of defendant's
depends on the act of man, like the easement of right of way.39
action, (b) opportunity to sue defendant after obtaining such
knowledge and (c) delay in the filing of such suit.34
The easement of right of way is considered discontinuous because
it is exercised only if a person passes or sets foot on somebody
Records show that respondent heirs only learned about petitioner’s
else’s land. Like a road for the passage of vehicles or persons, an
claim on their property when they discovered the inscription for
easement of right of way of railroad tracks is discontinuous
the cadastral survey in the records of the Bureau of Lands in 1989.
because the right is exercised only if and when a train operated by
Respondents lost no time in demanding an explanation for said
a person passes over another's property. In other words, the very
claim in their letters to the petitioner dated March 1, 1989 and
exercise of the servitude depends upon the act or intervention of
April 6, 1989. When petitioner ignored them, they instituted their
man which is the very essence of discontinuous easements.
complaint before the Regional Trial Court of Cebu City on June 8,
1989.
The presence of more or less permanent railroad tracks does not in None of the above options to acquire title over the railroad right of
any way convert the nature of an easement of right of way to one way was ever pursued by petitioner despite the fact that simple
that is continuous. It is not the presence of apparent signs or resourcefulness demanded such initiative, considering the
physical indications showing the existence of an easement, but importance of the railway tracks to its business. No doubt, it is
rather the manner of exercise thereof, that categorizes such unlawfully occupying and using the subject strip of land as a
easement into continuous or discontinuous. The presence of railroad right of way without valid title yet it refuses to vacate it
physical or visual signs only classifies an easement even after demand of the heirs. Furthermore, it tenaciously insists
into apparent or non-apparent. Thus, a road (which reveals a right on ownership thereof despite a clear showing to the contrary.
of way) and a window (which evidences a right to light and view)
are apparent easements, while an easement of not building beyond
We thus uphold the grant by the Court of Appeals of attorney’s
a certain height is non-apparent.40
fees in the amount of ₱10,000 considering the evident bad faith of
petitioner in refusing respondents’ just and lawful claims,
In Cuba, it has been held that the existence of a permanent railway compelling the latter to litigate.44
does not make the right of way a continuous one; it is only
apparent. Therefore, it cannot be acquired by prescription.41 In
WHEREFORE, the petition is DENIED. The appealed decision
Louisiana, it has also been held that a right of passage over
dated November 17, 1995 and resolution dated March 2, 1996 of
another's land cannot be claimed by prescription because this
the Court of Appeals are AFFIRMED with MODIFICATION.
easement is discontinuous and can be established only by title.42
Petitioner Bogo-Medellin Milling Company, Inc. is hereby ordered
to vacate the subject strip of land denominated as Cadastral Lot
In this case, the presence of railroad tracks for the passage of No. 954, remove its railway tracks thereon and return its
petitioner’s trains denotes the existence of an apparent but possession to the private respondents, the heirs of Magdaleno
discontinuous easement of right of way. And under Article 622 of Valdez, Sr. It is also hereby ordered to pay private respondents
the Civil Code, discontinuous easements, whether apparent or not, attorney's fees in the amount of ₱10,000.
may be acquired only by title. Unfortunately, petitioner Bomedco
never acquired any title over the use of the railroad right of way
SO ORDERED.
whether by law, donation, testamentary succession or contract. Its
use of the right of way, however long, never resulted in its
acquisition of the easement because, under Article 622, the G.R. No. L-14652             June 30, 1960
discontinuous easement of a railroad right of way can only be
acquired by title and not by prescription.1âwphi1
JUAN GARGANTOS, petitioner, 
vs.
To be sure, beginning 1959 when the original 30-year grant of TAN YANON and THE COURT OF APPEALS, respondents.
right of way given to petitioner Bomedco expired, its occupation
and use of Cadastral Lot No. 954 came to be by mere tolerance of
Jose T. Nery for petitioner.
the respondent heirs. Thus, upon demand by said heirs in 1989 for
Constantino P. Tadena for respondents.
the return of the subject land and the removal of the railroad tracks,
or, in the alternative, payment of compensation for the use thereof,
petitioner Bomedco which had no title to the land should have GUTIERREZ DAVID, J.:
returned the possession thereof or should have begun paying
compensation for its use.
Juan Gargantos appeals by certiorari from the decision of the
Court of Appeals reversing the judgment of the Court of First
But when is a party deemed to acquire title over the  use  of such Instance of Romblon.
land (that is, title over the easement of right of way)? In at least
two cases, we held that if: (a) it had subsequently entered into
a contractual right of way with the heirs for the continued use of The record discloses that the late Francisco Sanz was the former
the land under the principles of voluntary easements or (b) it had owner of a parcel of land containing 888 square meters, with the
filed a case against the heirs for conferment on it of a legal buildings and improvements thereon, situated in the poblacion of
easement of right of way under Article 629 of the Civil Code, then Romblon. He subdivided the lot into three and then sold each
title over the use of the land is deemed to exist. The conferment of portion to different persons. One portion was purchased by
a legal easement of right of way under Article 629 is subject to Guillermo Tengtio who subsequently sold it to Vicente Uy Veza.
proof of the following: Another portion, with the house of strong materials thereon, was
sold in 1927 to Tan Yanon, respondent herein. This house has on
its northeastern side, doors and windows over-looking the third
(1) it is surrounded by other immovables and has no portion, which, together with the camarin and small building
adequate outlet to a public highway; thereon, after passing through several hands, was finally acquired
by Juan Gargantos, petitioner herein.
(2) payment of proper indemnity;
On April 23, 1955, Gargantos applied to the Municipal Mayor for
a permit to demolish the roofing of the old camarin. The permit
(3) the isolation is not the result of its own acts; and
having been granted, Gargantos tore down the roof of the camarin.
On May 11, 1955, Gargantos asked the Municipal Council of
(4) the right of way claimed is at the point least Romblon for another permit, this time in order to construct a
prejudicial to the servient estate, and, insofar as combined residential house and warehouse on his lot. Tan Yanon
consistent with this rule, the distance from the dominant opposed approval of this application.
estate to the highway is the shortest.43
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 We find that respondent Tan Yanon's property has an easement of
him from constructing a building that would prevent plaintiff from light and view against petitioner's property. By reason of his
receiving light and enjoying the view trough the window of his easement petitioner cannot construct on his land any building
house, unless such building is erected at a distance of not less than unless he erects it at a distance of not less than three meters from
three meters from the boundary line between the lots of plaintiff the boundary line separating the two estates.
and defendant, and to enjoin the members of Municipal Council of
Romblon from issuing the corresponding building permit to
Wherefore, the appealed decision is hereby affirmed with costs
defendant. The case as against the members of the Municipal
against petitioner.
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 [G.R. No. L-66520. August 30, 1988.]
to pay defendant the sum of P12,500.00 by way of compensatory,
exemplary, moral and moderate damages. EDUARDO C. TAÑEDO, Petitioner, v. HON. JUANITO A.
BERNAD, Presiding Judge of the Regional Trial Court, 7th
Judicial Region, Branch XXI, Cebu City; Spouses ROMEO
On appeal, the Court of Appeals set aside the decision of the Court
SIM and PACITA S. SIM; and Spouses ANTONIO
of First Instance of Romblon and enjoined defendant from
CARDENAS and MAE LINDA CARDENAS, Respondents.
constructing his building unless "he erects the same at a distance of
not less than three meters from the boundary line of his property,
Numeriano F . Capangpangan for Petitioner.
in conformity with Article 673 of the New Civil Code."
Meinrado P. Paredes for Private Respondents.
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 SYLLABUS
the property of petitioner Gargantos.

The kernel of petitioner's argument is that respondent never 1. REMEDIAL LAW; COMPLAINT; DISMISSAL THEREOF
acquired any easement either by title or by prescription. Assuredly, FOR LACK OF CAUSE OF ACTION; EXPLAINED. — The
there is no deed establishing an easement. Likewise, neither dismissal of the complaint on the ground of lack of cause of action,
petitioner nor his predecessors-in-interest have ever executed any is precipitate. The settled rule where dismissal of an action is
deed whereby they recognized the existence of the easement, nor sought on the ground that the complaint does not state a cause of
has there been final judgment to that effect. Invoking our decision action is, that the insufficiency of the cause of action must appear
in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains that on the face of the complaint. And the test of the sufficiency of the
respondent has not acquired an easement by prescription because ultimate facts alleged in the complaint to constitute a cause of
he has never formally forbidden petitioner from performing any act action, is whether or not, admitting the facts alleged, the court can
which would be lawful without the easement, hence the render a valid judgment upon the same in accordance with the
prescriptive period never started. prayer of the complaint. For this purpose, the movant is deemed to
admit hypothetically the truth of the facts thus averred.
It is obvious, however, that Article 538, O.C.C. (now Article 621,
2. CIVIL LAW; DAMAGES; DETERMINED IN A TRIAL IN
N.C.C.) and the doctrine in the Yu-Tibo case are not applicable
CASE OF BREACH OF PROMISE TO SELL. — Considering the
herein because the two estates, that now owned by petitioner, and
admission of defendant Cardenas, and that his promise to sell Lot
that owner by respondent, were formerly owned by just one
7501-B to Eduardo Tañedo appears to be for a valuable
person, Francisco Sanz. It was Sanz who introduced improvements
consideration, a trial is necessary to determine, at the very least,
on both properties. On that portion presently belonging to
the amount of damages suffered by the plaintiff Eduardo Tañedo
respondent, he constructed a house in such a way that the
by reason of such breach of promise to sell, if indeed there is such
northeastern side thereof extends to the wall of the camarin on the
a breach.
portion now belonging to petitioner. On said northeastern side of
the house, there are windows and doors which serve as passages
3. ID.; EASEMENT; ALIENATION OF DOMINANT AND
for light and view. These windows and doors were in existence
SERVIENT ESTATES, NOT GROUND FOR ITS
when respondent purchased the house and lot from Sanz. The deed
EXTINGUISHMENT; CASE AT BAR. — The finding of the trial
sale did not provide that the easement of light and view would not
court that petitioner Tañedo’s right to continue to use the septic
be established. This then is precisely the case covered by Article
tank, erected on Lot 7501-B, ceased upon the subdivision of the
541, O.C.C (now Article 624, N.C.C) which provides that the
land and its subsequent sale to different owners who do not have
existence of an apparent sign of easement between two estates,
the same interest, also appears to be contrary to law. Article 631 of
established by the proprietor of both, shall be considered, if one of
the Civil Code enumerates the grounds for the extinguishment of
them is alienated, as a title so that the easement will continue
an easement. The alienation of the dominant and servient estates to
actively and passively, unless at the time the ownership of the two
different persons is not one of the grounds for the extinguishment
estate is divided, the contrary is stated in the deed of alienation of
of an easement. On the contrary, use of the easement is continued
either of them, or the sign is made to disappear before the
by operation of law. Article 624 of the Civil Code provides: "Art.
instrument is executed. The existence of the doors and windows on
624. The existence of an apparent sign of easement between two
the northeastern side of the aforementioned house, is equivalent to
estates, established or maintained by the owner of both, shall be
a title, for the visible and permanent sign of an easement is the title
considered, should either of them be alienated, as a title in order
that characterizes its existence (Amor vs. Florentino, 74 Phil., 403).
that the easement may continue actively and passively, unless, at
It should be noted, however, that while the law declares that the
the time the ownership of the two estates is divided, the contrary
easement is to "continue" the easement actually arises for the first
should be provided in the title of conveyance of either of them, or
time only upon alienation of either estate, inasmuch as before that
the sign aforesaid should be removed before the execution of the
time there is no easement to speak of, there being but one owner of
deed. This provision shall also apply in case of the division of a
both estates (Articles 530, O.C.C., now Articles 613, N.C.C).
thing owned in common by two or more persons." In the instant
case, no statement abolishing or extinguishing the easement of Cardenas, the Register of Deeds of Cebu City, and Banco
drainage was mentioned in the deed of sale of Lot 7501-A to Cebuano, Cebu City Development Bank. 5
Eduardo Tañedo. Nor did Antonio Cardenas stop the use of the
drain pipe and septic tank by the occupants of Lot 7501-A before Answering, the spouses Romeo and Pacita Sim claimed that they
he sold said lot to Eduardo Tañedo. Hence, the use of the septic are the absolute owners of Lot 7501-B and that Eduardo Tañedo
tank is continued by operation of law. Accordingly, the spouses has no right to redeem the land under Art. 1622 of the Civil Code
Romeo and Pacita Sim, the new owners of the servient estate (Lot as the land sought to be redeemed is much bigger than the land
7501-B), cannot impair, in any manner whatsoever, the use of the owned by Tañedo. 6
servitude.
Antonio Cardenas, upon the other hand, admitted that he had
agreed to sell Lot 7501-B to Eduardo Tañedo and claimed by way
of cross-claim against the spouses Romeo and Pacita Sim, that the
DECISION Deed of Sale he had executed in favor of said spouses was only
intended as an equitable mortgage, to secure the payment of
amounts received by him from said spouses as petty loans. 7

PADILLA, J.: In answer to the cross-claim, the spouses Romeo and Pacita Sim
insisted that the sale executed by Antonio Cardenas of Lot 7501-B
in their favor was an absolute one. 8
This is a petition for review on certiorari of the Order issued by
the respondent judge, Hon. Juanito A. Bernad, on 5 December Thereafter, or on 14 October 1983, the spouses Romeo and Pacita
1983, which dismissed the complaint for legal redemption filed by Sim filed motions to dismiss the complaint and the cross-claim, for
the petitioner in Civil Case No. CEB-994 of the Regional Trial lack of cause of action. 9
Court of Cebu, and the Order of the same respondent judge, dated
20 January 1984, which denied petitioner’s motion for Acting upon these motions and other incidental motions, the
reconsideration.chanrobles lawlibrary : rednad respondent judge issued the questioned order of 5 December 1983
dismissing the complaint and cross-claim. 10
The facts, in brief, are as follows:chanrob1es virtual 1aw library
Tañedo filed a motion for reconsideration of the order, but his
The private respondent Antonio Cardenas was the owner of two (2) motion was denied on 20 January 1984. 11
contiguous parcels of land situated in Cebu City which he had
inherited from Lourdes Cardenas and more particularly known as Hence, the present recourse by petitioner Tañedo.
Lot 7501-A, with an area of 140 square meters and Lot 7501-B,
with an area of 612 square meters. On Lot 7501-A is constructed The Court finds merit in the petition. The dismissal of the
an apartment building, while the improvements on Lot 7501-B complaint on the ground of lack of cause of action, is precipitate.
consist of one four-door apartment of concrete and strong The settled rule where dismissal of an action is sought on the
materials; one two-storey house of strong materials; a bodega of ground that the complaint does not state a cause of action is, that
strong materials; and a septic tank for the common use of the the insufficiency of the cause of action must appear on the face of
occupants of Lots 7501-A and 7501-B. A small portion of the the complaint. And the test of the sufficiency of the ultimate facts
apartment building on Lot 7501-A also stands on Lot 7501-B. alleged in the complaint to constitute a cause of action, is whether
or not, admitting the facts alleged, the court can render a valid
On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to judgment upon the same in accordance with the prayer of the
herein petitioner Eduardo C. Tañedo. 1 complaint. For this purpose, the movant is deemed to admit
hypothetically the truth of the facts thus averred. 12
Antonio Cardenas, on that same day, also mortgaged Lot 7501-B
to said Eduardo C. Tañedo as a security for the payment of a loan In the instant case, it cannot be denied that petitioner Tañedo
in the amount of P10,000.00. 2 cannot redeem the entire Lot 7501-B from the spouses Romeo and
Pacita Sim pursuant to the provisions of Art. 1622 Romeo and
Antonio Cardenas further agreed that he would sell Lot 7501-B Pacita Sim pursuant to the provisions of Art. 1622 of the Civil
only to Eduardo Tañedo in case he should decide to sell it, as the Code, since the lot sought to be redeemed, has an area of 612
septic tank in Lot 7501-B services Lot 7501-A and the apartment square meters which is much bigger, area-wise, than the lot owned
building on Lot 7501-A has a part standing on Lot 7501-B. This by petitioner Tañedo. However, the petitioner seeks to purchase
was confirmed in a letter, dated 26 February 1982, wherein only that small portion of Lot 7501-B occupied by his apartment
Antonio Cardenas asked Tañedo not to deduct the mortgage loan building, because the spouses Romeo and Pacita Sim had told him
of P10,000.00 from the purchase price of Lot 7501-A "because as to remove that portion of his building which enroaches upon Lot
we have previously agreed, I will sell to you Lot 7501-B." 3 7501-B. Whether or not this is possible should have been
determined at the pre-trial stage or trial on the merits.
Antonio Cardenas, however, sold Lot 7501-B to the herein
respondent spouses Romeo and Pacita Sim. 4 Upon learning of the Besides, the action of petitioner Tañedo is also one for recovery of
sale, Eduardo Tañedo offered to redeem the property from Romeo damages by reason of breach of promise by the respondent
Sim. But the latter refused. Instead, Romeo Sim blocked the Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the
sewage pipe connecting the building of Eduardo Tañedo built on amended complaint read, as follows:jgc:chanrobles.com.ph
Lot 7501-A, to the septic tank in Lot 7501-B. He also asked
Tañedo to remove that portion of his building enroaching on Lot "3. That by written agreement, plaintiff and defendant spouses
7501-B. As a result, Eduardo Tañedo, invoking the provisions of Antonio Cardenas and Mae Linda Cardenas agreed that in the
Art. 1622 of the Civil Code, filed an action for legal redemption event they decide to sell the adjacent Lot No. 7501-B of the
and damages, with a prayer for the issuance of a writ of subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of
preliminary injunction, before the Regional Trial Court of Cebu, the cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 9465,
docketed therein as Civil Case No. CEB-994, against the spouses situated in the City of Cebu, containing an area of SIX HUNDRED
Romeo and Pacita Sim, Antonio Cardenas and his wife Mae Linda TWELVE (612) Square meters more or less which lot is adjacent
to Lot No. 7501-A of the plaintiff and where part of the plaintiff’s (4) By the expiration of the term or the fulfillment of the condition,
apartment is standing on, the same should be sold to the plaintiff, if the easement is temporary or conditional;
but far from compliance of the written agreement, defendant
spouses Antonio Cardenas and Mae Linda Cardenas sureptiously (5) By the renunciation of the owner of the dominant estate;
[sic] sold the aforestated Lot No. -7501-B- to the defendant
spouses, Romeo Sim and Pacita Sim on July 23, 1932 as per Deed (6) By the redemption agreed upon between the owners of the
of Sale notarized by Notary Public, Jorge S. Omega and entered in dominant and servient estates."cralaw virtua1aw library
his Notarial Register as Doc. No. 462; Page No.-94-; Book No. 11,
Series of 1982; As can be seen from the above provisions, the alienation of the
dominant and servient estates to different persons is not one of the
"4. That due to the sale by the defendant spouses Antonio grounds for the extinguishment of an easement. On the contrary,
Cardenas and Mae Linda Cardenas of the property in question to use of the easement is continued by operation of law. Article 624
spouses Romeo Sim and Pacita Lim, plaintiff suffered moral of the Civil Code provides:jgc:chanrobles.com.ph
damages in the form of mental anguish, sleepless nights, mental
torture, for which he is entitled to a compensation in the amount to "Art. 624. The existence of an apparent sign of easement between
be established during the trial of the case and has incurred two estates, established or maintained by the owner of both, shall
litigation expenses subject for reimbursement and attorneys fee in be considered, should either of them be alienated, as a title in order
the sum of P10,000.00 which should be chargeable to both that the easement may continue actively and passively, unless, at
defendant spouses;" 13 and the plaintiff (herein petitioner) prayed, the time the ownership of the two estates is divided, the contrary
among others:" (c) That defendant spouses Romeo Sim and Pacita should be provided in the title of conveyance of either of them, or
Sim, and spouses Antonio Cardenas and Mae Linda Cardenas be the sign aforesaid should be removed before the execution of the
ordered to pay plaintiff moral damages, litigation expenses and deed. This provision shall also apply in case of the division of a
attorneys fees in the amount of P50,000.00." 14 thing owned in common by two or more persons."cralaw
virtua1aw library
That there was a written agreement, as alleged in the complaint,
between the plaintiff Eduardo Tañedo and the defendant Antonio In the instant case, no statement abolishing or extinguishing the
Cardenas is admitted by the latter. In his answer, he alleged the easement of drainage was mentioned in the deed of sale of Lot
following:jgc:chanrobles.com.ph 7501-A to Eduardo Tañedo. Nor did Antonio Cardenas stop the
use of the drain pipe and septic tank by the occupants of Lot 7501-
"ALLEGATIONS as to written agreement is ADMITTED, but, A before he sold said lot to Eduardo Tañedo. Hence, the use of the
specifically denies that herein defendants SUREPTIOUSLY [sic] septic tank is continued by operation of law. Accordingly, the
SOLD the lot in question to the other defendant Spouses Sim, the spouses Romeo and Pacita Sim, the new owners of the servient
truth is, that the herein defendants [sic] was required to execute the estate (Lot 7501-B), cannot impair, in any manner whatsoever, the
Deed of Sale described in this paragraph 3 as security for the use of the servitude. 17
personal loans and other forms of indebtedness incurred from the
Spouses Sims but never as a conveyance to transfer ownership;" 15 WHEREFORE, the Orders complained of are hereby REVERSED
and SET ASIDE. The respondent judge or another one designated
Considering this admission of defendant Cardenas, and that his in his place is directed to proceed with the trial of this case on the
promise to sell Lot 7501-B to Eduardo Tañedo appears to be for a merits. With costs against private respondents.chanrobles.com.ph :
valuable consideration, a trial is necessary to determine, at the very virtual law library
least, the amount of damages suffered by the plaintiff Eduardo
Tañedo by reason of such breach of promise to sell, if indeed there SO ORDERED.
is such a breach.

Moreover, the finding of the trial court that petitioner Tañedo’s

right to continue to use the septic tank, erected on Lot 7501-B, G.R. No. L-23810        December 18, 1925
ceased upon the subdivision of the land and its subsequent sale to
different owners who do not have the same interest, 16 also CATALINO VALDERRAMA, plaintiff-appellee, 
appears to be contrary to law. Article 631 of the Civil Code vs.
enumerates the grounds for the extinguishment of an easement. THE NORTH NEGROS SUGAR CO., INC., defendant-
Said article provides:jgc:chanrobles.com.ph appellant.

"Art. 631. Easements are extinguished:chanrob1es virtual 1aw

library --------------------------

(1) By merger in the same person of the ownership of the dominant G.R. No. L-23811        December 18, 1925
and servient estates;

(2) By non-user for ten years; with respect to discontinuous EMILIO RODRIGUEZ, plaintiff-appellee, 
easements, this period shall be computed from the day on which vs.
they ceased to be used; and, with respect to continuous easements, THE NORTH NEGROS SUGAR CO., INC., defendant-
from the day on which an act contrary to the same took place; appellant.

(3) When either or both of the estates fall into such condition that --------------------------
the easement cannot be used; but it shall revive. If the subsequent
condition of the estates or either of them should again permit its
use, unless when the use becomes possible, sufficient time for G.R. No. L-23812        December 18, 1925
prescription has elapsed, in accordance with the provisions of the
preceding number; SANTOS URRA ET AL., plaintiffs-appellees, 
vs.
THE NORTH NEGROS SUGAR CO., INC., defendant- of sugar cane; that said easement of way was established without
appellant. 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.
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr., for
appellant.
Camus & Delgado for appellees. 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.
VILLAMOR, J.:
In view of the similarity of the facts and questions raised in the
three complaints, they will herein be considered jointly, as was
As appears from the record, on November 17, 1916,
done by the trail court.
several hacienda owners 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 The parties agree that the only question herein involved is as to the
minimum capacity of 300 tons, for grinding and milling all the extent of the easement of way which the plaintiffs have established
sugar cane to be grown by the haciendaowners, who in turn bound in their respective haciendas in favor of the defendant, and
themselves to furnish the central with all the cane they might therefore it is important to know the terms in which such easement
produce in their estates for thirty years from the execution of the of way was established.
contract, all in accordance with the conditions specified therein.
In the contract executed by the plaintiff Valderrama with the
Later on, the defendant North Negros Sugar Co., Inc., acquired the defendant on January 29, 1919, there appears: "6th. That in order
rights and interest of Miguel J. Osorio in the milling contract to have the obligations herein entered into by Mr. Valderrama duly
aforesaid. registered, in regard to the rural estates belonging to him and
which are described hereinafter, an easement of way 7 meter wide
and for the period of 50 years from the date hereof is hereby
Two years thereafter, that is to say, on January 29, 1919 Catalino
created in favor of the 'North Negros Sugar Co., Inc., ' upon his
Valderrama (case No. 23810) and on February 1st of the same
property hereinafter described, at such place as said corporation
year, Emilio Rodriguez (case No. 23811) and Santos Urra, Ignacio
may see fit for the construction of a railroad."
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 And in the contract of the plaintiff Rodriguez of February 1, 1919,
conditions which are specified in detail in the aforesaid documents there also appears" "6th. That in order to have the obligations
Exhibit A and 1. Santos Urra thereafter transferred to Pedro herein entered into by Mr. Emilio Rodriguez duly registered, in
Auzmendi, and the latter to Lorenzo Echarri, their interest in the regard to the rural estates belongings to him which are herein
milling contract executed by them. 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.,'
In view of the fact that the hacienda owners, who were up to that
upon his estate aforementioned, at such place as said corporation
time customers of the central, could not furnish sufficient cane for
may see fit for the construction of a railroad."
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 And lastly in the contract of Santos Urra and others of February 1,
sustain the central; and this gave rise to the plaintiffs filing their 1919, there likewise appears: "7th. That in order to have the
complaint, alleging that the easement of way, which each of them obligations herein entered into by Santos Urra, Ignacio Benito
has established in his respective hacienda, was only for the Huarte, Adolfo Huarte and Pedro Auzmendi duly registered in
transportation through each hacienda of the sugar cane of the regard to their estate hereinafter described, an easement of way 7
owner thereof, while the defendant maintains that it had the right to meters wide and for the period of 50 years from the date hereof is
transport to its central upon the railroad passing through hereby established in favor of the 'North Negros Sugar Co., Inc.,'
the haciendas of the plaintiffs, not only the sugar cane harvested in upon their estate hereinafter described, at such place as said
said haciendas, but also that of the hacienda owners of Cadiz, corporation may see fit for the construction of a
Occidental Negros. railroad."lawphi1.net

The plaintiffs, in separate complaints, prayed the Court of First As may be seen, the question raided depends upon the
Instance of Occidental Negros to pronounce judgment, holding that interpretation to be given to the clause of the contracts of the
the defendant had no right, under the easement or otherwise, to plaintiffs above quoted. The plaintiffs allege that the aforesaid
cause its locomotives and wagons to run across the estates of the clause is ambiguous, and under the first exception of section 285 of
plaintiffs for the purpose of transporting sugar cane of any the Code of Civil Procedure, they have the right to introduce
agriculturist of Cadiz, Occidental Negros. extraneous evidence to explain the true intent of the parties. And it
is ambiguous, according to them, because it may applied to the
transportation of the cane of the plaintiffs or other producers,
The defendant answered the amended complaints, admitting some
which is contrary to the intent of the contracting parties. If the
allegations thereof and denying others. And as special defense, it
above quoted clause is ambiguous, the plaintiffs have the right to
alleged that the plaintiffs respectively granted the defendant, for
introduce circumstantial evidence to explain the true intent of the
the period of fifty years from the date of the aforesaid contracts, an
parties, but it our opinion said clause is clear enough in its terms to
easement of way 7 meters wide upon the lands of the plaintiffs for
express what the parties have intended to agree upon. Had the
the construction and operation of a railroad for the transportation
clause mentioned only an "easement of way," there might be a happens when the defendant transport on the railroad, crossing the
doubt as to whether or not the easement of way is for pedestrians, servient estates, the cane of the planters of Cadiz; the railroad
horsemen or carriages. But when the clause says: "easement of continues to occupy the same area on the servient estates, and the
way 7 meters wide for the period of 50 years for the construction incumbrance resulting from the easement continues to be the same,
of the railroad," there can be no doubt about what the contracting whether the tractors traverse the line 10, 20 or 30 times a day
parties have agreed upon, to wit, that the plaintiffs have created transporting cane for the central.lawphi1.net
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
Furthermore, the record shows a circumstance indicating that at the
enable the defendant to build and maintain a railroad for the
time of the execution of the milling contracts above referred to,
transportation of sugar cane to the central. It is clear that the cane
there was no intention of the part of the contracting parties to limit
of the plaintiffs was to be transported upon the railroad to the
the use of the railroad to the transportation of cane grown by the
central; but to limit the use of the road exclusively to the cane of
plaintiffs in their respective haciendas, and that is because, while
the plaintiffs and within their respective haciendas would make the
the duration of the milling contracts is fixed at thirty years, that of
contract in question ineffective, except as to the haciendawhich is
the easement is at fifty. So that if at the end of thirty years the
contiguous or nearest to the central.
plaintiffs or their successors should no longer desire to furnish
canes for milling in the central of the defendant, the latter shall still
The object of such a milling contract, from which arises the have the right to the easement for the remaining period, but
easement in question, is undoubtedly to obtain mutual benefit to without transporting on the railroad any cane for the central. An
the procedures of sugar cane and the corporation putting up the interpretation of the clause in question leading to such a result is
central. It is only by taking this principal idea into account that it untenable.
may be conceived why the parties had come to an agreement to
assume such obligation as are set forth in the milling contract. But
For the foregoing, we are of the opinion that the trial court erred in
the contract could not produce any benefit to the parties, if the
finding that the appellant could not transport on its railroad passing
explanation given by the plaintiffs would be admitted, as to their
through the haciendas of the appellees, where it has an easement of
intention in creating the aforesaid easement of way upon their
way established in its favor, the cane grown in the haciendas of the
respective haciendas, that it was only in favor of their
procedures of Cadiz, Occidental Negros, to be milled in the central
respective haciendas. Such an explanation is inadmissible because
of the appellant. And, therefore, the judgment appealed from must
it is contrary to the object of the milling contract.
be reversed and the appellant absolved, as it is hereby absolved,
from the complaint, without special pronouncement as to costs. So
It is against the nature of the easement to pretend that it was ordered.
established in favor of the servient estates, because it is a well
settled rule that things serve their owner by reason of ownership
G.R. No. L-6629             September 30, 1954
and not by reason of easement.

EUFROCINA HIDALGO CABACUNGAN, AURELIA

This is a case of an easement for the benefit of a corporation,
HIDALGO ROLDAN, and TERESA HIDALGO
voluntarily created by the plaintiffs upon their respective estates
IGLESIAS,plaintiffs-appellants, 
for the construction of a railroad connecting said estates with the
vs.
central of the defendant. Once the road is constructed, the
QUINTIN CORRALES and CATALINA V
easement is apparent because it is continuously exposed to view by
.CORRALES, defendants-appellees.
the rails which reveal the use and enjoyment of said easement. It is
evident, as above stated, that the cane of the plaintiffs if to be
transported to the central by means of wagons passing upon the Constante R. Ayson for appellants.
railroad; but as the easement was created for the benefit of the Federico S. Tecson and Manuel D. Villanueva for appellees.
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
REYES, A., J.:
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 This is an appeal from an order of the Court of First Instance of
central, prohibiting it to obtain from another source sufficient cane Ilocos Sur dismissing appellants' complaint.
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 The complaint sets up three causes of action, but for allegedly not
planters, and obtain in that way all cane necessary to cover the pleading facts sufficient to support any of them, the court ordered
capacity of the central. it dismissed on defendants' motion before answer.

Another reason advanced by the appellees in support of their 1. For its first cause of action, the complaint alleges in effect that
theory is that by transporting upon the road, through the servient plaintiffs, now appellants, are sisters and, together with three other
estates, the cane of the planters of Cadiz, it would alter the sisters, "co-heirs and co-owners" of a piece of land therein
easement, making it more burdensome. It is true that the owner of described; that having been notified on September 6, 1952, that
the dominant estate, in making on the servient estate the necessary two of their sisters, co-heirs and co-owners - Sofia Hidalgo Soria
works for the use and preservation of the easement, cannot alter it, and Carmen Soria Abad - had sold their undivided shares in said
nor make it more burdensome (art. 543 of the Civil Code); but this land to defendant Quintin Corrales, an outsider, and wishing to be
does not mean that the defendant cannot transport in the wagons subrogated to the rights of the buyer in accordance with article
passing upon the railroad other cane that of the plaintiffs. What is 1088 of the New Civil Code, plaintiffs, on the 10th of the same
prohibited by the legal provision above cited is that the defendant, month, approached the said Quintin Corrales and his wife and co-
in excavations or building materials outside of the area of 7 meters, defendant Catalina V. Corrales and rendered them P600 for that
because in the first case, the easement will be altered, and in the purpose, but the tender was refused. Plaintiffs, therefore, pray that
second it would become more burdensome. But nothing of the kind defendants be ordered to allow them to exercise their right of legal
redemption. Considering the case to be one of redemption among merged in the same person for the purposes of the article cited.
co-owners under article 1620 in connection with article 1623 of the Thus, commenting on the corresponding article of the Spanish
New Civil Code and not that of redemption among co-heirs under Civil Code (Art. 546), Manresa observes that under that article the
article 1088 thereof, the lower court held the complaint insufficient easement is not extinguished by the acquisition of a share in
for not containing "any allegation respecting the existence of any property held in common. He says:1âwphïl.nêt
notice in writing by the vendor or vendee of the date of such notice
if any" and "any allegation to show if the deeds of sale in favor of
(c) La adquisicion de una parte proindiviso del
the defendants were registered in the Registry of Property and if
dominio. En este caso no se adquiere la propiedad plena
there were any affidavit of the vendor or vendors to the effect that
indispensable para la extincion de la servidumbre, sino
such vendor or vendors have given written notice of the sale or
una fraccion, porque el dominio se halla representado
purchase to all possible redemptioners or in this case to the
por todos los comuneros y no por uno solo. Ademas, no
plaintiffs." We note, however, that the complaint does allege that
se reune propiamente el dominion en una sola persona,
plaintiffs were, on September 6, 1952, notified of the sale and that
segun exige al numero 1.o del articulo 546. Asi en el
on the 10th of that month they made their offer to redeem. If
predio o en la servidumbre o al predio que se posee
information was desired whether the notice was in writing or that
proindiviso, existe un derecho abstracto, indeterminado,
the sale was recorded in the registry of property and there was an
mientras que respecto a la servidumbre o al predio que
affidavit of the vendors that written notice of the sale had been
se posee por entero existe un derechoi determinado y
given to plaintiffs, the complaint could have been ordered amended
especial. Asi tambien, el dueño del predio dominante,
to include those particulars.
participe proindiviso del sirviente, puede oponerse a
todo acto acordado por los comuneros que tienda a
Defendants have, indeed, annexed to their motion to dismiss an perjudicar la servidumbre, y el dueño del predio
affidavit to the effect that written notice of the sale was given to sirviente, participe proindiviso del dominante, no
the other co-owners on February 25, 1952, which, if true, might, in puede, por su sola voluntad, perjudicar ni menos
the absence of other circumstances, make plaintiff's offer to extinguir el derecho que, no a el, sino a todos los
redeem on February 6 out of time. But whether the notice of the comuneros corresponde. (IV Manresa, 6th ed., pp. 706-
sale was given on February 25, as stated in the affidavit, or on 707.)
September 6, as stated in the complaint, was a question of fact
which could best be determined after trial on the merits or in a
And as to the matter of drainage, Article 674 of the New Civil
motion for summary judgment and not in a mere motion to
Code specifically provides "that the owner of a building shall be
dismiss, as this hypothetically admits the allegations of the
obliged to construct its roof or covering in such a manner that the
complaint. Moreover, the affidavit mentioned refers only to the
rain water shall fall on his own land or on a street or public place,
share of Sofia Hidalgo Soria and says nothing of the share of her
and not on the land of his neighbor, even though the adjacent land
sister Carmen Soria Abad as to which there is nothing said therein
may belong to two or more persons, one of whom is the owner of
to contradict plaintiffs' allegation that notice of sale was given on
the proof." (Emphasis supplied.)
September 6.

In view of the foregoing, the order of dismissal is affirmed as to

It is, therefore, our view that the complaint should not have been
the second cause of action, but revoked with respect to the first and
dismissed as to the first cause of action.
third causes of action, as to which the case is ordered remanded to
the court below for further proceedings. Costs against the
2. The second cause of action is for moral damages alleged to have appellees.
been suffered by plaintiffs on account of their arrest and
incarceration by reason of a false and malicious complaint filed
G.R. No. L-22733             September 25, 1968
against them in the Justice of the Peace Court of Narvacan by
Catalina V. Corrales, one of the herein defendants, charging them
with the crime of malicious mischief. But there is no allegation that SALVADOR BENEDICTO (deceased). ROBERTO S.
plaintiffs have been acquitted. Indeed, it would appear from a BENEDICTO, petitioner, 
certified copy of docket entries referring to the case that the same vs.
is still pending trial. Obviously, plaintiffs' second cause of action COURT OF APPEALS and VICENTE A.
has not yet accrued. The complaint hat cause was, therefore, HERAS, respondents.
property dismissed as premature.
San Juan, Africa & Benedicto for petitioner.
3. For a third cause of action, the complaint alleges that in January, Luis A. Dayot for respondents.
1950, defendants, being owners of a lot contiguous to the land here
in question, constructed a building on said lot with balcony and
windows less than three meters distant from said land and with
roof that drains rain water into it in violation of Article 670 and
674, respectively, of the New Civil Code. Plaintiffs, therefore, pray
that the said balcony and windows be ordered closed and the roofs
CASTRO, J.:
constructed in such a way that rain water would not fall on
plaintiffs' land. Taking the view that, with the acquisition by
defendants of a share in the land in question, the easement of light, This case which orginated in the Court of First Instance of Manila
view and drainage was extinguished "by merger in the same person was an action by the respondent Vicente A. Heras to recover a
of the ownership of dominant and servant estates" pursuant to portion of land enclosed and walled by the petitioner Salvador
Article 631 of the New Civil Code, the lower court ruled out this Benedicto, and to demand the reopening of an easement of way
cause of action. This view if patently erroneous. As defendants between his real property and that of the petitioner.
have not become sole owners of the servient estate, for they have
acquired only a part interest therein, it cannot be said that in this
case ownership of the dominant and servient estates has been The facts, in the language of the stipulation of the parties, are:
1. The adjoining properties of the plaintiff [Heras] and "SEPTIMO. Que en vista de la forma irregular del
the defendant [Benedicto] formerly belonged to one inmueble descrito en el Certificado de Titulo aludido en
owner, MIRIAM R. HEDRICK, consisting of Lots Nos. el parrafo PRIMERO de esta escritura, ambas partes
8, 9, 10, 22, 23, and 24 of Survey Plan RS-219, G. L. R. convienen en practicar una nueva medicion de dicho
O. Record No. 662, as surveyed for Henry M. Jones, et inmueble con el fin de que la linea divisoria entre la
al. on June 26, 1912 by C. R. Maris, Bureau of Lands porcion vendida por la presente a Claro M. Recto y la
Surveryor and appproved by the Director of Lands on que queda en el dominio de Miriam R. Hedrick caiga en
July 20, 1912, containing an area of 1307.3 sq. mts. medio del paso descrito y aludido en el parrafo anterior,
covered by TCT No. 3623 of the Registry of Deeds of y dicha linea sera perpendicular a la calle San
the City of Manila, whose technical description as set Marcelino."
forth in said TCT No. 3623 is hereto attached as Annex
"A".
This agreement of the parties, MIRIAM R. HEDRICK
and CLARO M. RECTO, is annotated on the respective
2. On Septebmer 29, 1917, the said MIRIAM R. titles of the plaintiff and the defendant, copies of which
HEDRICK sold a portion of the above described annotations are hereto attached and made parts hereof
property, particularly Lots Nos. 8, 9, 22 and 23 to as Annex "D" (Annotation on plaintiff's title, TCT. No.
CLARO M. RECTO, and retained for herself Lots Nos. 62769) and Annex "E" (Annotation on defendant's title,
10 and 24. A copy of the Escritura de Compra-Venta in TCT No. 45990).
favor of Claro M. Recto is attached hereto and made a
part hereof as Annex "B".
5. By virtue of said Escritura de Compra-Venta (annex
"B") but before the new survey mentioned in "parrafo
3. At the time of the sale, the following buildings were septimo" thereof was undertaken, CLARO M. RECTO
located on the respective properties of Claro M. Recto obtained a separate title, TCT. No. 7755 issued on
and Miriam R. Hedrick as described in the Escritura de October 2, 1917, a copy of the technical description of
Compra-Venta (annex "B"), to wit: which is hereto attached and made part hereof as Annex
"F".
"SEGUNDO. Que sobre las parcelas 2a
(Lote No. 9) y 3a (Lote No. 10) se hallan 6. In order to carry out said "parrafo septimo" of
levantados dos edificios (Chalets) de igual theEscritura de Compra-Venta (Annex "B") regarding
estructura, extencion configuracion y the new survey of the properties to fix the dividing line
volumen, construidos ambos de concreto y between the properties of CLARO M. RECTO and
otras materiales fuertes, y sobre las parcelas MIRIAM R. HEDRICK, the said Claro M. Recto filed a
5a (Lote No. 23) y 6a (Lote No. 24), las Motion dated July 19, 1920, a copy of which motion is
respectivas dependencias de dichos hereto attached and made a part hereof asAnnex "G". In
dedificios." a letter dated December 21, 1920, a copy of which is
hereto attached and made thereof as Annex "H".
CLARO M. RECTO wrote to a certain MARCIAL
For the purpose of showing the respective locations of
ZAMORAof the General Land Registration Office
said buildings, a photostatic copy of Sheet No. 2 of the
asking for the issuance of a new title in his favor in
Cadastral Plan of the Manila Cadastral Survey, Case
accordance with the new plan submitted by him (Annex
No. 59, is hereto attached and made part hereof as
"J" of this Stipulation). The said Motion of July 19,
Annex "C". This Cadastra lPlan (Annex "C") was made
1920 was amended on September 30, 1921, as per copy
on August 25, 1921 (subsequent to the sale of the
of the Amended Motion hereto attached and made part
property to Claro M. Recto and subsequent to the
hereof as Annex "I", in the Court of Land Registration
issuance of the separate title TCT No. 7755 to Claro
of Manila, Record No. 662, for the issuance of a new
M.Recto, which is mentioned in paragraph 5 of this
title for his property based on the new survey, the
Stipulation).
amendment consisting of the addition of a paragraph
which reads as follows:
4. The sale to CLARO M. RECTO as evidenced by
theEscritura de Compra-Venta (Annex "B") was
"Que el compareciente no reclama las
subject, among others, to the following conditions:
porciones Lote 9b y Lote 23b del referido
plano S.W.O. 3753, sino solamente las
"SEXTO. Que entre la porcion vendida a Claro M. porciones Lotes A, B, C, y D."
Recto y la que queda en poder de Miriam R. Hedrick,
hay un paso para vehiculos, de unos tres a cuatro
The said Motion and Amended Motion were
metros de anchura proximamente constituido por mitad
accompanied with Exhibit "A" (of said motions), a
o iguales partes sobre cada una de dichas porciones, y
copy of the Escritura de Compra-Venta, which is
ambas partes de esta escritura se obligan cada una a
Annex "B" of this Stipulation; Exhibit "B" (of said
respetar el derecho de la otra a usar de toda la extencion
motions), the re-survey plan above-mentioned and
de dicho paso para todo el tiempo y todas las
approved by the Director of Lands, a certified copy of
necesidades de cada una de las dos propriedades, la
which re-survey plan is hereto attached and made part
vendida por la presente a Claro M. Recto y la que queda
hereof as Annex "J"; and Exhibit "G" (of said motions),
en poder de Miriam R. Hedrick, siendo obligatorio este
the technical descriptions of the lots covered in the
pacto para todos los que con posterioridad adquirieran
above-said re-survey plan (Annex "J" of this
por cualquier titulo las fincas mencionadas.
Stipulation), a certified copy of which is hereto attached
and made part hereof as Annex "K". On October 20,
1921, said Claro M. Recto received a letter from the
General Land Registration Office, a certified copy of a. Sold by MIRIAM R. HEDRICK to
which is hereto attached and made part hereof as Annex CHOW KWO HSIEN, TCT No. 22760 was
"L". Before said Motion and Amended Motion were cancelled by TCT No. 22766 dated
acted upon, Claro M. Recto filed a Motion to Withdraw September 23, 1924.
the Motions of July 19, 1920 and September 30, 1921,
dated January 30, 1922, on the ground that it appeared
b. Sold by CHOW KWO HSIEN to
"from the report submitted to this Court by the Chief
GENERAL SECURITY AND
Surveyor of the General Land Registration Office that
INVESTMENT CO., TCT No. 22766 was
the plan S.W.O. 3753 attached to the motions of the
cancelled by TCT No. 49798 dated August
undersigned of July 19, 1920, and September 30, 1921,
26, 1936.
does not agree with the terms of the instrument of date
of September 21, 1917,and that Transfer Certificate of
Title No. 7755 in the name of the undersigned is in c. Sold by GENERAL SECURITY AND
accord with the terms of said instrument." A copy of the INVESTMENT CO. to VICENTE A.
Report of the Chief Surveyor of the General Land HERAS (the herein plaintiff), TCT No.
Registration Office referred to in said motion to 49798 was cancelled by TCT No. 62769
withdraw and a copy of the said motion to withdraw are dated September 19, 1941. A copy of the
hereto attached and made parts hereof as Annexes "M" technical description appearing on said TCT
and "N". The Court issued an Order dated January 31, No. 62769 which is the present title of the
1922, a copy of which is hereto attached and made part plaintiff, is hereto attached and made part
hereof as Annex "O", granting the withdrawal of the hereof as Annex "R", and the Relocation
motions dated July 19, 1920 and September 30, 1921. Plan thereof, S.W.O. 39343, approved by
the Assistant Director of Lands on April 19,
1955, is hereto attached and made part
7. The property purchased by CLARO M. RECTO from
hereof as Annex "S".
MIRIAM R. HEDRICK became the subject of a series
of transfers, to wit:
10. Sometime in 1941, the plaintiff [Heras] demolished
the entire building situated on his property.
a. Sold by CLARO M. RECTO to
EMMANUEL CONTY, TCT No. 7755 was
cancelled by TCT No. 31334 dated The trial court found that after selling Lots 8, 9, 22 and 23 (with an
September 1, 1928. area of 766.90 square meters), Miriam R. Hedrick obtained a
separate title for the remaining Lots 10 and 24. The total area of
these two lots was 540.4 square meters only [together with those
b. Sold by EMMANUEL CONTY TO
sold to Claro M. Recto the two lots formed one parcel with an area
SALVADOR BENEDICTO (the herein
of 1,307.3 square meters covered by TCT 3623], but in the new
defendant), TCT No. 31334 was cancelled
title (TCT 22760) issued to Hedrick, their total area was made to
by TCT No. 45990 dated December 1,1934.
appear to be 681.30 square meters. The increase in area was due to
A copy of the technical description
the fact that the technical description used in the new title was
appearing on said TCT No. 45990, whch is
based on a cadastral survey. Since the respondent Heras, as
the present transfer certificate of title of the
successor-in-interest of Miriam R. Hedrick, owned no more than
defendant, is hereto attached and made part
540.4 square meters, the court held that no portion of his property
hereof as Annex "P", and the Survey Plan
had been encroached upon by the petitioner Benedicto.
thereof as plotted by the G.L.R.O. in
accordance with the technical description
(Annex "P") is hereto attached and made The trial court likewise found that the easement of way was found
part hereof as Annex "Q". entirely within the property of Benedicto, contrary to the
stipulation in the deed of sale between Miriam R. Hedrick and
Claro M. Recto that it should be between their properties, with
8. MIRIAM R. HEDRICK, as owner of the remaining
each contributing an equal portion of his property. According to
lots Nos. 10 and 24 of Survey Plan No. RS-219,
the court, this was the reason why Recto, Benedicto's predecessor-
subsequently obtained a new and separate title, TCT
in-interest, who had earlier asked for a resurvey in accordance with
No. 22760 dated September 20, 1924, whose technical
the deed of sale, subsequently withdrew his motion, after finding
description is based on the Cadastral Survey made from
that the passageway was located entirely within his property.
January 20, to July 12, 1919, wherein both Lots Nos. 10
and 24 of Survey Plan RS-219 were consolidated and
designated as Lot No. 12 of Block No. 372 of the Accordingly, the court directed both parties to contribute equally to
Cadastral Survey of Manila. The technical description the maintenance of a three to four-meter-wide passageway between
and areaof said Lot No. 12 based on the Cadastral their properties, with the property line running at the middle of the
Survey are different from the technical description and passageway. It rejected Benedicto's claim that the easement had
area of Lots Nos. 10 and 24 of Survey Plan RS-219, been extinguished by nonuser and by the cessation of the necessity
and likewise, Lots Nos. 8, 9, 22, and 23 of Survey Plan for a passageway.
RS-219 were consolidated and designated as Lot No. 11
of Block No. 372 of the Cadastral Survey of Manila
Both parties appealed to the Court of Appeals. Salvador Benedicto,
with a different area and technical description.
who in the meantime died, was substituted by the judicial
administrator of his estate, Roberto S. Benedicto.On February 29,
9. The property of MIRIAM R. HEDRICK covered by 1964 the Court of Appeals rendered a decision affirming in toto the
TCT No. 22760, as above-stated, became the subject of decision of the trial court, and on April 3, 1964 it denied the
a seriesof transfers, to wit: motions for reconsideration filed by the parties.
The petitioner Benedicto seeks a review of the decision of the land after the demolition of his house in 1941, and that although
Court of Appeals. 1 According to him, the easement was originally interrupted by World War II, construction was continued in 1955.
constituted because the buildings then erected on the respective Since it is patent from the stipuation of facts that the easement in
properties of Miriam R. Hedrick and Claro M. Recto so adjoined question is mainly a vehicular passageway, the obvious need for
each other that the only way the back portions of the properties such passageway to the rear portion of the projected apartment
could be reached by their owners from San Marcelino street was building negates any presumptive renunciation on the part of
through the passageway. He claims that when the respondent Heras Heras.
had his building demolished in 1941 the property gained direct
access to San Marcelino street with the result that since then there
Moreover, the easement in this case is perpetual in character ("para
has been no need for the passageway. The petitioner argues further
todo el tiempo y todas las necesidades de cada una de las dos
that it could be assumed that since 1941 the passageway ceased to
propriedades, la vendida por la presente a Claro M. Recto y la que
be used "for certainly [the respondent] could not be expected to be
queda en poder de Miriam R. Hedrick, siendo obligatorio este
making 'detours' to reach San Marcelino Street when the very
pacto para todos los que con posterioridad adquirieran por
frontage of his property was now open in its entirety to San
cualquier titulo las fincas mencionadas") and was annotated on all
Marcelino Street."
the transfer certificates of title issued in the series of transfers from
Miriam R. Hedrick through to the respondent Heras, and in the
Article 631 of the Civil Code provides in part: transfer certificates of title issued in the series of transfers from
Claro M. Recto through to the petitioner Benedicto. Since there is
nothing in the record that would point to a mutual agreement
Art. 631. Easments are extinguished:
between any of the predecessors-in-interest not between the
petitioner and the respondent themselves with respect to the
xxx     xxx     xxx discontinuance or obliteration of the easement annotated on the
titles, the continued existence of the easement must be upheld and
respected.
(2) By nonuser for ten years, with respect to
discontinuous easements, this period shall be computed
from the day on which they ceased to be used; and, with The fact that the easement here is one of necessity does not detract
respect to continuous easements, from the day on which from the conclusion we have reached. For even assuming that with
an act contrary to the same took place; the demolition of the house on Heras' property the necessity for the
passageway ceased (a point traversed by Heras who claims that he
demolished his house precisely in order to build an apartment
(3) When either or both of the estates fall into such building in its place), still, as was held in one case  2 "the fact that an
condition that the easement cannot be used; but it shall easement [by grant] may have also qualified as an easement of
revive if the subsequent condition of the estates or necessity does not detract from its permanency as a property right,
either of them should again permit its use, unless when which survives the termination of the necessity." Indeed, when the
the use becomes possible, sufficient time for easement in this case was established, the parties unequivocally
prescription has elapsed, in accordance with the made provisions for its observance by all who in the future might
provisions of the preceding number; . . . . succeed them in dominion, and this is the reason the permanent
character of the easement was annotated on each and all of the
This provision was taken from article 546 of the Civil Code of transfer certificates of title.1awphîl.nèt
1889, with the modification that the period of nonuser was reduced
from 20 to 10 years.1awphîl.nèt ACCORDINGLY, the decision appealed from is affirmed, at
petitioner's cost.
The petitioner argues at length that this case is governed by the
present Code, and that since 14 years had elapsed from the time the G.R. No. L-66520 August 30, 1988
building on Heras' property was demolished in 1941 to 1955 when
this action was begun (during which period he assumed that the
passageway ceased to be used because Heras' property had direct EDUARDO C. TAÑEDO, petitioner, 
access to the street), the easement must be deemed to have been vs.
extinguished. HON. JUANITO A. BERNAD, Presiding Judge of the
Regional Trial Court, 7th Judicial Region, Branch XXI, Cebu
City; Spouses ROMEO SIM and PACITA S. SIM; and
For the purposes of this decision we do not find it necessary to Spouses ANTONIO CARDENAS and MAE LINDA
determine whether the appropriate period of nonuser in this case is CARDENAS, respondents.
20 or 10 years. For one thing, there is no indubitable proof of
nonuser. The petitioner merely assumes that the passageway in
question had not been in use since 1941 because the property of Numeriano F. Capangpangan for petitioner.
Heras has since gained direct access to San Marcelino street with
the demolitionof his house. For another, even if we assume that the
Meinrado P. Parades for private respondents.
period of prescription based on nonuser is 10 years, the very
testimony of the petitioner Benedicto shows that it was only in
1946 that he had the passageway walled in by constructing a fence,
and since the present action was filed in 1955, granting that article
631 of the Civil Code is applicable, the prescriptive period has not
PADILLA, J.:
yet elapsed.

This is a petition for review on certiorari of the Order issued by the

Nor can presumptive renunciation by Heras of the use of the said
respondent judge, Hon. Juanita A. Bernad on 5 December 1983,
passageway be inferred. It would appear from the record that Heras
which dismissed the complaint for legal redemption filed by the
started the construction of an apartment building on his parcel of
petitioner in Civil Case No. CEB-994 of the Regional Trial Court
of Cebu, and the Order of the same respondent judge, dated 20 In answer to the cross-claim, the spouses Romeo and Pacita Sim
January 1984, which denied petitioner's motion for insisted that the sale executed by Antonio Cardenas of Lot 7501-B
reconsideration. in their favor was an absolute one. 8

The facts, in brief, are as follows: Thereafter, or on 14 October 1983, the spouses Romeo and Pacita
Sim filed motions to dismiss the complaint and the cross-claim, for
lack of cause of action. 9
The private respondent Antonio Cardenas was the owner of two (2)
contiguous parcels of land situated in Cebu City which he had
inherited from Lourdes Cardenas and more particularly known as Acting upon these motions and other incidental motions, the
Lot 7501-A, with an area of 140 square meters and Lot 7501-B, respondent judge issued the questioned order of 5 December 1983
with an area of 612 square meters. On Lot 7501-A is constructed dismissing the complaint and cross-claim.10
an apartment building, while the improvements on Lot 7501-B
consist of one four-door apartment of concrete and strong
Tañedo filed a motion for reconsideration of the order, but his
materials; one two-storey house of strong materials; a bodega of
motion was denied on 20 January 1984. 11
strong materials; and a septic tank for the common use of the
occupants of Lots 7501-A and 7501-B. A small portion of the
apartment building on Lot 7501-A also stands on Lot 7501-B. Hence, the present recourse by petitioner Tanedo.

On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to The Court finds merit in the petition. The dismissal of the
herein petitioner Eduardo C. Tañedo. 1 complaint on the ground of lack of cause of action, is precipitate.
The settled rule where dismissal of an action is sought on the
ground that the complaint does not state a cause of action is, that
Antonio Cardenas, on that same day, also mortgaged Lot 7501-B
the insufficiency of the cause of action must appear on the face of
to said Eduardo C. Tañedo as a security for the payment of a loan
the complaint. And the test of the sufficiency of the ultimate facts
in the amount of P10,000.00. 2
alleged in the complaint to constitute a cause of action, is whether
or not, admitting the facts alleged, the court can render a valid
Antonio Cardenas further agreed that he would sell Lot 7501-B judgment upon the same in accordance with the prayer of the
only to Eduardo Tañedo in case he should decide to sell it, as the complaint. For this purpose, the movant is deemed to admit
septic tank in Lot 7501-B services Lot 7501-A and the apartment hypothetically the truth of the facts thus averred. 12
building on Lot 7501-A has a part standing on Lot 7501-B. This
was confirmed in a letter, dated 26 February 1982, wherein
In the instant case, it cannot be denied that petitioner Tanedo
Antonio Cardenas asked Tañedo not to deduct the mortgage loan
cannot redeem the entire Lot 7501-B from the spouses Romeo and
of P10,000.00 from the purchase price of Lot 7501-A "because as
Pacita Sim pursuant to the provisions of Art. 1622 Romeo and
we have previously agreed, I will sell to you Lot 7501-B."3
Pacita Sim pursuant to the provisions of Art. 1622 of the Civil
Code, since the lot sought to be redeemed, has an area of 612
Antonio Cardenas, however, sold Lot 7501-B to the herein square meters which is much bigger, area-wise, than the lot owned
respondent spouses Romeo and Pacita Sim. 4 Upon learning of the by petitioner Tañedo. However, the petitioner seeks to purchase
sale, Eduardo Tañedo offered to redeem the property from Romeo only that small portion of Lot 7501-B occupied by his apartment
Sim. But the latter refused. Instead, Romeo Sim blocked the building, because the spouses Romeo and Pacita Sim had told him
sewage pipe connecting the building of Eduardo Tañedo built on to remove that portion of his building which enroaches upon Lot
Lot 7501-A, to the septic tank in Lot 7501-B. He also asked 7501-B. Whether or not this is possible should have been
Tañedo to remove that portion of his building enroaching on Lot determined at the pre-trial stage or trial on the merits.
7501-B. As a result, Eduardo Tañedo, invoking the provisions of
Art. 1622 of the Civil Code, filed an action for legal redemption
Besides, the action of petitioner Tañedo is also one for recovery of
and damages, with a prayer for the issuance of a writ of
damages by reason of breach of promise by the respondent
preliminary injunction, before the Regional Trial Court of Cebu,
Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the
docketed therein as Civil Case No. CEB-994, against the spouses
amended complaint read, as follows:
Romeo and Pacita Sim, Antonio Cardenas and his wife Mae Linda
Cardenas, the Register of Deeds of Cebu City, and Banco
Cebuano, Cebu City Development Bank. 5 3. That by written agreement, plaintiff and
defendant spouses Antonio Cardenas and
Mae Linda Cardenas agreed that in the event
Answering, the spouses Romeo and Pacita Sim claimed that they
they decide to sell the adjacent Lot No.
are the absolute owners of Lot 7501-B and that Eduardo Tañedo
7501-B of the subdivision plan (LRC) Psd.
has no right to redeem the land under Art. 1622 of the Civil Code
23638, a portion of Lot No. 7501 of the
as the land sought to be redeemed is much bigger than the land
cadastral survey of Cebu, LRC (GLRC)
owned by Tañedo. 6
Cad. Record No. 9465, situated in the City
of Cebu, containing an area of SIX
Antonio Cardenas, upon the other hand, admitted that he had HUNDRED TWELVE (612) Square meters
agreed to sell Lot 7501-B to Eduardo Tañedo and claimed by way more or less which lot is adjacent to Lot No.
of cross-claim against the spouses Romeo and Pacita Sim that the 7501-A of the plaintiff and where part of the
Deed of Sale he had executed in favor of said spouses was only plaintiffs apartment is standing on, the same
intended as an equitable mortgage, to secure the payment of should be sold  to the plaintiff, but far from
amounts received by him from said spouses as petty loans . 7 compliance of the written agreement,
defendant spouses Antonio Cardenas and
Mae Linda Cardenas sureptiously[sic] sold
the aforestated Lot No. -7501-B- to the
defendant spouses, Romeo Sim and Pacita
 Sim on July 23, 1982 as per Deed of Sale (2) By non-user for ten years; with respect to
notarized by Notary Public, Jorge S. Omega discontinuous easements, this period shall
and entered in his Notarial Register as Doc. be computed from the day on which they
No. 462; Page No. -94- Book No. 11, Series ceased to be used; and, with respect to
of 1982; continuous easements, from the day on
which an act contrary to the same took
place;
4. That due to the sale by the defendant
spouses Antonio Cardenas and Mae Linda
Cardenas of the property in question to (3) When either or both of the estates fall
spouses Romeo Sim and Pacita Lim, into such condition that the easement cannot
plaintiff suffered moral damages in the be used; but it shall revive if the subsequent
form of mental anguish, sleepless nights, condition of the estates or either of them
mental torture, for which he is entitled to a should again permit its use, unless when the
compensation in the amount to use becomes possible, sufficient time for
be established during the trial of the case prescription has elapsed, in accordance with
and has incurred litigation expenses  subject the provisions of the preceding number;
for reimbursentent and attorneys fee in the
sum of P10,000.00 which should be
(4) By the expiration of the term or the
chargeable to both defendant spouses;13
fulfillment of the conditions, if the easement
is temporary or conditional;
and the plaintiff (herein petitioner) prayed, among others: "(c) That
defendant spouses Romeo Sim and Pacita Sim and spouses
(5) By the renunciation of the owner of the
Antonio Cardenas and Mae Linda Cardenas be ordered to pay
dominant estate;
plaintiff moral damages, litigation expenses and attorneys fees in
the amount of P50,000.00." 14
(6) By the redemption agreed upon between
the owners of the dominant and servient
That there was a written agreement, as alleged in the complaint,
estates.
between the plaintiff Eduardo Tañedo and the defendant Antonio
Cardenas is admitted by the latter. In his answer, he alleged the
following: As can be seen from the above provisions, the alienation of the
dominant and servient estates to different persons is not one of the
grounds for the extinguishment of an easement. On the contrary,
ALLEGATIONS as to written agreement is
use of the easement is continued by operation of law. Article 624
ADMITTED, but, specifically denies that
of the Civil Code provides:
herein defendants SUREPTIOUSLY [sic]
SOLD the lot in question to the other
defendant Spouses Sim the truth is, that the Art. 624. The existence of an apparent sign
herein defendants [sic] was required to of easement between two estates, established
execute the Deed of Sale described in this or maintained by the owner of both, shall be
paragraph 3 as security for the personal considered, should either of them be
loans and other forms of indebtedness alienated, as a title in order that the
incurred from the Spouses Sims but never as easement may continue actively and
a conveyance to transfer ownership;15 passively, unless, at the time the ownership
of the two estates is divided, the contrary
should be provided in the title of
Considering this admission of defendant Cardenas, and that his
conveyance of either of them, or the sign
promise to sell Lot 7501-B to Eduardo Tañedo appears to be for a
aforesaid should be removed before the
valuable consideration, a trial is necessary to determine, at the very
execution of the deed. This provision shall
least, the amount of damages suffered by the plaintiff Eduardo
also apply in case of the division of a thing
Tafiedo by reason of such breach of promise to sell, if indeed there
owned in common by two or more persons.
is such a breach.

In the instant case, no statement abolishing or extinguishing the

Moreover, the finding of the trial court that petitioner Tañedo's
easement of drainage was mentioned in the deed of sale of Lot
right to continue to use the septic tank, erected on Lot 7501-B,
7501-A to Eduardo Tañedo. Nor did Antonio Cardenas stop the
ceased upon the subdivision of the land and its subsequent sale to
use of the drain pipe and septic tank by the occupants of Lot 7501-
different owners who do not have the same interest,16 also appears
A before he sold said lot to Eduardo Tafiedo. Hence, the use of the
to be contrary to law. Article 631 of the Civil Code enumerates the
septic tank is continued by operation of law. Accordingly, the
grounds for the extinguishment of an easement. Said article
spouses Romeo and Pacita Sim the new owners of the servient
provides:
estate (Lot 7501- B), cannot impair, in any manner whatsoever, the
use of the servitude. 17
Art. 631. Easements are extinguished:
WHEREFORE, the Orders complained of are hereby REVERSED
(1) By merger in the same person of the and SET ASIDE. The respondent judge or another one designated
ownership of the dominant and servient in his place is directed to proceed with the trial of this case on the
estates; merits. With costs against private respondents.

SO ORDERED.
G.R. No. L-27296             October 8, 1927 The plaintiff, answering the counterclaim, denied each and every
one of the allegations therein contained.
INTESTATE ESTATE OF JOSE B. BANZON, 
represented by TRINIDAD GONZALEZ, judicial The preponderance of the probatory facts show that the first canal
administratrix, plaintiff-appellant,  is question, with conduit No. 9, was built in 1905, as part of an
vs. irrigation system for the use of the water of the Talisay River for
MARIANO B. BANZON, ET AL., defendants-appellees. the benefit of the owners of the adjacent lands; that from that time
to the present many landowners have made use of said water
through said system for the watering of their respective lands,
Marciada, Capili and Ocampo for appellant.
including the deceased Jose B. Banzon during his life, and his heirs
Alberto Aquino for appellees.
after his death; that in September, 1918, the defendant Mariano B.
Banzon, with the knowledge and consent of his brother Jose B.
Banzon, and after having applied to the Director of Public Works
for permission to use the water of the Talisay River, opened the
second canal in question, through a place that was most convenient
and least onerous to third parties; that in the plan Exhibit B of the
VILLA-REAL, J.: cadastral survey of the lands of the municipality of Pilar, Province
of Bataan, commenced in 1916, and completed in 1917, there is no
irrigation canal on the land in question; that upon commencement
This is an appeal taken by Trinidad Gonzales, as judicial
of cadastral proceeding No. 164 (G. L. R. O. Record No. 166) of
administratrix of the intestate estate of Jose B. Banzon, from a
the said municipality and province, the deceased Jose B. Banzon
judgment of the Court of First Instance of Bataan absolving the
claimed lot No. 362 as his property and applied for its registration
defendants from the complaint, with the exception of Mariano B.
under the Torrens system; that no opposition was entered to said
Banzon, who was ordered to indemnify the plaintiff in the sum of
claim and application by any one, not even Mariano B. Banzon,
P36.72, with the costs of the action.
nor did he claim to have any easement of aqueduct thereon,
nothwithstanding that the said defendant, Mariano B. Banzon, was
In support of her appeal, appellant assigns five alleged errors as aware of said claim and in fact testified at the hearing; neither does
committed by the trial court in its decision, which we shall the original certificate No. 2502 of Torrens title; issued on January
consider later. 24, 1932, to lot No. 362, in favor of the heirs of Jose B. Banzon,
show the existence of any easement of aqueduct in favor of any
person.
This controversy deals with two irrigation canals crossing a tract of
land belonging to the said intestate estate of Jose B. Banzon.
The plaintiff-appellant argues, in support of the first assignment of
error, that inasmuch as the two canals in question do not appear in
Plaintiff alleges in her complaint that in the month of April, 1919, the original certificate of Torrens title No. 2502 to lot No. 362, said
defendants Mariano B. Banzon, Ursula Banzon and the latter's lot is free of said easements and the defendants have no right to
husband, Alberto Aquino, without her knowledge or consent, continue using them.
opened a canal 1,000 meters long, 2 meters wide, and 2 meters
deep across said land from east to west, for the purpose of drawing
water from the Talisay River to irrigate their lands; that in The pertinent part of section 39 of Act No. 496, as amended by Act
December 1922, the same defendants, without her knowledge or No. 2011, reads as follows:
consent, opened another canal almost parallel to the former, 1,000
meters long, 3 meters wide, and 2 meters deep, on the same land
ART. 39. Todo solicitante que reciba el certificado de
on the north side of the former one, to irrigate said defendants'
titulo expedido por virtud de un decreto de registro, y
lands with water from the aforesaid Talisay River; that in
todo comprador subsiguiente que acepte por causa
consequence of the opening of said canals she has suffered
onerosa y de buena fe un certificado de titulo, goraza de
damages from loss of crops, disintegration and unlevelling of land,
dicho titulo, libre de toda carga y gravamen, con
and therefore prays that the said defendants be ordered to close and
excepcion de los que consten por el certificado y de
refill said canals and to indemnify her for damages.
cualquiera de los que a continuacion se expresan y que
puedan subsistir:
In answer, the defendants denied generally and specifically all the
allegations of the complaint, and set up the special defense that
xxx     xxx     xxx
Jose B. Banzon had aided in the construction of the first canal in
the year 1905, as well as in the maintenance of the same, as an
integral part of an irrigation system connected with conduit No. 9, Tercero. Las carreteras, los caminos publicos o
and that he benefited therefrom during his life; that after Jose B. particulares establecidos por la ley, o los canales de
Banzon's death, his children, together with the plaintiff also reigo y sus ramificaciones, cuando en el certificado del
benefited from the said canal; that the second canal was built by titulo no aparezca que se han determinado sus limites.
defendant Mariano B. Banzon, brother of Jose B. Banzon, with the
knowledge and consent of the latter and his wife; and by way of
Si hubiere derechos de servidumbre u otros
counterclaim the said defendant Mariano B. Banzon alleges that
pertenencientes a una parcela de terreno registrado, que
the second is built in the most convenient and least prejudicial
por cualquier motivo no se hayan inscrito, continuaran
place for third persons, and that there is no other place combining
subsistentes y se considerara que se trasladan con el
these advantages; wherefore, the aforementioned defendants pray
titulo de dominio, hasta que se rescindan o se extingan
that they be absolved from the complaint and that the defendant
por virtud de la inscripcion del predio sirviente, o de
Mariano B. Banzon be awarded the right to maintain and preserve
cualquier otro modo.
the aforesaid second canal, upon paying the proper indemnity.

The English text of the same section reads:

 SEC. 39. Every applicant receiving a certificate of title maintain and preserve a canal similar to the second one mentioned
in pursuance of a decree of registration, and every on plaintiff's land upon payment of the proper indemnity to the
subsequent purchaser of registered land who takes a plaintiff, alleging that the place where said canal passes is the most
certificate of title for value in good faith shall hold the convenient and least onerous to third parties, and that there is no
same free of all incumbrance except those noted on said other place more appropriate and less prejudicial.
certificate, and any of the following incumbrances
which may be subsisting, namely:
The text of article 557 of the Civil Code is as follows:

xxx     xxx     xxx
ART. 557. Any person who wishes to use upon his own
land any water of which he may have the control is
Third. Any public highway, way, private way entitled to take it through the intervening estates,
established by law, or any Government irrigation canal subjects to the obligation of indemnifying the owners
on lateral thereof, where the certificate of title does not thereof, as well as the owners of any lower estates upon
state that the boundaries of such highway, way, or which the water may filter or descend.
irrigation canal or lateral thereof, have been
determined.
The defendant Mariano B. Banzon undoubtedly has a right to a
compulsory easement of aqueduct, upon payment of indemnity,
But if there are easements or other rights appurtenant to since, although he is not the owner of the waters of the Talisay
a parcel of registered land which for any reason have River, he can dispose of 50 liters of the same per second, by virtue
failed to be registered, such easements of right shall of the grant from the Director of Public Works. This may be
remain so appurtenant notwithstanding such failure, and inferred from the provision of article 125 of the Law of Waters of
shall be held to pass with the land until cut off or August 3, 1866, which authorizes the owner of the land on which it
extinguished by the registration of the servient estate, or is sought to impose the compulsory easement of aqueduct, to
in any other manner. object when the applicant is not the owner or grantee of the water.

According to the legal provision just quoted, the registration of a To enjoy the right granted by the above quoted article 557 of the
servient estate under the Torrens system extinguishes all easements Civil Code, the requisites established in article 558 of the same
to which it is subject and which have not been noted on the Code must be complied with, which are as follows:
certificate of title issued in accordance with the proper decree of
registration.
ART. 558. Any person desiring to make use of the right
granted in the foregoing article shall be obliged —
It will be noted that the law makes no distinction as to the kind of
easement and it is well known that there are two kinds of
1. To prove that he has a right to dispose of the water,
easements — legal and voluntary (art. 536, Civil Code). Now then,
and that it is sufficient for the use to which it is
which of these two kinds of easements is meant by the legal text
destined;
just quoted?

2. To show that the right of way he requests is the most

Section 70 of the said Act No. 496, in relation to this matter says:
convenient and least onerous to third persons;

SEC. 70. . . . Nothing contained in this Act shall in any

3. To indemnify the owner of the servient estate in the
way be construed to . . . change or affect in any other
manner prescribed by the laws and regulations.
way any other rights or liabilities created by law and
applicable to unregistered land, except as otherwise
expressly provided in this Act or in the amendments Mariano B. Banzon has complied with these requirements. It has
hereof. been proved that he was granted the use of 50 liters of water per
second from the Talisay River, a sufficient amount to irrigate his
land; that the passage opened by him is the most convenient and
If the provisions of Act No. 496 do not affect rights created by law,
least onerous to third parties, and that he is willing to indemnify
the easement meant by section 39 of said Act No. 496 above cited
the intestate estate of Jose B. Banzon, owner of the servient estate,
cannot be other than voluntary and not legal easements duly
as the courts may determine.
constituted.

The trial court has fixed the sum of P36.72 as the indemnity to be
Two canals in question were opened by the defendants across Jose
paid by the defendant Mariano B. Banzon to the intestate estate of
B. Banzon's land with his knowledge and consent and are therefore
Jose B. Banzon. lawph!l.net
voluntary easements. And as their existence does not appear in the
original certificate of Torrens title No. 2502 to lot No. 362, in
conformity with the provisions of the aforesaid section 39 of Act As to the counterclaim of Mariano B. Banzon, then, we find that he
No. 496, these easements were extinguished and the defendants has the right, after paying the proper indemnity, to conduct water
have lost their right to the use of said canals. from the Talisay River through the land known as lot No. 362
herein involved, belonging to the intestate estate of Jose B.
Banzon, by opening up a canal similar to the second one here in
But as to the second canal, however, the defendant Mariano B.
question.
Banzon has filed a counterclaim alleging that he has obtained from
the Director of Public Works a grant to use 50 liters of water per
second from the Talisay River to irrigate his lands, and, in But it does not appear that the first canal was opened in accordance
accordance with the provision of article 557 in connection with with the provisions of article 558 in connection with article 557 of
article 558 of the Civil Code, he asks that he be authorized to open, the Civil Code above quoted, and of article 118 of the law of
Waters if August 3, 1866. Nor has a counterclaim been filed with Not satisfied with this judgment, defendants appealed to the Court
respect to it. of Appeals, the latter court affirming the judgment with costs
against the appellants. The case now before us on by way
of certiorari.
In virtue whereof, the judgment appealed from is reversed with
respect to the first canal, and we find that the right of voluntary
easement of aqueduct existing in lot No. 362 in favor of the The only question which is presented to us for determination is
defendants before its registration under the Torrens system has whether there is law which justifies the grant to the appellee of an
been extinguished by such registration, without prejudice to the easement of water over the land of the appellants in order to give
rights said defendants might have under article 557 in connection to the appellee a source of water to irrigate her fishpond.
with article 558 of the Civil Code or article 118 of the Law of
Waters of August 3, 1866; and said judgment is affirmed as
The Court of Appeals holds the view that the claim of the appellee
regards the second canal, without special pronouncement as to
finds support in the provisions of articles 118 to 125 of the Law of
costs . So ordered.
Waters 1866 and articles 557 and 558 of the Civil Code, which
were also relied upon by the court a quo. On this point the Court of
Avanceña, C.J., Johnson, Street and Villamor, JJ., concur. Appeals said: "A perusal of the provisions of the Law of Waters on
this point shows that the easement of aqueduct is granted for any of
the purposes mentioned in article 113 of said law, such as
G.R. No. L-3099             May 21, 1951
irrigation, public bath, or use of factories and drainage. The
provisions of the Civil Code convey the same idea as to the use for
CIPRIANA GONZALES, plaintiff-appellee,  which the right of way may be needed. There is nothing, however,
vs. in the provisions of both the Law of Waters and the Civil Code
PURIFICACION, GUILLERMO, EUSTACIO AND above mentioned, that prohibits the use of water for purposes other
FAUSTINA, all surnamed DE DIOS, assisted by their than those mentioned in said laws. Plaintiff-appellee has proven
guardian CARLOTA INDUCIL defendants-appellants. that she has the right to draw water from Kay Pateng River to
make her fishpond as productive as the other surrounding
fishponds."
Celestino de Dios for appellants.
Rosendo Tansinsin for appellee.
We agree with the Court of Appeals that articles 557 and 558 of
the Civil Code can be invoked in support of the claim of the
BAUTISTA ANGELO, J.: appellee. Article 557 provides that "any person who wishes to use
upon his own land any water of which he may have the control is
Plaintiff is the owner of a fishpond situated in the barrio of entitled to take it through the intervening estates, subject to the
Bambang, Bulacan, adjacent to the fishpond of defendants. The obligation of indemnifying the owners thereof." The phrase "of
only source of water of her fishpond is Kay Pateng River, to which which he may have the control" should be interpreted in
it has neither ingress nor egress, because it has been completely cut connection with article 558 (1) which means that he has a right to
off from it by the fishpond of the defendants. After the several dispose of the water. This was interpreted to mean one who has
attempts made by her to obtain from the defendants a right of way obtained from the government a grant to use water from a river
to and from said river to furnish a source of water to her fishpond (Gonzales vs. Banzon, 51 Phil., 15). The use to which the water
proved futile, she filed the present action in the Court of First may be applied must also be interpreted in the same way: that the
Instance of Bulacan. water be sufficient for the use intended (558[1]). And according to
Manresa "Puede el agua solicitarse para cualquiera de los usos
necesarios de la vida." (4 Manresa, 704, 3rd Ed.). In fact these
Upon agreement of the parties, the court designated one Felipe article were applied to a grant to use water from a river for
Asuncion, a surveyor, to investigate the premises and study the irrigation purposes in the case mentioned above.
most convenient place through which an aqueduct may be
constructed for the supply of water needed by the fishpond of the
plaintiff, who accordingly investigated the property and submitted But as to the second canal, however, the defendant
his report. After the parties have presented their evidence, the court Mariano B. Banzon has filed a counterclaim alleging
rendered judgment, the dispositive part of which is as follows: that he has obtained from the Director of Public Works
a grant to use 50 liters of water per second from the
Talisay River to irrigate his lands, and, in accordance
WHEREFORE the Court hereby renders judgment as with the provision of article 557 in connection with
follows: (a) the plaintiff to have a right of passage for article 558 of the Civil Code, he asks that he be
water from the river Kay Pateng to her fishpond, on the authorized to open, maintain and preserve a canal
northwest side of the dyke represented by the line similar to the second one mentioned on plaintiff's land
connecting corners 6 and 7 of Psu-27824 lot No. 8 of upon payment of the proper indemnity to the plaintiff,
the Ariston de Dios, by constructing a canal eight alleging that the place where said canal passes is the
meters wide and about one hundred meters long; (b) the most convenient and least onerous to third parties, and
plaintiff will construct at her expense a similar dyke, of that there is no other place more appropriate and less
the same height and width alongside the said canal prejudicial.
opposite the old dyke; and (c) the plaintiff pay the
defendants the sum of Seven hundred and ninety-eight
pesos and sixteen centavos (798.16) as just The defendant Mariano B. Banzon undoubtedly has a
compensation including consequential damages. right to compulsory easement of aqueduct upon
Without pronouncement as to costs. payment of indemnity since, although he is not the
owner of the waters of the Talisay River, he can dispose
of 50 liters of the same per second, by virtue of the
IT IS SO ORDERED. grant from the Director of Public Works. This may be
inferred from the provision of article 125 of the Law of
 Waters of August 3, 1866, which authorizes the owner Admitted by the parties in their pleading and established during the
of the land on which it is sought to impose the trial on the merits are the following material facts:
compulsory easement of aqueduct, to object when the
applicant is not the owner or grantee of the water.
On June 20, 1960, 'the plaintiff-appellant file against the
defendant-appellee an action for damages docketed as Civil Case
To enjoy the right granted by article 557 of the Civil No. 3472 in the Court of First Instance of Nueva Ecija. The
Code, the requisites established in article 558 of the complaint alleged that the plaintiff is the absolute owner and actual
same code must be complied with. possessor of a 557,949-square-meter parcel of land in La Fuente,
(Gonzales vs. Banzon, supra). Santa Rosa, Nueva Ecija, and more particularly described in his
Transfer Certificate of Title No. NT-16281. The plaintiff-appellant
Valisno bought the land from the defendant-appellees sister,
If a person who has obtained from the Government a grant to use
Honorata Adriano Francisco, on June 6,1959. (Deed of Absolute
water a river from irrigation was given the right to construct a
Sale, Exh. "A".) The land which is planted with watermelon,
canal over the intervening lands of other private owners upon
peanuts, corn, tobacco, and other vegetables adjoins that of the
payment of indemnity, no valid reason is seen for not granting the
appellee Felipe Adriano on the bank of the Pampanga River. Both
same privilege to the herein appellee who desires to draw water
parcels of land had been inherited by Honorata Adriano Francisco
from a river for the use of her fishpond. A fishpond comes within
and her brother, Felipe Adriano, from their father, Eladio Adriano.
the classification of agricultural land and is regarded as an
At the time of the sale of the land to Valisno, the land was irrigated
important source of revenue (Molina vs. Rafferty, 38 Phil. 167). It
by water from the Pampanga River through a canal about seventy
is generally constructed in low lands or swampy places and draw
(70) meters long, traversing the appellee's land.
its breadth of life from brooks and rivers. It is just as rich and
valuable as any piece of agricultural land and in some regions it is
regarded as the main source of wealth. It is an undertaking to be On December 16, 1959, the appellee levelled a portion of the
encouraged and promoted, for it contributes to the economic irrigation canal so that the appellant was deprived of the irrigation
development of the people. Our law should be interpreted in a water and prevented from cultivating his 57-hectare land.
sense that may give it life if it can be done without doing violence
to reason or to any rule of statutory construction.
The appellant filed in the Bureau of Public Works and
Communications a complaint for deprivation of water rights. A
There can, therefore, be no doubt with regard to the right of the decision was rendered on March 22, 1960 ordering Adriano to
appellee to draw the water she needs for her fishpond through the reconstruct the irrigation canal, "otherwise judicial action shall be
land of the defendants if she has obtained the necessary permit to taken against him under the provisions of Section 47 of Act 2152
use the water from the Government. The law requires that this (the Irrigation Act), as amended." Instead of restoring the irrigation
permit be obtained from the Director of Public Works. (Sec. 14 of canal, the appellee asked for a reinvestigation of the case by the
Act 2152, as amended by Act 3208; The Philippine Sugar Estate Bureau of Public Works and Communications. A reinvestigation
Development Co. vs. Unson and Williams, 53 Phil., 599.) While was granted.
there is no proof to this effect, at least this matter is not an issue in
this case. This point is not disputed. The only important question to
In the meantime, plaintiff Valisno rebuilt the irrigation canal at his
be determine is how and where the right should be exercised, but
own expense because his need for water to irrigate his watermelon
this is a question of fact which the Court of Appeals has
fields was urgent.
determined and which it is not now within our province to pass
upon. The finding of said Court on this matter is final.
On June 20, 1960, he filed a complaint for damages in the Court of
First Instance (now Regional Trial Court) of Nueva Ecija (Civil
Wherefore, the petition is hereby dismissed, without
Case No. 3472) claiming that he suffered damages amounting to
pronouncement as to costs.
P8,000 when he failed to plant his fields that year (1960) for lack
of irrigation water, P800 to reconstruct the canal on defendant
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Montemayor, Adriano's land, and P1,500 for attorney's fees and the costs of suit.
JJ., concur.
On October 25, 1961, the Secretary of Public Works and
G.R. No. L-37409 May 23, 1988 Communications reversed the Bureau's decision by issuing a final
resolution dismissing Valisno's complaint. The Secretary held that
Eladio Adriano's water rights which had been granted in 1923
NICOLAS VALISNO, plaintiff-appellant, 
ceased to be enjoyed by him in 1936 or 1937, when his irrigation
vs.
canal collapsed. His non-use of the water right since then for a
FELIPE ADRIANO, defendant-appellee.
period of more than five years extinguished the grant by operation
of law, hence the water rights did not form part of his hereditary
Honorio Valisno Garcia I for plaintiff-appelant. estate which his heirs partitioned among themselves. Valisno, as
vendee of the land which Honorata received from her father's
estate did not acquire any water rights with the land purchased.
Felipe K Medina for defendant-appellee.

In his answer to the damage suit (Civil Case No. 3472), the
defendant Felipe Adriano admitted that he levelled the irrigation
canal on his land, but he averred: that neither his late father nor his
GRIÑO-AQUINO, J.: sister Honorata possessed water rights for the land which she sold
to the appellant; that he (the appellee) applied for water rights for
his land in 1956 and obtained the same in 1958; and that he had a
This case was certified to this Court by the Court of Appeals in a perfect right to level his land for his own use because he merely
resolution dated August 10, 1973, the sole issue being a question allowed his sister to use his water rights when she still owned the
of law and beyond its jurisdiction. to decide.
adjacent land. He set up a counterclaim for P3,000 as damages The existence of the irrigation canal on defendant's land for the
incurred by him in levelling the land on which the appellant dug an passage of water from the Pampanga River to Honorata's land prior
irrigation canal, P2,000 as actual damages, P3,000 as attorney's to and at the time of the sale of Honorata's land to the plaintiff was
fees, and expenses of litigation. equivalent to a title for the vendee of the land to continue using it
as provided in Article 624 of the Civil Code:
In a decision dated April 21, 1966, the trial court held that the
plaintiff had no right to pass through the defendant's land to draw Article 624. The existence of an apparent
water from the Pampanga River. It pointed out that under Section 4 sign of easement between two estates,
of the Irrigation Law, controversies between persons claiming a established or maintained by the owner of
right to water from a stream are within the jurisdiction of the both shall be considered, should either of
Secretary of Public Works and his decision on the matter is final, them be alienated, as a title in order that he
unless an appeal is taken to the proper court within thirty days. The easement may continue actively and
court may not pass upon the validity of the decision of the Public passively, unless at the time, theownership
Works Secretary collaterally. Furthermore, there was nothing in of the two estates is divided, the contrary
the plaintiff 's evidence to show that the resolution was not valid. It should be provided in the title of
dismissed the complaint and counterclaim. conveyance of either of them, or the sign
aforesaid should be removed before the
execution of the deed.
The plaintiff's motion for reconsideration of the decision was
denied by the trial court. The plaintiff appealed to the Court of
Appeals which certified the case to Us upon the legal question of This provision shall also apply in case of the division of a thing
whether the provisions of the Irrigation Act (Act No. 2152) or owned in common on by two or more persons (Civil Code)
those of the Civil Code should apply to this case.
This provision was lifted from Article 122
The plaintiff-appellant argues that while the trial court correctly of the Spanish Law of Waters which
held that the Secretary of Public Works may legally decide who provided:
between the parties is entitled to apply for water rights under the
Irrigation Act, it erred in ruling that the Secretary has authority to
Article 122. Whenever a tract of irrigated
hear and decide the plaintiff 's claim for damages for the
land which previously received its waters
defendant's violation of his (plaintiff's) right to continue to enjoy
from a single point is divided through
the easement of aqueduct or water through the defendant's land
inheritance, sale or by virtue of some other
under Articles 642, 643, and 646 of the Civil Code, which provide:
title, between two or more owners, the
owners of the higher estates are under
Article 642. Any person who may wish to obligation to give free passage to the water
use upon his own estate any water of which as an easement of conduit for the irrigation
he can dispose shall have the right to make it of the lower estates, and without right to any
flow through the intervening estates, with compensation therefore unless otherwise
the obligation to indemnify their owners, as stipulated in the deed of conveyance. (Art.
well as the owners of the lower estates upon 122, Spanish Law of Waters of August 3,
which the waters may filter or descend. 1866.)

Article 643. One desiring to make use of the No enlightened concept of ownership can shut out the Idea of
right granted inthe preceding article is restrictions thereon, such as easements. Absolute and unlimited
obliged: dominion is unthinkable, inasmuch as the proper enjoyment of
property requires mutual service and forbearance among adjoining
estates (Amor vs. Florentino, 74 Phil. 403).
(1) To prove that he can dispose of the water
and that it is sufficient for the use for which
it is intended; As indicated in the decision dated March 22, 1960 of the Bureau of
Works "the principal issue involved in this case falls under the
subject of servitude of waters which are governed by Article 648
(2) To show that the proposed right of way
of the new Civil Code and the suppletory laws mentioned in the
is the most convenient and the least onerous
cases of Lunod vs. Meneses 11 Phil. 128) and Osmena vs. Camara
to third persons;
(C.A. 380 62773) which are the irrigation law and the Spanish Law
of Waters of August 3, 1866, specifically Article 122 thereof.
(3) To indemnify the owner of the servient
estate in the manner determined by the laws
The deed of sale in favor of Valisno included the "conveyance and
and regulations.
transfer of the water rights and improvements" appurtenant to
Honorata Adriano's property. By the terms of the Deed of Absolute
Article 646. For legal purposes, the Sale, the vendor Honorata Adriano Francisco sold, ceded,
easement of aqueduct shall be considered as conveyed and transferred to Dr. Nicolas Valisno all "rights, title,
continuous and apparent, even though the interest and participations over the parcel of land above- described,
flow of the water may not be continuous, or together with one Berkely Model 6 YRF Centrifugal Pump G"
its use depends upon the needs of the suction, 6" discharge 500-1500 GPM, with Serial No. 5415812 and
dominant estate, or upon a schedule of one (1) set of suction pipe and discharge of pipe with elbow,
alternate days or hours. nipples, flanges and footvalves," and the water rights and such
other improvements appertaining to the property subject of this
sale. According to the appellant, the water right was the primary
consideration for his purchase of Honorata's property, for without Before the petitioner began the construction of its beach hotel, the
it the property would be unproductive. 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
Water rights, such as the right to use a drainage ditch for irrigation
closed the aforementioned passageway when it began the
purposes, which are appurtenant to a parcel of land, pass with the
construction of its hotel, but nonetheless opened another route
conveyance of the land, although not specifically mentioned in the
across its property through which the private respondents, as in the
conveyance. The purchaser's easement of necessity in a water ditch
past, were allowed to pass. (Later, or sometime in August, 1982,
running across the grantor's land cannot be defeated even if the
when it undertook the construction of the second phase of its beach
water is supplied by a third person (Watson vs. French, 112 Me
hotel, the petitioner fenced its property thus closing even the
371 19 C.J. 868-897). The fact that an easement by grant may also
alternative passageway and preventing the private respondents
have qualified as an easement of necessity does detract from its
from traversing any part of it.)
permanency as property right, which survives the determination of
the necessity (Benedicto vs. CA, 25 SCRA 145).<äre||anº•1àw>
As a direct consequence of these closures, an action for injunction
with damages was filed against the petitioner by the private
As an easement of waters in favor of the appellant has been
respondents on September 2, 1982 before the then Court of First
established, he is entitled to enjoy it free from obstruction,
Instance of Cebu.4
disturbance or wrongful interference (19 CJ 984), such as the
appellee's act of levelling the irrigation canal to deprive him of the
use of water from the Pampanga River. 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
WHEREFORE, the appealed decision is set aside, and a new one is
been existing before World War II and since then had been used by
entered ordering the appellee to grant the appellant continued and
them, the community, and the general public, either as pedestrians
unimpeded use of the irrigation ditch traversing his land in order to
or by means of vehicles, in going to and coming from Lapu-Lapu
obtain water from the Pampanga River to irrigate appellant's land.
City and other parts of the country. The private respondents
Let the records of this case be remanded to the court a quo for the
averred that by closing the alleged road right of way in question,
reception of evidence on the appellant's claim for damages.
the petitioner had deprived them access to their properties and
caused them damages.
SO ORDERED.
In the same complainant, the private respondents likewise alleged
G.R. No. 80511             January 25, 1991 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
COSTABELLA CORPORATION, petitioner,  and flotsam on the beach. They also claimed that the debris and
vs. flotsam that had accumulated prevented them from using their
COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., properties for the purpose for which they had acquired them. The
AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., complaint this prayed for the trial court to order the re-opening of
JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., the original passageway across the petitioner's property as well as
PERFECTA L. CHUANGCO, and CESAR T. the destruction of the dike.5
ESPINA,respondents.

In its answer,6 the petitioner denied the existence of an ancient

Roco, Bunag, Kapunan & Migallos for petitioner. road through its property and counter-averred, among others, that it
Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., and its predecessors-in-interest had permitted the temporary,
Inc. intermittent, and gratuitous use of, or passage through, its property
Zosa & Quijano Law Offices for respondents. 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
SARMIENTO, J.: 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
The principal issue raised in this petition for review that what it built was a breakwater on the foreshore land fronting
on certiorari of the decision1 dated May 30, 1986 of the Court of its property and not a dike as claimed by the private respondents.
Appeals,2 which modified the decision3 rendered by the Regional Moreover, contrary to the private respondents' accusation, the said
Trial Court of Lapu-Lapu City in Cebu, is whether or not the construction had benefitted the community especially the
private respondents had acquired an easement of right of way, in fishermen who used the same as mooring for their boats during
the form of a passageway, on the petitioner's property. low tide. The quantity of flotsam and debris which had formed on
the private respondents' beach front on the other hand were but the
It is admitted that the petitioner owns the real estate properties natural and unavoidable accumulations on beaches by the action of
designated as Lots Nos. 5122 and 5124 of the Opon Cadastre, the tides and movement of the waves of the sea. The petitioner's
situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it answer then assailed the private respondents' complaint for its
had constructed a resort and hotel. The private respondents, on the failure to implead as defendants the owners of the other properties
other hand, are the owners of adjoining properties more supposedly traversed by the alleged ancient road right way,
particularly known as Lots Nos. 5123-A and 5123-C of the Opon indispensable parties without whom no final adjudication of the
Cadastre. controversy could be rendered.7
After trial, the court a quo rendered a decision on March 15, 1984 . . . While it is true that there is another outlet for the
finding that the private respondents had acquired a vested right plaintiff to the main road, yet such outlet is a new road
over the passageway in controversy based on its long existence and constructed in 1979, while the road closed by defendant
its continued use and enjoyment not only by the private existed since over 30 years before. Legally, the old road
respondents, but also by the community at large. The petitioner in could be closed; but since the existing outlet is
so closing the said passageway, had accordingly violated the inconvenient to the plaintiff, equitably the plaintiff
private respondents' vested right. Thus, the trial court ordered the should be given a chance to pay for a more convenient
petitioner: 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
1. To open and make available the road in question to
sustain and the defendant regulates the manner of use of
the plaintiffs and the general public at all times free of
the right of way to protect defendant's property and its
any obstacle thereof, unless the defendant, shall provide
customers. This is the gist of Our decision.14
another road equally accessible and convenient as the
road or passage closed by the defendant;
Now before us, the petitioner contends that the decision of the
respondent appellate court is grossly erroneous and not in accord
2. To pay the plaintiff Katipunan Lumber Company,
with the provisions of Articles 649 and 650 of the Civil Code on
Inc. the amount of FIVE THOUSAND PESOS
easements and the prevailing jurisprudence on the matter.
(P5,000.00) a month beginning January, 1983, and the
plaintiff Perfecto Guangco the sum of TWO
HUNDRED PESOS (P200.00) a month beginning The petition is meritorious.
September, 1982, representing their respective
expenditures they had incurred in other beach resorts
It is already well-established that an easement of right of way, as is
after the road was closed, until the passageway claimed
involved here, is discontinuous15 and as such can not be acquired
by them is opened and made available to them, or if the
by prescription.16 Insofar therefore as the appellate court adhered to
defendant chooses to provide another road, until such
the foregoing precepts, it stood correct. Unfortunately, after
road is made available and conveniently passable to the
making the correct pronouncement, the respondent Appellate Court
plaintiffs and the general public; and
did not order the reversal of the trial court's decision and the
dismissal of the complaint after holding that no easement had been
3. To pay the sum of FIFTEEN THOUSAND PESOS validly constituted over the petitioner's property. Instead, the
(P15,000.00) attorney's fees, and to pay the costs.8 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,
Both parties elevated the trial court's decision to the Court of
may demand from the petitioner the latter being the owner of the
Appeals, with the petitioner questioning the alleged "vested right"
"servient" estate.
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" It is provided under Articles 649 and 650 of the New Civil Code
is concerned. that:

In its decision, the respondent Appellate Court held as without Art. 649. The owner, or any person who by virtue of a
basis the trial court's finding that the private respondents had real right may cultivate or use any immovable, which is
acquired a vested right over the passageway in question by virtue surrounded by other immovables pertaining to other
of prescription.9 The appellate court pointed out that an easement persons and without adequate outlet to a public
of right of way is a discontinuous one which, under Article 622 of highway, is entitled to demand a right of way through
the New Civil Code, may only be acquired by virtue of a title and the neighboring estates, after payment of the proper
not by prescription.10 That notwithstanding, the appellate court indemnity.
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
Should this easement be established in such a manner
for Us in not treating the easement here sought by appellees
that its use may be continuous for all the needs of the
Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is
dominant estate, establishing a permanent passage, the
not dependent upon the claims of the parties but a compulsory one
indemnity shall consist of the value of the land
that is legally demandable by the owner of the dominant estate
occupied and the amount of the damage caused to the
from the owner of the servient estate." 11 Thus the appellate court:
servient estate.
(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 In case the right of way is limited to the necessary
accessible and convenient as the one it closed; (2) remanded the passage for the cultivation of the estate surrounded by
case to the trial court for the determination of the just and proper others and for the gathering of its crops through the
indemnity to be paid to the petitioner by the private respondents servient estate without a permanent way, the indemnity
for the said easement; and (3) set aside the trial court's award of shall consist in the payment of the damage caused by
actual damages and attorney's fees.12 such encumbrance.

On petitioner's motion for partial reconsideration, the respondent This easement is not compulsory if the isolation of the
court issued on October 27, 1987 a resolution13denying the said immovable is due to the proprietor's own acts.
motion. The Appellate Court however in denying the petitioner's
motion for reconsideration stated that:
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 As also earlier indicated, there must be a real necessity therefor,
the distance from the dominant estate to a public and not mere convenience for the dominant estate. Hence, if there
highway may be the shortest. 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
Based on the foregoing, the owner of the dominant estate may
particular passage may be said to be "adequate" depends on the
validly claim a compulsory right of way only after he has
circumstances of each case. Manresa, however, says: "In truth, not
established the existence of four requisites, to wit: (1) the
only the estate which absolutely does not possess it should be
(dominant) estate is surrounded by other immovables and is
considered in this condition, but also that which does not have one
without adequate outlet to a public highway; (2) after payment of
sufficiently safe or serviceable; an estate bordering a public road
the proper indemnity; (3) the isolation was not due to the
through an inaccessible slope or precipice, is in fact isolated for all
proprietor's own acts; and (4) the right of way claimed is at a point
the effects of the easement requested by its owner. On the other
least prejudicial to the servient estate. Additionally, the burden of
hand, an estate which for any reason has necessarily lost its access
proving the existence of the foregoing pre-requisites lies on the
to a public road during certain periods of the year is in the same
owner of the dominant estate.17
condition. . . . There are some who propound the query as to
whether the fact that a river flows between the estate and the public
Here, there is absent any showing that the private respondents had road should be considered as having the effect of isolating the
established the existence of the four requisites mandated by law. estate. . . . If the river may be crossed conveniently at all times
For one, they failed to prove that there is no adequate outlet from without the least danger, it cannot be said that the estate is isolated;
their respective properties to a public highway. On the contrary, as in any other case, the answer is in the affirmative."25
alleged by the petitioner in its answer to the complaint, and
confirmed by the appellate court, "there is another outlet for the
The isolation of the dominant estate is also dependent on the
plaintiffs (private respondents) to the main road."18 Thus, the
particular need of the dominant owner, and the estate itself need
respondent Court of Appeals likewise admitted that "legally the old
not be totally landlocked. What is important to consider is whether
road could be closed."19 Yet, it ordered the re- opening of the old
or not a right of way is necessary to fill a reasonable need therefor
passageway on the ground that "the existing outlet (the other
by the owner.26 Thus, as Manresa had pointed out, if the
outlet) is inconvenient to the plaintiff."20 On this score, it is
passageway consists of an "inaccessible slope or precipice,"27 it is
apparent that the Court of Appeals lost sight of the fact that the
as if there is no passageway, that is, one that can sufficiently fulfill
convenience of the dominant estate has never been the gauge for
the dominant owner's necessities, although by the existence of that
the grant of compulsory right of way.21 To be sure, the true
passageway the property can not be truly said that the property is
standard for the grant of the legal right is "adequacy." Hence, when
isolated. So also, while an existing right of way may have proved
there is already an existing adequate outlet from the dominant
adequate at the start, the dominant owner's need may have changed
estate to a public highway, even if the said outlet, for one reason or
since then, for which Article 651 of the Code allows adjustments
another, be inconvenient, the need to open up another servitude is
as to width.28
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 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
Further, the private respondents failed to indicate in their
two criteria: (1) at the point least prejudicial to the servient state;
complaint or even to manifest during the trial of the case that they
and (2) where the distance to a public highway may be the shortest.
were willing to indemnify fully the petitioner for the right of way
According, however, to one commentator, "least prejudice"
to be established over its property. Neither have the private
prevails over "shortest distance."29 Yet, each case must be weighed
respondents been able to show that the isolation of their property
according to its individual merits, and judged according to the
was not due to their personal or their predecessors-in-interest's own
sound discretion of the court. "The court," says Tolentino, "is not
acts. Finally, the private respondents failed to allege, much more
bound to establish what is the shortest; a longer way may be
introduce any evidence, that the passageway they seek to be re-
established to avoid injury to the servient tenement, such as when
opened is at a point least prejudicial to the petitioner. Considering
there are constuctions or walls which can be avoided by a
that the petitioner operates a hotel and beach resort in its property,
roundabout way, or to secure the interest of the dominant owner,
it must undeniably maintain a strict standard of security within its
such as when the shortest distance would place the way on a
premises. Otherwise, the convenience, privacy, and safety of its
dangerous decline."30
clients and patrons would be compromised. That indubitably will
doom the petitioner's business. It is therefore of great importance
that the claimed light of way over the petitioner's property be It is based on these settled principles that we have resolved this
located at a point least prejudicial to its business. case.

Hence, the Private respondents' properties can not be said to be WHEREFORE, the decision dated May 30, 1986, and the
isolated, for which a compulsory easement is demandable. Insofar resolution dated October 27, 1987, of the respondent Court of
therefore as the Appellate Court declared the case to be proper as a Appeals are SET ASIDE and the private respondents' complaint is
controversy for a compulsory right of way, this Court is hereby DISMISSED. Costs against the private respondents.
constrained to hold that it was in error.
SO ORDERED.
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
G.R. No. 77628             March 11, 1991
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 TOMAS ENCARNACION, petitioner, 
compulsory and hence, legally demandable, subject to indemnity vs.
and the concurrence of the other conditions above-referred to. THE HONORABLE COURT OF APPEALS and THE
INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN two (2) meters over the De Saguns' 405-square-meter parcel of
and THE HEIRS OF THE LATE ANICETA MAGSINO land.2
VIUDA DE SAGUN,* respondents.
During the trial, the attention of the lower court was called to the
Esteban M. Mendoza for petitioner. existence of another exit to the highway, only eighty (80) meters
Oscar Gozos for private respondents. away from the dominant estate. On December 2, 1985, the lower
court rendered judgment dismissing petitioner's complaint. It ruled:
FERNAN, C.J.:
It is clear, therefore, that plaintiff at present has two
outlets to the highway: one, through the defendants'
Presented for resolution in the instant petition for review is the not-
land on a one meter wide passageway, which is
so-usual question of whether or not petitioner is entitled to
bounded on both sides by concrete walls and second,
a widening of an already existing easement of right-of-way. Both
through the dried river bed eighty meters away. The
the trial court and the Appellate Court ruled that petitioner is not so
plaintiff has an adequate outlet to the highway through
entitled, hence the recourse to this Court. We reverse.
the dried river bed where his jeep could pass.

The facts are undisputed.

The reasons given for his claim that the one-meter
passageway through defendants' land be widened to two
Petitioner Tomas Encarnacion and private respondent Heirs of the and one-half meters to allow the passage of his jeep,
late Aniceta Magsino Viuda de Sagun are the owners of two destroying in the process one of the concrete fences and
adjacent estates situated in Buco, Talisay, Batangas. ** Petitioner decreasing defendants' already small parcel to only
owns the dominant estate which has an area of 2,590 square meters about 332.5 square meters, just because it is nearer to
and bounded on the North by Eusebio de Sagun and Mamerto the highway by 25 meters compared to the second
Magsino, on the south by Taal Lake, on the East by Felino access of 80 meters or a difference of only 65 meters
Matienzo and on the West by Pedro Matienzo. Private respondents and that passage through defendants' land is more
co-own the 405-square-meter servient estate which is bounded on convenient for his (plaintiffs) business and family use
the North by the National Highway (Laurel-Talisay Highway), on are not among the conditions specified by Article 649
the South by Tomas Encarnacion, on the East by Mamerto of the Civil Code to entitle the plaintiff to a right of way
Magsino and on the West by Felipe de Sagun. In other words, the for the passage of his jeep through defendant's land.3
servient estate stands between the dominant estate and the national
road.
On appeal, the Court of Appeals affirmed the decision of the trial
court on January 28, 1987 and rejected petitioner's claim for an
Prior to 1960, when the servient estate was not yet enclosed with a additional easement.
concrete fence, persons going to the national highway just crossed
the servient estate at no particular point. However, in 1960 when
In sustaining the trial court, the Court of Appeals opined that the
private respondents constructed a fence around the servient estate,
necessity interposed by petitioner was not compelling enough to
a roadpath measuring 25 meters long and about a meter wide  was
justify interference with the property rights of private respondents.
constituted to provide access to the highway. One-half meter width
The Appellate Court took into consideration the presence of a dried
of the path was taken from the servient estate and the other one-
river bed only eighty (80) meters away from the dominant estate
half meter portion was taken from another lot owned by Mamerto
and conjectured that petitioner might have actually driven his jeep
Magsino. No compensation was asked and non was given for the
through the river bed in order to get to the highway, and that the
portions constituting the pathway.1
only reason why he wanted a wider easement through the De
Sagun's estate was that it was more convenient for his business and
It was also about that time that petitioner started his plant nursery family needs.
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
After evaluating the evidence presented in the case, the Court finds
customers.
that petitioner has sufficiently established his claim for an
additional easement of right of way, contrary to the conclusions of
Petitioner's plant nursery business through sheer hard work the courts a quo.
flourished and with that, it became more and more difficult for
petitioner to haul the plants and garden soil to and from the nursery
While there is a dried river bed less than 100 meters from the
and the highway with the use of pushcarts. In January, 1984,
dominant tenement, that access is grossly
petitioner was able to buy an owner-type jeep which he could use
inadequate.1âwphi1 Generally, the right of way may be demanded:
for transporting his plants. However, that jeep could not pass
(1) when there is absolutely no access to a public highway, and (2)
through the roadpath and so he approached the servient estate
when, even if there is one, it is difficult or dangerous to use or is
owners (Aniceta Vda. de Sagun and Elena Romero Vda. de Sagun)
grossly insufficient. In the present case, the river bed route is
and requested that they sell to him one and one-half (1 1/2) meters
traversed by a semi-concrete bridge and there is no ingress nor
of their property to be added to the existing pathway so as to allow
egress from the highway. For the jeep to reach the level of the
passage for his jeepney. To his utter consternation, his request was
highway, it must literally jump four (4) to five (5) meters up.
turned down by the two widows and further attempts at negotiation
Moreover, during the rainy season, the river bed is impassable due
proved futile.
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
Petitioner then instituted an action before the Regional Trial Court passage difficult, if not impossible, it is if there were no outlet at
of Batangas, Branch 6 (Tanauan) to seek the issuance of a writ of all.
easement of a right of way over an additional width of at least
Where a private property has no access to a public road, it has the x x x           x x x          x x x
right of easement over adjacent servient estates as a matter of law.4
WHEREFORE, in conformity with the foregoing discussion, the
With the non-availability of the dried river bed as an alternative appealed decision of the Court of Appeals dated January 28, 1987
route to the highway, we transfer our attention to the existing is REVERSED and SET ASIDE. Petitioner Tomas Encarnacion is
pathway which straddles the adjoining properties of the De Sagun hereby declared entitled to an additional easement of right of way
heirs and Mamerto Magsino. of twenty-five (25) meters long by one and one-half (1 1/2) meters
wide over the servient estate or a total area of 62.5 square meters
after payment of the proper indemnity.
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. SO ORDERED.
24-26). We cannot begrudge petitioner for wanting that which is
convenient. But certainly that should not detract from the more
G.R. No. L-63996 September 15, 1989
pressing consideration that there is a real and compelling need for
such servitude in his favor.
EUSEBIO FRANCISCO, petitioner, 
vs.
Article 651 of the Civil Code provides that "(t)he width of the
INTERMEDIATE APPELLATE COURT and CRESENCIO
easement of right of way shall be that which is sufficient for the
J. RAMOS, respondents.
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 Arturo Agustines for petitioner.
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
Padilla Law Office for private respondent.
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 NARVASA, J.:
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 Contested in the appellate proceedings at bar is the entitlement of
the risk of theft simply because it could not pass through the Cresencio J. Ramos, owner of Lot 860-A of the Malinta Estate, to
improvised pathway, is sheer pigheadedness on the part of the an easement of right of way through the land belonging to
servient estate and can only be counter-productive for all the petitioner Eusebio Francisco, Lot 266 also of the same Malinta
people concerned. Petitioner should not be denied a passageway Estate. The Court of First Instance of Bulacan declared Ramos to
wide enough to accomodate his jeepney since that is a reasonable be so entitled, by judgment rendered in Civil Case No. 66-V-73.
and necessary aspect of the plant nursery business. That judgment was affirmed by the Intermediate Appellate Court
in CA-G.R. No. 60968-R, promulgated on September 7, 1982.
Francisco contends that both Courts are wrong, and asks this Court
We are well aware that an additional one and one-half (1 1/2) to reverse them. About the basic facts there is no dispute.
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 Ramos' Lot 860-A used to be a part of Lot 860 of the Malinta
compensate private respondents for their loss. Perhaps, it would be Estate. Lot 860 was owned by Cornelia and Frisca Dila, and had a
well for respondents to take the offer of petitioner seriously.5 But frontage along Parada Road measuring 51.90 meters. Adjoining
unless and until that option is considered, the law decrees that Lot 860 was Lot 226, owned by Eusebio Francisco, as aforestated;
petitioner must indemnify the owners of the servient estate it also had a frontage along Parada Road of 62.10 meters.
including Mamerto Magsino from whose adjoining lot 1/2 meter
was taken to constitute the original path several years ago. Since On December 3,1947, the co-owners of Lot 860 (Cornelia and
the easement to be established in favor of petitioner is of a Frisca Dila) executed a deed by which an undivided one-third
continuous and permanent nature, the indemnity shall consist of portion of the land was donated to a niece, Epifania Dila, and
the value of the land occupied and the amount of the damage another undivided one-third (1/3) portion to the children of a
caused to the servient estate pursuant to Article 649 of the Civil deceased sister, Anacleta Dila, and the remaining portion, also an
Code which states in part: undivided third, was declared to pertain exclusively to and would
be retained by Cornelia Dila. 1 The new co-owners then had Lot
Art. 649. The owner, or any person who by virtue of a 860 subdivided and respectively allocated to themselves as
real right may cultivate or use any immovable, which is follows: 2
surrounded by other immovables pertaining to other
persons and without adequate outlet to a public Lot 860-A (2,204 sq. m.), to Cornelia Dila;
highway, is entitled to demand a right of way through
the neighboring estates, after payment of the proper
indemnity. Lot 860-B (5,291 sq. m.), to Epifana Dila
(the niece);

Should this easement be established in such a manner

that its use may be continuous for all the needs of the Lot 860-C (3,086 sq. m.), to Cornelia Dila
dominant estate, establishing a permanent passage, the also; and
indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the Lot 860-D (5,291 sq. m.), to the heirs of
servient estate. Anacleta Dila the other niece).
After this, the co-owners signed a partition agreement, 3 putting an temporary relief in the exercise of its power
end to their co-ownership and assuming exclusive ownership and of equity.
possession of their respective individual shares in accordance with
the subdivision plan.
Ramos posted the required bond, and Court issued the writ of
preliminary injunction. 14
The former co-owners evidently overlooked the fact that, by reason
of the subdivision, Lot 860-B of Epifania Dila came to include the
After filing his answer with counterclaim, 15 Francisco once more
entire frontage of what used to be Lot 860 along Parada Road, and
moved for the setting aside of the injunctive writs on the ground
thus effectively isolated from said road the other lots, i.e., Lots
that they had been issued in excess of the Court's jurisdiction since
860- A and 860-C of Cornelia Dila, and Lot 860-D of the children
they did more than merely preserve the status quo, and were based
of Anacleta Dila. 4
on the commissioner's report which was not only inaccurate and
inconclusive but had been adopted by the Court without hearing or
Anyway, Cornelia sold Lot 860-A (2,204 sq. m. to the sisters according him an opportunity to comment on or object to it. 16 By
Marcosa, Margarita, and Irinea Eugenio. 5 And in 1971, the Order dated November 19, 1973, the Court dissolved the
Eugenio Sisters sold the land to Cresencio J. Ramos. 6 injunctions, setting aside its Orders of August 31, and September
10, 1973. 17
Some months later, in March, 1972, after having set up a piggery
on his newly acquired property, Ramos had his lawyer write to Six (6) days later, however, the Court handed down its verdict,
Eusebio Francisco — owner, as above mentioned, of the adjoining adversely to Francisco. The dispositive part thereof reads as
lot, Lot 266- to ask for a right of way through the latter's land. follows:
Negotiations thereafter had however failed to bring about a
satisfactory arrangement. Francisco's proposal for an exchange of
In view of the foregoing premises: (1) the
land at the rate of one (1) square meter from him to three (3)
road right of way prayed for by plaintiff
square meters from Ramos, as was supposedly the custom in the
over defendant's land, Exhibit 'A- l' is
locality, was unacceptable to Ramos. 7
hereby granted, plaintiff shall pay defendant
the amount of Twenty Pesos (P20.00) per
Later that year, 1972, Ramos succeeded, through the intercession square meter as indemnity or a total of Three
of Councilor Tongco of Valenzuela, in obtaining a three-meter Hundred Fifty Pesos (P350.00) considering
wide passageway through Lot 860-B of Epifania Dila . 8 Yet in that the area of Exhibit 'A-l' is 17.5 square
August, 1973, he inexplicably put up a ten-foot high concrete wall meters; (2) the writ for a permanent
on his lot, this was in August, 1973, and thereby closed the very mandatory injunction is likewise granted
right of way granted to him across Lot 860-B. It seems that what and defendant is consequently directed to
he wished was to have a right of passage precisely through remove immediately the adobe fence along
Francisco's land, considering this to be more convenient to him, the road right of way as fixed by this Court
and he did not bother to keep quiet about his determination to bring and to refrain from obstructing said passage
suit, if necessary, to get what he wanted. 9 in any manner what ever, upon payment by
the plaintiff of the sum of Three Hundred
Fifty Pesos to the defendant, through this
Francisco learned of Ramos' intention and reacted by replacing the
court; (3) upon the defendant's failure to do
barbed-wire fence on his lot along Parada Road with a stone wall,
so, the Sheriff is hereby directed to
also in August, 1973. 10 Shortly thereafter, Francisco was served
immediately remove said obstructions at
with summons and a copy of the complaint in Civil Case No. 66-
defendant's expenses; (4) let a copy of the
V-73 of the Court of First Instance of Bulacan, instituted by
decision be served upon the Register of
Ramos, 11 as well as a writ of preliminary mandatory injunction
Deeds of Bulacan for proper annotation of
directing him to remove his stone fence and keep his lot open for
the road right of way on defendant's title,
Ramos' use .12
Transfer Certificate of Title over Lot 266
upon finality of this decision.
Francisco moved to dissolve the mandatory injunction. The Court
appointed a commissioner who conducted an ocular inspection of
Defendant's counterclaim for moral and
the lots in question, Lots 860-A, 860-B and 266 and submitted a
exemplary damages and attorney's fees are
report of his findings. On the basis of the commissioner's report,
dismissed for lack of merit.
the Court issued another Order on September 10, 1973, 13 granting
Ramos —
Francisco appealed to the Court of Appeals. 18 In its own decision
promulgated on September 7, 1982, the latter affirmed the Trial
. . . a temporary right of way over
Court's judgment, 19 and later denied Francisco's motion for
defendant's property hereby ordering
reconsideration. 20 Francisco then appealed to this Court. Francisco
defendant to immediately remove all
submits that — 21
obstructions existing on points 2 and 4 of
Annex A [of the Commissioner's Report] up
to the second post of the stone wall along 1) Ramos' complaint, containing no
points 2 and 3 in order that plaintiff may averment that demand for the easement of
have a free access to his property, upon right of 28 way had been made only after
plaintiffs filing a bond in the sum of payment of proper indemnity in accordance
P2,000.00 without in any way determining with Article 649 of the Civil Code, was
by this grant the issue or issues involved in dismissible for failure to state a cause of
this case, but merely as a measure of action;
 2) It was error to brush aside said statutory said respondent had been able to obtain right of passage to the
pre-condition in Article 649 as of "no same public road over a 3-meter wide portion of Lot 860-B owned
consequence" or "absurd" in light of "the by Epifania Dila through the intercession of Councilor Tongco of
principle of substantial performance" in Valenzuela . 24 The presence of the tire marks indicating that the
Article 1234 of the Civil Code; portion of Lot 860-B where they were found had been used as a
passageway was also brought to the attention of the Trial Court at
the ocular inspection conducted, with the parties present or duly
3) In view of the last paragraph of said
represented, on May 17, 1974. 25
Article 649, Francisco's Lot 266 may not be
considered a servient estate subject to a
compulsory easement of right of way in The evidence is, therefore, persuasively to the effect that the
favor of Ramos' Lot 860-A; private respondent had been granted an adequate access to the
public highway (Parada Road) through the adjacent estate of
Epifania Dila even as he was trying to negotiate a satisfactory
4) Courts are not empowered to establish
agreement with petitioner Francisco for another passageway
judicial easements; and
through the latter's property. If at the time he filed suit against the
petitioner, such access (through the property of Epifania Dila)
5) Ramos was not entitled to a writ of could no longer be used, it was because he himself had closed it off
mandatory injunction against Francisco. by erecting a stone wall on his lot at the point where the
passageway began for no reason to which the record can attest
except to demonstrate the isolation of his property alleged in his
In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision, complaint. But the law makes it amply clear that an owner cannot,
Inc., 22 this Court held that a compulsory easement of way cannot as respondent has done, by his own act isolate his property from a
be obtained without the presence of four (4) requisites provided for public highway and then claim an easement of way through an
in Articles 649 and 650 of the Civil Code, which the owner of the adjacent estate. The third of the cited requisites: that the claimant
dominant tenement must establish, to wit: of a right of way has not himself procured the isolation of his
property had not been met indeed the respondent had actually
(1) That the dominant estate is surrounded brought about the contrary condition and thereby vitiated his claim
by other immovables and has no adequate to such an easement. It will not do to assert that use of the
outlet to a public highway (Art. 649, par. 1); passageway through Lot 860-B was dffficult or inconvenient, the
evidence being to the contrary and that it was wide enough to be
traversable by even a truck, and also because it has been held that
(2) After payment of proper indemnity (Art. mere inconvenience attending the use of an existing right of way
649, par. 1, end); does not justify a claim for a similar easement in an alternative
location.
(3) That the isolation was not due to acts of
the proprietor of the dominant estate; and ... the petitioner contends that since the
respondent company constructed the
(4) That the right of way claimed is at the concrete wall blocking his ingress and
point least prejudicial to the servient estate; egress via the Gatchalian Avenue, the
and insofar as consistent with this rule, nearest, most convenient and adequate road
where the distance from the dominant estate to and from a public highway, he has been
to a public highway may be the shortest. constrained to use as his temporary' way the
(Art. 650). adjoining lots belonging to different
persons. Said way is allegedly 'bumpy and
impassable especially during rainy seasons
What clearly the appealed Decision overlooked or failed to accord because of flood waters, mud and tall
the significance due it is the fact already adverted to and which has 'talahib' grasses thereon.' Moreover,
never been disputed that respondent Ramos, having already been according to the petitioner, the road right of
granted access to the public road (Parada Road) through the other way which the private respondents referred
adjoining Lot 860-B owned by Epifania Dila — and this, at the to as the petitioner's alternative right of way
time he was negotiating with petitioner for the similar easement to Sucat Road is not an existing road but has
over the latter's Lot 266 that he now claims — inexplicably gave remained a proposed road as indicated in the
up that right of access by walling off his property from the subdivision plan of the Sabrina Rodriguez
passageway thus established. The evidence, also uncontradicted, is Lombos Subdivision. 26
that said passageway was 2.76 meters wide, or wide enough to
accommodate a truck. The surveyor who at the instance of
petitioner made a survey of the premises on September 13, 1973, The petitioner's position is not impressed
shortly after Ramos had filed his complaint, verified the existence with merit. ... As borne out by the records of
of said passageway from the presence of tire marks found on the the case, there is a road right of way
scene and indicated on the sketch plan he prepared the path that it provided by the Sabrina Rodriguez Lombos
took from said respondent's Lot 860-A through Lot 860-B to Subdivision indicated as Lot 4133-G-12 in
Parada Road. 23 That there was such a passageway was also its subdivision plan for the buyers of its lots.
confirmed by another witness, Parada Barrio Captain Fausto The fact that said lot is still undeveloped and
Francisco, one of those who had earlier tried to bring petitioner and causes inconvenience to the petitioner when
respondent to an agreement about the proposed right of way he uses it to reach the public highway does
through the property of the former. This witness declared, as not bring him within the ambit of the legal
already stated, that after the negotiations had been stalled by the requisite (of lack of adequate outlet). . . .To
failure of the parties to agree on the terms of a proposed land allow the petitioner access to Sucat Road
exchange that would have given Ramos access to Parada Road, through Gatchalian Avenue inspite of a road
 right of way provided by the petitioner's the private respondent declared without right to the easement sued
subdivision for its buyers simply because for, and the writ of preliminary mandatory injunction issued in said
Gatchalian Avenue allows petitioner a much case is LIFTED. Costs against the private respondent.
greater ease in going to and from the main
thoroughfare is to completely ignore what
SO ORDERED.
jurisprudence has consistently maintained
through the years regarding an easement of a
right of way, that 'mere convenience for the G.R. No. 75723 June 2, 1995
dominant estate is not enough to serve as its
basis. To justify the imposition of this
SIMEON FLORO, petitioner, 
servitude, there must be a real, not fictitious
vs.
or artificial, necessity for it. 27
ORLANDO A. LLENADO (Deceased), substituted by his wife
WENIFREDA T. LLENADO, in her own behalf as
On the authority of the Bacolod-Murcia ruling already referred to Administratrix of the Estate of Orlando A. Llenado and as
that all the four requisites prescribed in Articles 649 and 650 must Legal Guardian of Minors Ma. Bexina, Avelino and Antonio,
be established in order to warrant the creation of a legal or all surnamed Llenado, and the COURT OF
compulsory easement of way, what has already been stated as to APPEALS, respondents.
the absence of one of those requisites is, without going any further,
already decisive of this appeal and impels a reversal of the
appealed Decision, which has clearly ignored or failed to correctly
appreciate the import of crucial facts dictating a disposition
contrary to that made therein. ROMEO, J.:

Whether the Court of Appeals also erred, as the petitioner would The instant petition for review on certiorari presents two (2) issues
put it, in not dismissing the action for want of averment or showing for resolution, namely: (1) whether or not a valid contract of
that proper indemnity had been pre-paid for the right of way easement of right of way exists when the owner of one estate
demanded is not now inquired into. While such a proposition voluntarily allows the owner of an adjacent estate passage through
would appear to be supported by the Bacolod-Murcia ruling which his property for a limited time, without compensation; and, (2)
in part states that: whether or not an owner/developer of a subdivision can demand a
compulsory easement of right of way over the existing roads of an
adjacent subdivision instead of developing his subdivision's
... The Central's original complaint only
proposed access road as provided in his duly approved subdivision
makes reference to a reasonable
plan.
compensation in paragraph 14 and no more.
Assuming that such an expression can be
stretched into a manifestation that the Simeon Floro is the owner of a piece of land known as the Floro
Central is willing to pay such compensation Park Subdivision situated in Barangay Saluysoy, Meycauayan,
as may be ultimately fixed by the Court, it Bulacan. 1 The subdivision has its own egress and ingress to and
still is not prepayment required by Article from the MacArthur Highway by means of its Road Lot 4 and the
649 of the Civil Code;... PNR level crossing.

reservations may with reason be held about interpreting Article Orlando A. Llenado, 2 on the other hand, was the registered owner
649 to require advance payment of indemnity as a condition of two (2) parcels of land, with a total area of 34,573 sq. meters,
precedent to the filing of an action for a compulsory right of way. more or less, 3 known as the Llenado Homes Subdivision
The appealed Decision of the Court of Appeals observes that: ("Llenado Homes," for brevity). Prior to its purchase by Llenado
from the owner Francisco de Castro, the land was known as the
Emmanuel Homes Subdivision, a duly licensed and registered
... It is absurd to say that even before the
housing subdivision in the name of Soledad Ortega. 4 Bounded on
complaint is filed there must be a prior
the South by the 5 to 6 meter-wide Palanas Creek, 5 which
payment of the indemnity for We do not
separates it from the Floro Park Subdivision, and on the west by
know as yet how much such indemnity
ricelands belonging to Marcial Ipapo, Montaos and Guevarra, the
would be. If both parties had previously
Llenado Homes does not have any existing road or passage to the
agreed on such indemnity, no suit would be
MacArthur Highway. However, a proposed access road traversing
essential. 28
the idle riceland of Marcial Ipapo has been specifically provided in
the subdivision plan of the Emmanuel Homes Subdivision, which
There would, indeed, be some point in looking askance at a was duly approved by the defunct Human Settlement Regulatory
reading of the law which would impute to it a strict requirement to Commission (now Housing and Land Use Regulatory Board). 6
pay "proper indemnity" in advance of a suit the purpose of which,
in addition to creating an easement, is precisely to fix the amount
Sometime in February, 1983, the Llenados sought, and were
of the indemnity to be paid therefor.
granted, permission by the Floros to use Road Lots 4 and 5 of the
Floro Park Subdivision as passageway to and from MacArthur
The question, however, is better left for consideration in a more Highway. On April 7, 1983, however, Floro barricaded Road Lot 5
appropriate setting where a ruling would not constitute the mere with a pile of rocks, wooden posts and adobe stones, thereby
dictum that it might be perceived to be were it to be made here. preventing its use by the Llenados.

WHEREFORE, the appealed Decision of the Court of Appeals is Their request for the reopening of Road Lot 5 having been denied,
REVERSED and SET ASIDE. The complaint in Civil Case No. Orlando Llenado instituted on April 13, 1983, a complaint before
66-V-73 of the Court of First Instance of Bulacan is DISMISSED, the Regional Trial Court (RTC) of Malolos, Bulacan, against
Simeon Floro for Easement of Right of Way with Prayer for the d. To pay the costs of
Issuance of a Writ of Preliminary Mandatory Injunction and the suit.
Damages. The complaint was docketed as Civil Case No. 6834-M
and raffled off to Branch XIX, presided over by Hon. Judge
SO ORDERED.
Camilo Montesa.

On appeal by Llenado, the appellate court set aside the decision of

After hearing and ocular inspection, the trial court, in an order
the trial court in a decision 12 promulgated on February 11, 1986,
dated July 15, 1983, 7 granted the prayer for the issuance of a writ
the dispositive portion of which reads as follows:
of preliminary mandatory injunction upon the filing of a bond by
Llenado in the amount of one hundred thousand pesos
(P100,000.00). Floro was ordered: WHEREFORE, premises considered, the
decision appealed from is hereby SET
ASIDE and another one entered:
1. To open the road by removing the rocks
and wooden posts and/or to remove the
barricade on the subject road of the Floro (1) Granting the establishment of a legal or
Park Subdivision and enjoining him and any compulsory easement of right of way
person or persons under him from doing or passing through Road Lots 4 and 5 of
performing any act or acts which will defendant's Floro Park Subdivision in favor
prevent (LLENADO) or his agents or any of plaintiff's Llenado Homes Subdivision;
person acting under (LLENADO's)
instructions from passing through the
(2) Ordering defendant to remove
subject subdivision road to get into and to
immediately all of the obstructions, such as
get out of the aforementioned properties of
walls, rocks and posts with which he had
(LLENADO) until further order from this
barricaded Road Lot 5 for the purpose of
Court.
preventing plaintiff from using defendant's
subdivision as passage way to the
Floro moved for reconsideration but was denied the relief MacArthur Highway;
sought. 8 He then filed with the Court of Appeals a petition
for certiorari  and prohibition with petition for a writ of
(3) Ordering defendant to pay to plaintiff,
preliminary injunction and restraining order, but later on, moved to
upon finality of this decision, the following:
withdraw his petition. His motion for withdrawal was granted by
the appellate court in its Resolution dated March 30, 1984 which
declared the case closed and terminated. 9 (a) P60,000.00 —
temperate or moderate
damages
In the meantime, Orlando Llenado died and was substituted by his
wife Wenifreda T. Llenado as administratrix of his estate and its
legal guardian of their four (4) minor children. 10 Trial on the (b) P100,000.00 —
merits of the case which was suspended pending resolution of the moral damages; and
petition before the Court of Appeals, resumed.
(c) P30,000.00 —
On October 16, 1984, the trial court rendered judgment dismissing attorney's fees;
the case and lifting the writ of preliminary mandatory injunction
previously issued. The dispositive portion of the decision 11 reads:
(4) Ordering plaintiff to pay to defendant the
amount of P60,000.00 within ten (10) days
WHEREFORE, judgment is hereby from the date of finality of this decision as
rendered dismissing the instant complaint indemnity for the right of way pursuant to
for lack of merit, and the writ of preliminary the mandate of Article 649 of the Civil
mandatory injunction issued in favor of the Code; and
plaintiff is hereby ordered dissolved and/or
lifted. On the counterclaim posed by
defendant, the plaintiff is hereby ordered to (5) Ordering defendant to pay the costs.
pay defendant the following amounts:
The liability of the defendant under No. (3)
a. P30,000.00 as (supra) shall be legally compensated by the
actual damages liability of the plaintiff under No. (4)
suffered by defendant; (supra) automatically to the extent that the
amount of one is covered by the amount of
the other.
b. P77,500.00 as
compensation for the
use of defendant's SO ORDERED.
property;
On August 14, 1986, the appellate court in separate resolutions
c. P15,000.00 as denied Floro's motion for reconsideration and supplementary
attorney's fees; and, motion 13 and granted Llenado's motion for partial execution
pending appeal. 14 The latter resolution provided in its dispositive
portion, thus:
 WHEREFORE, upon the posting by Both Orlando 23 and Wenifreda Llenado 24testified that the
plaintiff-appellant of a bond in the amount conditions of the easement of right of way were still to be drawn
of ONE HUNDRED THOUSAND PESOS up by Floro's lawyer. Thus, no compensation was agreed upon, and
(P100,000.00) approved by this Court, let a none was paid, for the passage through Floro's property during the
writ of partial execution pending appeal be month of March. 25
issued ordering the defendant-appellee to
remove immediately all of the obstructions,
However, when Wenifreda saw Floro in the evening of April 7,
including all walls, rocks, posts, and other
1983 to negotiate for the reopening of Road Lot 5 and Floro laid
materials with which he has barricaded Road
down his
Lot 5, for the purpose of preventing
conditions 26 for the requested reopening and presumably for the
plaintiff-appellant from using defendant's
requested easement of right of way, Orlando rejected said
subdivision as passage way to the
conditions for being onerous. 27
MacArthur Highway. Said Order shall
include Road Lot 4 so that plaintiff-
appellant will have free access to MacArthur In Dionisio v. Ortiz, 28 where therein private respondents claimed
Highway. to have every right to use Howmart Road as passageway to EDSA
by reason of a standing oral contract of easement of right of way
with therein petitioner, so that the latter did not have the right to
SO ORDERED.
put a barricade in front of private respondents' gate and to stop
them from using said gate as passageway to Howmart Road, the
The writ of partial execution pending appeal was issued on Court said:
October 2, 1986 after the instant Petition had been filed and after
the Court had resolved on September 15, 1986 to require Llenado
There is no question that a right of way was
to comment thereon. On motion of Floro, the Court issued a
granted in favor of the private respondents
restraining order on October 29, 1986, 15 enjoining the appellate
over Howmart Road but the records disclose
court from carrying out its writ of partial execution pending
that such right of way expired in December
appeal. Subsequently, the instant petition was given due course. 16
1988. The continued use of the easement
enjoyed by QCIEA including the private
In a petition to review a decision of the Court of Appeals under respondents is by the mere tolerance of the
Rule 45 of the Rules of Court, the jurisdiction of the court is owner pending the renegotiation of the terms
ordinarily confined to reviewing errors of law committed by the and conditions of said right of way. . . .
Court of Appeals, its findings of fact being conclusive on the Absent an agreement of the parties as to the
Court. 17 There are, however, exceptional circumstances that would consideration, among others, no contract of
compel the Court to review the findings of fact of the Court of easement of right of way has been validly
Appeals, summarized in Remalante v. Tibe 18 and subsequent entered into by the petitioners and QCIEA.
cases 19 as follows: (1) when the inference made is manifestly Thus the private respondents' claim of an
mistaken, absurd or impossible; (2) when there is a grave abuse of easement of right of way over Howmart
discretion; (3) when the finding is grounded entirely on Road has no legal or factual basis.
speculations, surmises or conjectures; (4) when the judgment of the
Court of Appeals is based on misapprehension of facts; (5) when
As in the Dionisio case, the use of Road Lots 4 and 5 by the
the findings of fact are conflicting; (6) when the Court of Appeals
Llenados during the month of March was by mere tolerance of
in making its findings went beyond the issues of the case and the
Floro pending the negotiation of the terms and conditions of the
same is contrary to the admissions of both appellant and appellee;
right of way. This is evident from the testimony of Wenifreda that
(7) when the findings of the Court of Appeals are contrary to those
"they said to us to go on while they are preparing for the papers"
of the trial court; (8) when the findings of fact are conclusions
and that "we can use that for a while, while they were making for
without citation of specific evidence on which they are based; (9)
the papers." 29 Although such use was in anticipation of a voluntary
when the Court of Appeals manifestly overlooked certain relevant
easement of right of way, no such contract was validly entered into
facts not disputed by the parties and which, if properly considered,
by reason of the failure of the parties to agree on its terms and
would justify a different conclusion; and, (10) when the findings of
conditions. Thus, private respondents Llenados cannot claim
fact of the Court of Appeals are premised on the absence of
entitlement to a right of way through the Floro Park Subdivision on
evidence and are contradicted by the evidence on record.
the basis of a voluntary easement.

The findings and conclusions of the Court of Appeals, being

Having ruled that no voluntary easement of right of way had been
contrary to the findings and conclusions of the trial court, the
established in favor of private respondents Llenados, we now
instant case falls within the exception. Thus, the Court may
determine whether or not they are entitled to a compulsory
scrutinize the evidence on the record to bring to light the real facts
easement of right of way.
of the case. 20

For the Llenados to be entitled to a compulsory servitude of right

It is not disputed that sometime in February 1983, Floro granted
of way under the Civil Code, the preconditions provided under
the Llenados verbal permission to pass through the Floro Park
Articles 649 and 650 thereof must be established. These
Subdivision in going to and from the MacArthur Highway.
preconditions are: (1) that the dominant estate is surrounded by
Whether such permission, as claimed by Floro, was for the month
other immovables and has no adequate outlet to a public highway
of March only, without compensation and as a neighborly gesture
(Art. 649, par. 1); (2) after payment of proper indemnity (Art. 649,
for the purpose merely of enabling the Llenados to install stone
par. 1); (3) that the isolation was not due to acts of the proprietor of
monuments (mojones) on their land, 21 or was in relation to the
the dominant estate (Art. 649, last par.); and, (4) that the right of
easement of right of way granted in their favor, as insisted by the
way claimed is at the point least prejudicial to the servient estate;
Llenados, 22 the fact remains that no such contract of easement of
and insofar as consistent with this rule, where the distance from the
right of way was actually perfected between Floro and Llenado.
dominant estate to a public highway may be the shortest (Art. however, remained in the Subdivision Plan to be through the Ipapo
650). 30 property, as approved by the HSRC.

The burden of proving the existence of the prerequisites to validly When asked by the court as to the policy of the HSRC regarding
claim a compulsory right of way lies on the owner of the dominant the approval of a subdivision plan in connection with the right of
estate. 31 We find that private respondents have failed in this way issue, Engr. Ravello responded that as a prerequisite for
regard. approval, the subdivision must have an access road. It was not
necessary that the access road be a paved road. A dirt road was
sufficient provided that the owner of the lot used as access road
Significantly, when Orlando Llenado filed the complaint for legal
gives his consent and the owner/developer/applicant of the
easement under Articles 649 and 650 of the Civil Code, he focused
proposed subdivision develops the proposed access road, 44 as
his argument on the absence of any road, other than the closed road
approved by the HSRC, in compliance with Section 29 of
of the Floro Park Subdivision, as his means of ingress and egress
Presidential Decree No. 957 which states:
to and from his property. However, he omitted to state that there is
a proposed access road through the Ipapo property.
Sec. 29. Right of way to Public Road. —
The owner or developer of a subdivision
Danilo Ravello, an engineer employed as Project Officer of the
without access to any existing public road or
Human Settlement Regulatory Commission (HSRC) since 1981,
street must secure a right of way to a public
testified that his duties consisted in evaluating and processing
road or street and such right of way must be
subdivision plans and making the proper recommendation for their
developed and maintained according to the
approval or disapproval. The application of Soledad Ortega for the
requirement of the government authorities
Emmanuel Homes Subdivision, 32 appearing on page 120 of the
concerned.
records of the HSRC, had the following attachments: (1) Sketch
Plan of the property containing an area of 34,973 sq. m.; 33 (2)
Waterline Layout On appeal to the court of Appeals, private respondents Llenado
Plan; 34 (3) Vicinity Plan; 35 (4) Road Plan Layout; 36 and (5) submitted a letter of Marcial Ipapo dated July 3, 1985 addressed to
Consolidation Subdivision Plan. 37 According to Ravello, as per the
Plans Exhs. "10-A" and "10-C", Road Lot 3 of the Emmanuel HSRC, 45 informing the latter that he did not give a road right of
Homes Subdivision starts and ends with adjacent properties; on way over his property in favor of Soledad Ortega, the developer of
one end, the property owned by Mariano Monadero and at the Emmanuel Homes Subdivision. This letter seems to be an
other, the property owned by a certain Ventura Tan Mariano. As aftermath of the testimony of Engr. Ravello that the notarized
per Plans, the access road to the subdivision should have come affidavit of Ipapo submitted by Soledad Ortega to the HSRC could
from the MacArthur Highway through the Ipapo not be located in the records of the Commission. 46 This new
property. 38 Having found on ocular inspection that the access road matter, however, is inadmissible in evidence, not having been
indicated in the Plan did not actually exist, the HSRC required authenticated in accordance with Section 20, Rule 132 of the Rules
applicant Soledad Ortega to submit a written right of way of Court. It was, therefore, erroneous on the part of the Court of
clearance from Ipapo, which she did and on the basis of which, her Appeals to consider this piece of evidence in its Resolution For
application on behalf of the Emmanuel Homes Subdivision was The Motion For Reconsideration dated August 14, 1986. 47
approved. 39
There being an existing right of way over the Ipapo property, the
When Orlando Llenado acquired the subject property, he adopted first requirement for a grant of a compulsory easement of right of
the subdivision plans of Emmanuel Homes and renamed it as the way over the Floro Park Subdivision has not been met.
Llenado Homes Subdivision. Accordingly, he applied for the
issuance of a new Development Permit and License to Sell in his
In Talisay-Silay Milling Co. v. Court of First Instance of Negros
name as the new owner of the subdivision. Subsequently, the
Occidental, 48 the court explained what is meant by payment or
corresponding license to sell and development permit were issued.
prepayment of the required indemnity under Article 649 of the
As shown by the Consolidation Subdivision Plan 40 submitted by
Civil Code, as follows:
Orlando Llenado, the names Soledad Ortega/Emmanuel Homes
Subdivision were merely crossed out and, in lieu thereof, the
names Orlando Llenado/Llenado Homes Subdivision were written. . . . Prepayment, as we used the term means
In said subdivision plan which was duly approved by the HSRC, the delivery of the proper indemnity
the Ipapo Access Road was retained. required by law for the damage that might
be incurred by the servient estate in the
event the legal easement is constituted. The
On July 1, 1983, during the pendency of Civil Case No. 6834-M,
fact that a voluntary agreement upon the
Orlando Llenado filed with the HSRC an application for the
extent of compensation cannot be reached
amendment of the original Consolidation Subdivision Plan of the
by the parties involved, is not an
Llenado Homes
impediment to the establishment of such
Subdivision. 41 The proposed amendments, as indicated in Exh.
easement. Precisely, the action of the
"11-A", 42 were: (1) the conversion of Lot 14 of Block 6 into a road
dominant estate against the servient estate
lot, designed to connect with Road Lot 5 of the Floro Homes
should include a prayer for the fixing of the
Subdivision; and, (2) the closing of both ends of Road Lot 3, the
amount which may be due from the former
portion leading to the Ventura Tan Mariano property and the
to the latter.
portion leading to the Ipapo right of way (Adriano Monadero
property), to be converted into saleable residential lots. The first
proposed alteration, the conversion of Lot 14, Block 6 into a road In the case at bench, no proof was presented by private respondent
lot was approved on March 20, Llenado that he complied with this requirement. The complaint for
1984. 43 The access road of the Llenado Homes Subdivision, easement of right of way filed by him in the lower court did not
contain a prayer for the fixing of the amount that he must pay
Floro in the event that the easement of right of way be constituted. temporary ingress/egress with great inconvenience particularly due
Thus, the existence of the second requisite has likewise not been to flood and mud," the Court did not allow the easement because it
established. would run counter to existing jurisprudence that mere convenience
for the dominant estate does not suffice to serve as basis for the
servitude. This ruling was reiterated in Rivera v. Intermediate
There can be no denying that the isolation of the Llenado Homes
Appellate Court  53 and Costabella Corporation v. Court of
Subdivision is the doing of its owner/developer/applicant. It
Appeals. 54
appears that the access road indicated in the Plan of the Emmanuel
Homes Subdivision and the Llenado Homes Subdivision for which
a right of way over the Ipapo property was procured, was merely As borne out by the records of this case, despite the closure of the
for the sake of securing an approval of the proposed development subject road, construction work at Llenado Homes Subdivision
plan. There were no proofs of actual work having been done to continued. The alternative route taken by private respondent is
construct a road, even just a dirt road, over the right of way that admittedly inconvenient because he has to traverse several
would connect Road Lot 3 of the Llenado Homes Subdivision to ricelands and rice paddies belonging to different persons, not to
the MacArthur Highway. Private respondent Llenado admitted that mention that said passage, as found by the trial court, is impassable
the Ipapo riceland was no longer being cultivated and there was during the rainy season. However, private respondent has no one to
already a fence made of adobe wall constructed on it. 49Indications blame but himself for not developing the proposed access road
are that it has already been abandoned as a ricefield. There was no through the Ipapo property.
reason for private respondent's failure to develop the right of way
except the inconvenience and expenses it would cost him. Hence,
Worthy of mention is the trial court 's reason 55 for the denial of the
the third requisite has not been met.
easement of right of way, thus:

If the servitude requested by private respondent Llenado is

. . . While it is true that the conversion of
allowed, other subdivision developers/owners would be
said salable (sic) Lot 14, Block 6 into a
encouraged to hastily prepare a subdivision plan with fictitious
Road Lot has been approved by the Human
provisions for access roads merely for registration purposes.
Settlement Regulatory Commission, such
Thereafter, said developers could abandon their duly approved
approval, however, does not ipso
plans and, for whatever reason, open up another way through
facto connect Road Lot 5 and 4 (Exh. C-1)
another property under the pretext that they have inadequate
of the Floro Park Subdivision in the absence
outlets to a public road or highway. Furthermore, if such practice
of consent and/or approval of the owner of
were tolerated, the very purpose for which Presidential Decree No.
said Floro Park Subdivision. . . . It should be
957 was enacted, that is, to protect subdivision buyers from
emphasized that the end of Road Lot 3 of
unscrupulous subdivision owners/developers who renege on their
Llenado Homes Subdivision facing the
duties to develop their subdivisions in accordance with the duly
MacArthur Highway as per approved
approved subdivision plans, would be defeated.
subdivision plan, subject of the proposed
amendment, has been designated/specified
The Court takes cognizance of the fact that, instead of developing as an access road directly leading to the
the proposed access road, private respondent Llenado applied for MacArthur Highway. It is the shortest route
the conversion of Lot 14 of Block 6 into a road lot to connect it and the road alignment is direct and in a
with Road Lot 5 of the Floro Park Subdivision, citing as reason straight line perpendicular to the MacArthur
therefor, that the amendment sought would create a "more Highway. The disapproval, therefore, of the
adequate and practical passage" from the Llenado Homes closure and consequent conversion of both
Subdivision to the MacArthur National Highway and vice-versa. ends of Road Lot 3 into residential lots, in
The "convenience" of using Road Lots 4 and 5 of the Floro Park effect, maintains Road Lot 3 as an access
Subdivision will not suffice, however, to justify the easement in road of Llenado Homes Subdivision to the
favor of private respondent. main highway. There appears a semblance
of deception if the provision for (the)
proposed access road in the approved
In order to justify the imposition of the servitude of right of way,
subdivision plan of Emmanuel Homes
there must be a real, not a fictitious or artificial necessity for it.
Subdivision, now Llenado Homes
Mere convenience for the dominant estate is not what is required
Subdivision, would not be implemented as it
by law as the basis for setting up a compulsory easement. Even in
would appear that the same was indicated in
the face of a necessity, if it can be satisfied without imposing the
the plans merely for purposes of approval of
servitude, the same should not be imposed. 50 This easement can
the subdivision but not actually to develop
also be established for the benefit of a tenement with an inadequate
and avail of the same was originally
outlet, but not when the outlet is merely inconvenient. Thus, when
intended.
a person has already established an easement of this nature in favor
of his tenement, he cannot demand another, even if the first
passage has defects which make passage impossible, if those It is also worthwhile to observe that on November 29,
defects can be eliminated by proper repairs. 51 1985, the then Minister of Public Works and Highways
found the construction of the concrete culvert across
Palanas Creek illegal in contemplation of Presidential
In the case of Ramos v. Gatchalian, 52 the Court denied access to
Decree No. 296, Letters of Instructions No. 19 and
Sucat Road through Gatchalian Avenue in view of the fact that
Presidential Decree No. 1067 and ordered private
petitioner had a road right of way provided by the Sobrina
respondent herein to remove or demolish the same, to
Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its
be carried out by the Chief Civil Engineer, Bulacan
subdivision plan for the buyers of its lots, notwithstanding that said
Engineering District, at the expense of private
lot was still undeveloped and inconvenient to petitioner. Even if
respondent. 56
Ramos, the petitioner therein, had "to pass through other lots
belonging to other owners, which are grassy and cogonal, as
Failing to establish the existence of the prerequisites under Articles space ended at the left back of Sotero’s store which was made of
649 and 650 of the Civil Code, private respondent Llenado's bid strong materials; that this explained why Yolanda requested a
for a compulsory easement of right of way over Road Lots 4 and 5 detour to the lot of Anastacia and cut an opening of one (1) meter
of the Floro Park Subdivision must fail. 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
It appears, from the records that during the period from March
entitled to a right of way on petitioner’s property since a detour
1983 until the closure of the subject roads on April 7, 1983, private
through it would not make the line straight and would not be the
respondent was allowed to pass thru petitioner's subdivision
route shortest to the public highway. In applying Art. 650 of the
without any agreement on compensation. During the same period,
New Civil Code, respondent Court of Appeals declared that the
the subject roads (Road Lots 4 and 5) were damaged due to the
proposed right of way of Yolanda, which is one (1) meter wide and
trucks and heavy equipment passing thereon. Justice and equity
five (5) meters long at the extreme right of petitioner’s property,
demand that petitioner be compensated for the said damage.
will cause the least prejudice and/or damage as compared to the
Hence, the lower court's decision awarding to petitioner Thirty
suggested passage through the property of Yolanda’ s father which
Thousand Pesos (P30,000.00) as actual and compensatory damages
would mean destroying the sari-sari store made of strong materials.
should be affirmed.
Absent any showing that these findings and conclusion are devoid
of factual support in the records, or are so glaringly erroneous, this
Petitioner should likewise be indemnified for the use of his Court accepts and adopts them. As between a right of way that
property from July 15, 1983 (upon the reopening of the subject would demolish a store of strong materials to provide egress to a
road pursuant to the issuance of a writ of preliminary mandatory public highway, and another right of way which although longer
injunction) until October 16, 1986 (when the writ was lifted). In will only require an avocado tree to be cut down, the second
the absence of a specific provision applicable in the case at bench alternative should be preferred. After all, it is not the main function
as to the amount of proper indemnity, the award of Sixty Thousand of this Court to analyze or weigh the evidence presented all over
Pesos (P60,000.00) as temperate or moderate damages pursuant to again where the petition would necessarily invite calibration of the
Articles 2224 and 2225 of the Civil Code 57 is considered proper whole evidence considering primarily the credibility of witnesses,
and reasonable. 58 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
As regards the claim for attorney's fees, considering that the court is thoroughly backed up by law and the evidence.
petitioner was compelled to file a petition for review
on certiorari before this Court, the amount of Thirty Thousand 2. CIVIL LAW; PROPERTY, OWNERSHIP AND ITS
Pesos (P30,000.00) is just and reasonable. MODIFICATIONS; EASEMENT, DEFINED. — As defined, an
easement is a real right on another’s property, corporeal and
WHEREFORE, this appealed decision of the Court of Appeals is immovable, whereby the owner of the latter must refrain from
SET ASIDE and the decision of the trial court, as herein modified, doing or allowing somebody else to do or something to be done on
is REINSTATED. Costs against private respondent. 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
SO ORDERED. particular is a privilege constituted by covenant or granted by law
to a person or class of persons to pass over another’s property
[G.R. No. 112331. May 29, 1996.] when his tenement is surrounded by realties belonging to others
without an adequate outlet to the public highway. The owner of the
ANASTACIA QUIMEN, Petitioner, v. COURT OF APPEALS dominant estate can demand a right of way through the servient
and YOLANDA Q. OLIVEROS, Respondents. estate provided he indemnifies the owner thereof for the beneficial
use of his property.
Benedicto L. Nanca for Petitioner.
3. ID.; ID.; EASEMENTS; RIGHT OF WAY; CONDITIONS
Armando A. San Antonio for Private Respondent. 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
SYLLABUS
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. 
1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF
THE COURT OF APPEALS REVERSING THE DECISION OF 4. ID.; ID.; ID.; ID.; CRITERION OF LEAST PREJUDICE TO
THE TRIAL COURT, UPHELD ON APPEAL. — But we find no THE SERVIENT ESTATE, CONSTRUED. — Petitioner finally
cogent reason to disturb the ruling of respondent appellate court insists that respondent court erroneously concluded that the right of
granting a right of way to private respondent through petitioner’s way proposed by private respondent is the least onerous to the
property. In fact, as between petitioner Anastacia and respondent parties. We cannot agree. Article 650 of the New Civil Code
Yolanda their agreement has already been rendered moot insofar as explicitly states that the easement of right of way shall be
it concerns the determination of the principal issue herein established at the point least prejudicial to the servient estate and,
presented. The voluntary easement in favor of private respondent, insofar as consistent with this rule, where the distance from the
which petitioner now denies but which the court is inclined to dominant estate to a public highway may be the shortest. The
believe, has in fact become a legal easement or an easement by criterion of least prejudice to the servient estate must prevail over
necessity constituted by law. The trial court found that Yolanda’s the criterion of shortest distance although this is a matter of
property was situated at the back of her father’s property and held judicial appreciation. While shortest distance may ordinarily imply
that there existed an available space of about nineteen (19) meters least prejudice, it is not always so as when there are permanent
long which could conveniently serve as a right of way between the structures obstructing the shortest distance; while on the other
boundary line and the house of Yolanda’s father; that the vacant hand, the longest distance may be free of obstructions and the
easiest or most convenient to pass through. In other words, where wide and nine meters (9) long. Although the pathway leads to the
the easement may be established on any of several tenements municipal road it is not adequate for ingress and egress. The
surrounding the dominant estate, the one where the way is shortest municipal road cannot be reached with facility because the store
and will cause the least damage should be chosen. However, as itself obstructs the path so that one has to pass through the back
elsewhere stated, if these two (2) circumstances do not concur in a entrance and the facade of the store to reach the road.
single tenement, the way which will cause the least damage should
be used, even if it will not be the shortest. 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
DECISION 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
BELLOSILLO, J.: 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
IN EASEMENT OF RIGHT OF WAY that easement where the
way is shortest and will cause least prejudice shall be chosen. But on 5 September 1991 the trial court dismissed the complaint
However, if the two circumstances do not concur in a single for lack of cause of action, explaining that the right of way through
tenement, the way where damage will be least shall be used even if Sotero’s property was a straight path and to allow a detour by
not the shortest route. 1 This is so because least prejudice prevails cutting through Anastacia’s property would no longer make the
over shortest distance. This means that the court is not bound to path straight. Hence the trial court concluded that it was more
establish what is the shortest distance; a longer way may be practical to extend the existing pathway to the public road by
adopted to avoid injury to the servient estate, such as when there removing that portion of the store blocking the path as that was the
are constructions or walls which can be avoided by a round about shortest route to the public road and the least prejudicial to the
way, or to secure the interest of the dominant owner, such as when parties concerned than passing through Anastacia’s property. 5
the shortest distance would place the way on a dangerous decline.
On appeal by respondent Yolanda, the Court of Appeals reversed
Thus we conclude from the succeeding facts: Petitioner Anastacia the lower court and held that she was entitled to a right of way on
Quimen together with her brothers Sotero, Sulpicio, Antonio and petitioner’s property and that the way proposed by Yolanda would
sister Rufina inherited a piece of property situated in Pandi, cause the least damage and detriment to the servient estate. 6 The
Bulacan. They agreed to subdivide the property equally among appellate court however did not award damages to private
themselves, as they did, with the shares of Anastacia, Sotero, respondent as petitioner did not act in bad faith in resisting the
Sulpicio and Rufina abutting the municipal road. The share of claim.
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 Petitioner now comes to us imputing ERROR to respondent Court
designated as Lot. No. 1448-B-2. Adjoining Sotero’s property on of Appeals: (a) in disregarding the agreement of the parties; (b) in
the right are Lots Nos. 1448-B-3 and 1448-B-4 originally owned considering petitioner’s property as a servient estate despite the
by Rufina and Sulpicio, respectively, but which were later acquired fact that it does not abut or adjoin the property of private
by a certain Catalina Santos. Located directly behind the lots of respondent; and, (c) in holding that the one-meter by five-meter
Anastacia and Sotero is the share of their brother Antonio passage way proposed by private respondent is the least prejudicial
designated as Lot No. 1448-B-C which the latter divided into two and the shortest distance to the public road.
(2) equal parts, now Lots Nos. 1448-B-6-A and 1448- B-6-B, each
with an area of 92 square meters. Lot No. 1448-B-6-A is located Incidentally, petitioner denies having promised private respondent
behind Anastacia’s Lot No. 1448-B-1, while Lot No. 1448-B-6-B a right of way. She claims that her agreement with private
is behind the property of Sotero, father of respondent Yolanda. respondent was to provide the latter with a right of way on the
other lot of Antonio Quimen under her administration when it was
In February 1982 Yolanda purchased Lot No. 1448-B-6-A from not yet sold to private Respondent. Petitioner insists that passing
her uncle Antonio through her aunt Anastacia who was then acting through the property of Yolanda’s parents is more accessible to the
as his administratrix. According to Yolanda, when petitioner public road than to make a detour to her property and cut down the
offered her the property for sale she was hesitant to buy as it had avocado tree standing thereon.
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 Petitioner further argues that when Yolanda purchased Lot No.
her adjoining property for P200.00 per square meter. 1448-B-6-B in 1986 the easement of right of way she provided her
(petitioner) was ipso jure extinguished as a result of the merger of
Thereafter, Yolanda constructed a house on the lot she bought ownership of the dominant and the servient estates in one person
using as her passageway to the public highway a portion of so that there was no longer any compelling reason to provide
Anastacia’s property. But when Yolanda finally offered to pay for private respondent with a right of way as there are other
the use of the pathway Anastacia refused to accept the payment. In surrounding lots suitable for the purpose. Petitioner strongly
fact she was thereafter barred by Anastacia from passing through maintains that the proposed right of way is not the shortest access
her property. 2 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
In February 1986 Yolanda purchased the other lot of Antonio P600.00 per year from the sale of the fruits of her avocado tree,
Quimen, Lot No. 1448-B-6-B, located directly behind the property and considering that an avocado has an average life span of
of her parents who provided her a pathway gratis et amore between seventy (70) years, she expects a substantial earning from it. 7
their house, extending about nineteen (19) meters from the lot of
Yolanda behind the sari sari store of Sotero, and Anastacia’s But we find no cogent reason to disturb the ruling of respondent
perimeter fence. The store is made of strong materials and appellate court granting a right of way to private respondent
occupies the entire frontage of the lot measuring four (4) meters through petitioner’s property. In fact, as between petitioner
Anastacia and respondent Yolanda their agreement has already hand, the longest distance may be free of obstructions and the
been rendered moot insofar as it concerns the determination of the easiest or most convenient to pass through. In other words, where
principal issue herein presented. The voluntary easement in favor the easement may be established on any of several tenements
of private respondent, which petitioner now denies but which the surrounding the dominant estate, the one where the way is shortest
court is inclined to believe, has in fact become a legal easement or and will cause the least damage should be chosen. However, as
an easement by necessity constituted by law. 8 elsewhere stated, if these two (2) circumstances do not concur in a
single tenement, the way which will cause the least damage should
As defined, an easement is a real right on another’s property, be used, even if it will not be the shortest. 16 This is the test.
corporeal and immovable, whereby the owner of the latter must
refrain from doing or allowing somebody else to do or something In the trial court, petitioner openly admitted —
to be done on his property, for the benefit of another person or
tenement. 9 It is jus in re aliena, inseparable, indivisible and Q. You testified during your direct examination about this plan,
perpetual, unless extinguished by causes provided by law. A right kindly go over this and please point to us in what portion of this
of way in particular is a privilege constituted by covenant or plan is the house or store of the father of the (plaintiff)?
granted by law 10 to a person or class of persons to pass over
another’s property when his tenement is surrounded by realties A. This one, sir (witness pointed a certain portion located near the
belonging to others without an adequate outlet to the public proposed right of way).
highway. The owner of the dominant estate can demand a right of
way through the servient estate provided he indemnifies the owner x          x          x
thereof for the beneficial use of his property. 11

The conditions sine qua non for a valid grant of an easement of Q. Now, you will agree with me . . . that this portion is the front
right of way are: (a) the dominant estate is surrounded by other portion of the lot owned by the father of the plaintiff and which
immovables without an adequate outlet to a public highway; (b) was (sic) occupied by a store made up of strong materials?
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 A. It is not true, sir.
right of way being claimed is at a point least prejudicial to the
servient estate. 12 Q. What materials does (sic) this store of the father of the plaintiff
made of?
A cursory examination of the complaint of respondent Yolanda for
a right of way 13 readily shows that — A. Hollow blocks and the side is made of wood, sir.
[E]ven before the purchase of the said parcels of land the plaintiff
was reluctant to purchase the same for they are enclosed with x          x          x
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 Q. Just before your brother disposed that 1/2 portion of the lot in
five (5) meters long right of way in the sum of P200.00 per square question, what right of way does (sic) he use in reaching the public
meter to be taken from Anastacia’s lot at the side of a concrete road, kindly point to this sketch that he is (sic) using in reaching
store until plaintiff reach(es) her father’s land, plaintiff was the public road?
induced to buy the aforesaid parcels of land . . . That the aforesaid
right of way is the shortest, most convenient and the least onerous A. In my property, sir.
leading to the road and being used by the plaintiff’s predecessors-
in-interest from the very inception . . . Q. Now you will agree with me . . . the main reason why your
brother is (sic) using this property is because there was a store
The evidence clearly shows that the property of private respondent located near this portion?
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 A. Yes, and according to the father of Yolanda there is no other
right of way as agreed between her and petitioner; that she did not way than this, sir. 17
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 trial court found that Yolanda’s property was situated at the
the ocular inspection report of the clerk of court, more so that the back of her father’s property and held that there existed an
trial court itself declared that" [t]he said properties of Antonio available space of about nineteen (19) meters long which could
Quimen which were purchased by plaintiff Yolanda Quimen conveniently serve as a right of way between the boundary line and
Oliveros were totally isolated from the public highway and there the house of Yolanda’s father; that the vacant space ended at the
appears an imperative need for an easement of right of way to the left back of Sotero’s store which was made of strong materials;
public highway." 15 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)
Petitioner finally insists that respondent court erroneously meters long to serve as her right of way to the public highway. But
concluded that the right of way proposed by private respondent is notwithstanding its factual observations, the trial court concluded,
the least onerous to the parties. We cannot agree. Article 650 of the although erroneously, that Yolanda was not entitled to a right of
New Civil Code explicitly states that the easement of right of way way on petitioner’s property since a detour through it would not
shall be established at the point least prejudicial to the servient make the line straight and would not be the route shortest to the
estate and, insofar as consistent with this rule, where the distance public highway.
from the dominant estate to a public highway may be the shortest.
The criterion of least prejudice to the servient estate must prevail In applying Art. 650 of the New Civil Code, respondent Court of
over the criterion of shortest distance although this is a matter of Appeals declared that the proposed right of way of Yolanda, which
judicial appreciation. While shortest distance may ordinarily imply is one (1) meter wide and five (5) meters long at the extreme right
least prejudice, it is not always so as when there are permanent of petitioner’s property, will cause the least prejudice and/or
structures obstructing the shortest distance; while on the other damage as compared to the suggested passage through the property
of Yolanda’s father which would mean destroying the sari sari property adjacent to that of respondent’s. In 1995, Phil. Orient
store made of strong materials. Absent any showing that these Motors sold its property to San Benito Realty. After the sale, Engr.
findings and conclusion are devoid of factual support in the Rafael Madrid prepared a relocation survey and location plan for
records, or are so glaringly erroneous, this Court accepts and both contiguous properties of respondent and San Benito Realty. It
adopts them. As between a right of way that would demolish a was only then that respondent discovered that the aforementioned
store of strong materials to provide egress to a public highway, and pathway being occupied by petitioners is part of her property.6
another right of way which although longer will only require an
avocado tree to be cut down, the second alternative should be
Through her lawyer, respondent immediately demanded that
preferred. After all, it is not the main function of this Court to
petitioners demolish the structure constructed by them on said
analyze or weigh the evidence presented all over again where the
pathway without her knowledge and consent. As her letter dated 18
petition would necessarily invite calibration of the whole evidence
February 1995 addressed to petitioners went unheeded, the former
considering primarily the credibility of witnesses, existence and
referred the matter to the Barangay for conciliation proceedings,
relevancy of specific surrounding circumstances, their relation to
but the parties arrived at no settlement. Hence, respondent filed
each other, and the probabilities of the situation. 18 In sum, this
this complaint with the RTC in Civil Case No. Q-95-25159,
Court finds that the decision of respondent appellate court is
seeking the demolition of the structure allegedly illegally
thoroughly backed up by law and the evidence.
constructed by petitioners on her property. Respondent asserted in
her complaint that petitioners have an existing right of way to a
WHEREFORE, no reversible error having been committed by
public highway other than the current one they are using, which
respondent Court of Appeals, the petition is DENIED and the
she owns. She prayed for the payment of damages.7
decision subject of review is AFFIRMED. Costs against petitioner.

SO ORDERED In support of the complaint, respondent presented TCT No. RT-

56958 (100547) covering the property denominated as Lot 1-B in
the name of Concepcion de la Peña, mother of petitioner herein
Alfredo de la Cruz. The aforesaid TCT reveals that a portion of Lot
G.R. No. 137882             February 04, 2005
1-B, consisting of 85 square meters and denominated as Lot 1-B-2,
is being occupied by petitioners. To prove that petitioners have an
SPS. ELIZABETH DE LA CRUZ and ALFREDO DE LA existing right of way to a public highway other than the pathway
CRUZ, petitioners,  which respondent owns, the latter adduced in evidence a copy of
vs. the plan of a subdivision survey for Concepcion de la Peña and
OLGA RAMISCAL represented by ENRIQUE Felicidad Manalo prepared in 1965 and subdivision plan for
MENDOZA, Respondent. Concepcion de la Peña prepared in 1990. These documents
establish an existing 1.50-meter wide alley, identified as Lot 1-B-1,
on the lot of Concepcion de la Peña, which serves as passageway
DECISION from the lot being occupied by petitioners (Lot 1-B-2), to Boni
Serrano Avenue.8
CHICO-NAZARIO, J.:
On the other hand, petitioners, in their Answer, admitted having
This petition for review assails (1) the Resolution1 dated 11 used a 1.10-meter wide by 12.60-meter long strip of land on the
September 1998 of the Court of Appeals which dismissed the northern side of respondent’s property as their pathway to and
appeal filed by petitioners from the Decision dated 31 July 1997 of from 18th Avenue, the nearest public highway from their property,
the Regional Trial Court (RTC), Branch 91, Quezon City, for but claimed that such use was with the knowledge of respondent.9
Demolition of Illegally Constructed Structure, and (2) the
Resolution2 dated 05 March 1999 denying the subsequent motion Petitioners alleged in their Answer that in 1976, respondent
for reconsideration. initiated the construction on her property of a motor shop known as
Phil. Orient Motors and they, as well as the other occupants of the
The following facts, as recapitulated by the trial court, are property at the back of respondent’s land, opposed the construction
undisputed. of the perimeter wall as it would enclose and render their property
without any adequate ingress and egress. They asked respondent to
give them a 1.50-meter wide and 40.15-meter long easement on the
Respondent Olga Ramiscal is the registered owner of a parcel of eastern side of her property, which would be reciprocated with an
land located at the corner of 18th Avenue and Boni Serrano equivalent 1.50-meter wide easement by the owner of another
Avenue, Murphy, Quezon City, covered by Transfer Certificate of adjacent estate. Respondent did not want to give them the
Title (TCT) No. 300302 of the Register of Deeds for Quezon easement on the eastern side of her property, towards Boni Serrano
City.3 Petitioners SPS. ELIZABETH and ALFREDO DE LA Avenue but, instead, offered to them the said 1.10-meter wide
CRUZ are occupants of a parcel of land, with an area of eighty- passageway along the northern side of her property towards 18th
five (85) square meters, located at the back of Ramiscal’s property, Avenue, which offer they had accepted. 10
and covered by TCT No. RT-56958 (100547) in the name of
Concepcion de la Peña, mother of petitioner Alfredo de la Cruz.4
Petitioners additionally averred in their Answer that they were
made to sign a document stating that they waived their right to ask
The subject matter of this case is a 1.10-meter wide by 12.60-meter for an easement along the eastern side of respondent’s property
long strip of land owned by respondent which is being used by towards Boni Serrano Avenue, which document was among those
petitioners as their pathway to and from 18th Avenue, the nearest submitted in the application for a building permit by a certain
public highway from their property. Petitioners had enclosed the "Mang Puling,"11 the person in charge of the construction of the
same with a gate, fence, and roof.5 motor shop. That was why, according to petitioners, the perimeter
wall on respondent’s property was constructed at a distance of
In 1976, respondent leased her property, including the building 1.10-meters offset and away from respondent’s property line to
thereon, to Phil. Orient Motors. Phil. Orient Motors also owned a provide a passageway for them to and from 18th Avenue. They
maintained in their Answer that respondent knew all along of the The issues rivet on the adjective as well as on the substantive law,
1.10-meter pathway and had, in fact, tolerated their use thereof. specifically: (1) whether or not the Court Appeals erred in
dismissing the appeal filed by petitioners for failure to file
appellants’ brief on time, (2) whether or not petitioners are entitled
On 31 July 1997, the RTC handed down a decision,12 giving
to a voluntary or legal easement of right of way, and (3) whether or
probative weight to the evidence adduced by respondent. The
not respondent is barred by laches from closing the right of way
decretal portion enunciates:
being used by petitioners.

Plaintiff’s claim for moral damages must be denied as no evidence

On the first issue, petitioners assert positively that the petition was
in support thereof was presented at all by her. Consequently,
filed on time on 30 April 1998, which is well within the 45-day
plaintiff is not entitled to exemplary damages.13 However, for
period reckoned from 17 March 1998, when the secretary of their
having been compelled to file this suit and incur expenses to
former counsel received the notice to file appeal.
protect her interest, plaintiff is entitled to an attorney’s fees in the
amount of P10,000.00.
Petitioners’ arguments fail to persuade us.
WHEREFORE, premises considered, judgment is hereby rendered
in favor of the plaintiff and ordering the defendants to demolish the Press earnestly as they would, the evidence on record,
structure built by them along the pathway on the eastern side of nevertheless, evinces contrariety to petitioners’ assertion that they
plaintiff’s property towards 18th Avenue, Murphy, Quezon City have beat the 45-day period to file appellants’ brief before the
and to pay [the] plaintiff the amount of P10,000.00 as and by way appellate court. It is clear from the registry return receipt card 17 that
of attorney’s fees. the Notice to File Brief was received on 12 March 1998 by one
May Tadeo from the Office of Atty. Judito Angelo C. Tadeo,
petitioners’ previous counsel. Thus, on 30 April 1998, when their
Costs against the defendants.14
new counsel entered his appearance and at the same time filed an
appellants’ brief, the 45 days have run out. For failure of
The Court of Appeals dismissed the appeal filed by petitioners petitioners to file brief within the reglementary period, the Court of
from the RTC decision for failure to file brief within the Appeals correctly dismissed said appeal pursuant to Section 1(b),
reglementary period. The fallo of the Court of Appeals decision, Rule 50 of the 1997 Rules of Civil Procedure.18
provides:
Neither can the members of this Court lend credence to petitioners’
WHEREFORE, for failure of the defendants-appellants to file brief contention that the written note of Atty. Tadeo’s office on the face
within the reglementary period, the instant appeal is hereby of the Order reads that the said office received it on 17 March
DISMISSED pursuant to Section 1(e), Rule 50 of the 1997 Rules 1998.19
of Civil Procedure.
It is a rule generally accepted that when the service is to be made
The Compliance/Explanation filed by defendants-appellants, by registered mail, the service is deemed complete and effective
submitting the Letter-withdrawal of Atty. Judito Tadeo addressed upon actual receipt by the addressee as shown by the registry
to the said defendants-appellants is NOTED. return card.20 Thus, between the registry return card and said
written note, the former commands more weight. Not only is the
former considered as the official record of the court, but also as
Let a copy of this Resolution be likewise served on defendants- such, it is presumed to be accurate unless proven otherwise, unlike
appellants themselves.15 a written note or record of a party, which is often self-serving and
easily fabricated. Further, this error on the part of the secretary of
The motion for reconsideration filed by petitioners met the same the petitioners’ former counsel amounts to negligence or
fate in the Resolution of the Court of Appeals dated 05 March incompetence in record-keeping, which is not an excuse for the
1999. delay of filing.

Petitioners now lay their cause before us through the present Petitioners’ justification that their former counsel belatedly
petition for review, raising the following issues: transmitted said order to them only on 20 March 1998 is not a
good reason for departing from the established rule. It was the
responsibility of petitioners and their counsel to devise a system
A. WHETHER OR NOT THE DENIAL OF THE COURT OF for the receipt of mail intended for them.21 Rules on procedure
APPEALS OF THE PETITIONERS’ MOTION FOR cannot be made to depend on the singular convenience of a party.
RECONSIDERATION OF ITS RESOLUTION DATED
SEPTEMBER 11, 1998 IS SANCTIONED BY THE RULINGS
AND LEGAL PRONOUNCEMENTS OF THE HONORABLE Petitioners next take the stand that even assuming the brief was
SUPREME COURT? filed late, the Court of Appeals still erred in dismissing their
petition in light of the rulings of this Court allowing delayed
appeals on equitable grounds.22 Indeed, in certain special cases and
B. WHETHER OR NOT THE PETITIONERS ARE for compelling causes, the Court has disregarded similar technical
NONETHELESS ENTITLED TO A LEGAL EASEMENT OF flaws so as to correct an obvious injustice made. 23 In this case,
RIGHT OF WAY, ASSUMING NO VOLUNTARY RIGHT OF petitioners, however, failed to demonstrate any justifiable reasons
WAY WAS GRANTED THEM BY THE RESPONDENT? or meritorious grounds for a liberal application of the rules. We
must remind petitioners that the right to appeal is not a
C. WHETHER OR NOT OPERATIVE EQUITABLE PRINCIPLE constitutional, natural or inherent right - it is a statutory privilege
OF LACHES TO BAR THE RESPONDENT FROM DEPRIVING and of statutory origin and, therefore, available only if granted or
THE PETITIONERS CONTINUED USE OF THE SAID RIGHT provided by statute.24 Thus, it may be exercised only in the manner
OF WAY?16 prescribed by, and in accordance with, the provisions of the law.25
Anent the second issue, an easement or servitude is a real right, Motors, respondent’s lessee, which tolerated petitioners’ use of
constituted on the corporeal immovable property of another, by said pathway.30
virtue of which the owner has to refrain from doing, or must allow
someone to do, something on his property, for the benefit of
Likewise futile are petitioners’ attempts to show that they are
another thing or person.26 The statutory basis for this right is
legally entitled to the aforesaid pathway under Article 649 of the
Article 613, in connection with Article 619, of the Civil Code,
Civil Code, to wit:
which states:

Art. 649. The owner, or any person who by virtue of a real right
Art. 613. An easement or servitude is an encumbrance imposed
may cultivate or use any immovable, which is surrounded by other
upon an immovable for the benefit of another immovable
immovables pertaining to other persons, and without adequate
belonging to a different owner.
outlet to a public highway, is entitled to demand a right of way
through the neighboring estates, after payment of the proper
The immovable in favor of which the easement is established is indemnity.
called the dominant estate; that which is subject thereto, the
servient estate.
The conferment of a legal easement of right of way under Article
649 is subject to proof of the following requisites: (1) it is
Art. 619. Easements are established either by law or by the will of surrounded by other immovables and has no adequate outlet to a
the owners. The former are called legal and the latter voluntary public highway; (2) payment of proper indemnity; (3) the isolation
easements. is not the result of its own acts; (4) the right of way claimed is at
the point least prejudicial to the servient estate; and (5) to the
extent consistent with the foregoing rule, where the distance from
Did respondent voluntarily accord petitioners a right of way?
the dominant estate to a public highway may be the shortest. 31 The
first three requisites are not obtaining in the instant case.
We rule in the negative. Petitioners herein failed to show by
competent evidence other than their bare claim that they and their
Contrary to petitioners’ contention, the trial court found from the
tenants, spouses Manuel and Cecilia Bondoc and Carmelino
records that Concepcion de la Peña had provided petitioners with
Masangkay, entered into an agreement with respondent, through
an adequate ingress and egress towards Boni Serrano Avenue. The
her foreman, Mang Puling, to use the pathway to 18th Avenue,
trial court, gave weight to TCT No. RT-56958 (100547) covering
which would be reciprocated with an equivalent 1.50-meter wide
the property denominated as Lot 1-B in the name of Concepcion de
easement by the owner of another adjacent estate. The hands of
la Peña, mother of petitioner herein Alfredo de la Cruz. Said TCT
this Court are tied from giving credence to petitioners’ self-serving
indicates that a portion of Lot 1-B, consisting of 85 square meters
claim that such right of way was voluntarily given them by
and denominated as Lot 1-B-2, is the one being occupied by
respondent for the following reasons:
petitioners.32 In this connection, a copy of the plan of a subdivision
survey for Concepcion de la Peña and Felicidad Manalo prepared
First, petitioners were unable to produce any shred of document in 1965 and subdivision plan for Concepcion de la Peña prepared
evidencing such agreement. The Civil Code is clear that any in 1990 revealed an existing 1.50-meter wide alley, identified as
transaction involving the sale or disposition of real property must Lot 1-B-1, on the lot of Concepcion de la Peña, which serves as
be in writing.27 Thus, the dearth of corroborative evidence opens passageway from the lot being occupied by petitioners (Lot 1-B-2)
doubts on the veracity of the naked assertion of petitioners that to Boni Serrano Avenue.33 During the trial, petitioner Elizabeth de
indeed the subject easement of right of way was a voluntary grant la Cruz herself admitted knowledge of the existence of the
from respondent. Second, as admitted by the petitioners, it was subdivision plan of Lot 1-B prepared for Concepcion de la Peña by
only the foreman, Mang Puling, who talked with them regarding Engr. Julio Cudiamat in 1990. The Subdivision Plan subdivided
said pathway on the northern side of respondent’s property. Thus, Lot 1-B into three portions, namely:
petitioner Elizabeth de la Cruz testified that she did not talk to
respondent regarding the arrangement proposed to them by Mang
(1) Lot 1-B-1, which is an existing alley, consisting of 59.60
Puling despite the fact that she often saw respondent. 28 It is,
square meters, towards Boni Serrano Avenue;
therefore, foolhardy for petitioners to believe that the alleged
foreman of respondent had the authority to bind the respondent
relating to the easement of right of way. Third, their explanation (2) Lot 1-B-2, consisting of 85.20 square meters, which is being
that said Mang Puling submitted said agreement to the Quezon occupied by petitioners; and
City Engineer’s Office, in connection with the application for a
building permit but said office could no longer produce a copy
(3) Lot 1-B-3, consisting also of 85.20 square meters, which is
thereof, does not inspire belief. As correctly pointed out by the trial
being occupied by the sister of petitioner Alfredo dela Cruz.34
court,29 petitioners should have requested a subpoena duces
tecum from said court to compel the Quezon City Engineer’s
Office to produce said document or to prove that such document is From petitioner Elizabeth de la Cruz’s own admission, Lot 1-B-1
indeed not available. was intended by the owner, Concepcion de la Peña, to serve as an
access to a public highway for the occupants of the interior portion
of her property.35 Inasmuch as petitioners have an adequate outlet
The fact that the perimeter wall of the building on respondent’s
to a public highway (Boni Serrano Avenue), they have no right to
property was constructed at a distance of 1.10 meters away from
insist on using a portion of respondent’s property as pathway
the property line, does not by itself bolster the veracity of
towards 18th Avenue and for which no indemnity was being paid
petitioners’ story that there was indeed such an agreement. Further,
by them.
as noted by the trial court, it was Atty. Federico R. Onandia,
counsel of Phil. Orient Motors, who wrote petitioners on 25
August 1994 advising them that his client would close the pathway Petitioner Elizabeth de la Cruz claimed before the trial court that
along 18th Avenue, thereby implying that it was Phil. Orient although there was indeed a portion of land allotted by Concepcion
de la Peña to serve as their ingress and egress to Boni Serrano
Avenue, petitioners can no longer use the same because de la Peña opportunity to sue; (c) lack of knowledge or notice by defendant
had constructed houses on it. As found by the trial court, the that the complainant will assert the right on which he bases his
isolation of petitioners’ property was due to the acts of Concepcion suit; and (d) injury or prejudice to the defendant in the event the
de la Peña, who is required by law to grant a right of way to the relief is accorded to the complainant.39
occupants of her property. In the trial court’s rationale:
The second and third elements, i.e., knowledge of defendant's acts
…Article 649 of the Civil Code provides that the easement of right and delay in the filing of such suit are certainly lacking here. As
of way is not compulsory if the isolation of the immovable is due borne by the records, it was only in 1995 that respondent found out
to the proprietor’s own acts. To allow defendants access to that the pathway being used by petitioners was part of her property
plaintiff’s property towards 18th Avenue simply because it is a when a relocation survey and location plan of her property and the
shorter route to a public highway, despite the fact that a road right adjacent land bought by San Benito Realty were prepared. 40 She
of way, which is even wider, although longer, was in fact provided immediately demanded petitioners to demolish the structure
for them by Concepcion de la Peña towards Boni Serrano Avenue illegally constructed by them on her property without her
would ignore what jurisprudence has consistently maintained knowledge and consent. As her letter dated 18 February 1995
through the years regarding an easement of right of way, that addressed to petitioners fell on deaf ears, and as no settlement was
"mere convenience for the dominant estate is not enough to serve arrived at by the parties at the Barangaylevel, respondent
as its basis. To justify the imposition of this servitude, there must seasonably filed her complaint with the RTC in the same year.41
be a real, not a fictitious or artificial necessity for it."… In
Francisco vs. Intermediate Appellate Court, 177 SCRA 527, it was
Respondent, in her Comment,42 brings the Court’s attention to
likewise held that a person who had been granted an access to the
petitioners’ conversion of the pathway, subject matter of this case,
public highway through an adjacent estate cannot claim a similar
into a canteen and videoke bar, as shown by the pictures43 showing
easement in an alternative location if such existing easement was
the property bearing the signage,
rendered unusable by the owner’s own act of isolating his property
"FRED’S44 CANTEEN/VIDEOKE KAMBINGAN." Respondent,
from a public highway, such as what Concepcion de la Peña
likewise, complains in her Comment about the structures installed
allegedly did to her property by constructing houses on the 1.50
by petitioners that encroached on respondent’s property line as a
meter wide alley leading to Boni Serrano Avenue. And, if it were
result of the commercial activities by petitioners on the disputed
true that defendants had already bought Lot 1-B-2, the portion
property. Petitioners have implicitly admitted this conversion of
occupied by them, from Concepcion de la Peña, then the latter is
the property’s use by their silence on the matter in their Reply 45 and
obliged to grant defendants a right of way without indemnity.36
Memorandum.46 Such conversion is a telltale sign of petitioners’
veiled pecuniary interest in asserting a right over the litigated
We hasten to add that under the above-quoted Article 649 of the property under the pretext of an innocuous claim for a right of
Civil Code, it is the owner, or any person who by virtue of a real way.
right may cultivate or use any immovable surrounded by other
immovable pertaining to other persons, who is entitled to demand a
Viewed from all angles, from the facts and the law, the Court finds
right of way through the neighboring estates. In this case,
no redeeming value in petitioners’ asseverations that merit the
petitioners fell short of proving that they are the owners of the
reversal of the assailed resolutions.
supposed dominant estate. Nor were they able to prove that they
possess a real right to use such property. The petitioners claim to
have acquired their property, denominated as Lot 1-B-2, from WHEREFORE, the instant petition is DENIED. The Resolutions
Concepcion de la Peña, mother of defendant Alfredo de la Cruz, dated 11 September 1998 and 5 March 1999 of the Court of
who owns Lot 1-B-3, an adjacent lot. However, as earlier noted, Appeals in CA-G.R. SP No. 68216 are AFFIRMED. The Decision
the trial court found that the title to both lots is still registered in dated 31 July 1997 of the Regional Trial Court is likewise
the name of Concepcion de la Peña under TCT No. RT-56958 UPHELD. Costs against petitioners.
(100547).37 Neither were petitioners able to produce the Deed of
Sale evidencing their alleged purchase of the property from de la
SO ORDERED.
Peña. Hence, by the bulk of evidence, de la Peña, not petitioners, is
the real party-in-interest to claim a right of way although, as
explained earlier, any action to demand a right of way from de la
Peña’s part will not lie inasmuch as by her own acts of building
houses in the area allotted for a pathway in her property, she had
caused the isolation of her property from any access to a public
highway.

On the third issue, petitioners cannot find sanctuary in the

equitable principle of laches under the contention that by sleeping
on her right to reclaim the pathway after almost twenty years,
respondent has, in effect, waived such right over the same. It is not
just the lapse of time or delay that constitutes laches. The essence
of laches is the failure or neglect, for an unreasonable and
unexplained length of time, to do that which, through due
diligence, could or should have been done earlier, thus giving rise
to a presumption that the party entitled to assert it had either
abandoned or declined to assert it.38

The essential elements of laches are: (a) conduct on the part of the
defendant, or of one under whom he claims, giving rise to the
situation complained of; (b) delay in asserting complainant’s rights
after he had knowledge of defendant’s acts and after he has had the