[G.R. No. L-37409. May 23, 1988.] NICOLAS VALISNO, plaintiff-appellant, vs. FELIPE ADRIANO, defendant-appellee.

Honorio Valisno Garcia I for plaintiff-appellant. Felipe K. Medina for defendant-appellee. DECISION

GRIO-AQUINO, J p: This case was certified to this Court by the Court of Appeals in a resolution dated August 10, 1973, the sole issue being a question of law and beyond its jurisdiction to decide. Admitted by the parties in their pleadings and established during the trial on the merits are the following material facts: On June 20, 1960, the plaintiff-appellant file against the defendant-appellee an action for damages docketed as Civil Case No. 3472 in the Court of First Instance of Nueva Ecija. The complaint alleged that the plaintiff is the absolute owner and actual possessor of a 557,949square-meter parcel of land in La Fuente, Santa Rosa, Nueva Ecija, and more particularly described in his Transfer Certificate of Title No. NT-16281. The plaintiff-appellant Valisno bought the land from the defendant-appellee's sister, Honorata Adriano Francisco, on June 6, 1959. (Deed of Absolute Sale, Exh. "A".) The land which is planted with watermelon, peanuts, corn, tobacco, and other vegetables adjoins that of the appellee Felipe Adriano on the bank of the Pampanga River. Both parcels of land had been inherited by Honorata Adriano Francisco and her brother, Felipe Adriano, from their father, Eladio Adriano. At the time of the sale of the land to Valisno, the land was irrigated by water from the Pampanga River through a canal about seventy (70) meters long, traversing the appellee's land. On December 16, 1959, the appellee levelled a portion of the irrigation canal so that the appellant was deprived of the irrigation water and prevented from cultivating his 57-hectare land. The appellant filed in the Bureau of Public Works and Communications a complaint for deprivation of water rights. A decision was rendered on March 22, 1960 ordering Adriano to reconstruct the irrigation canal, "otherwise judicial action shall be taken against him under the provisions of Section 47 of Act 2152 (the Irrigation Act), as amended." Instead of restoring the irrigation canal, the appellee asked for a reinvestigation of the case by the Bureau of Public Works and Communications. A reinvestigation was granted. LLphil In the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expense because his need for water to irrigate his watermelon fields was urgent. On June 20, 1960, he filed a complaint for damages in the Court of First Instance (now Regional Trial Court) of Nueva Ecija (Civil Case No. 3472) claiming that he suffered damages amounting to P8,000 when he failed to plant his fields that year (1960) for lack of irrigation water, P800 to reconstruct the canal on defendant Adriano's land, and P1,500 for attorney's fees and the costs of suit.

On October 25, 1961, the Secretary of Public Works and Communications reversed the Bureau's decision by issuing a final resolution dismissing Valisno's complaint. The Secretary held that Eladio Adriano's water rights which had been granted in 1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation canal collapsed. His non-use of the water right since then for a period of more than five years extinguished the grant by operation of law, hence the water rights did not form part of his hereditary estate which his heirs partitioned among themselves. Valisno, as vendee of the land which Honorata received from her father's estate did not acquire any water rights with the land purchased. In his answer to the damage suit (Civil Case No. 3472), the defendant Felipe Adriano admitted that he levelled the irrigation canal on his land, but he averred: that neither his late father nor his sister Honorata possessed water rights for the land which she sold to the appellant; that he (the appellee) applied for water rights for his land in 1956 and obtained the same in 1958; and that he had a perfect right to level his land for his own use because he merely allowed his sister to use his water rights when she still owned the adjacent land. He set up a counterclaim for P3,000 as damages incurred by him in levelling the land on which the appellant dug an irrigation canal, P2,000 as actual damages, P3,000 as attorney's fees, and expenses of litigation. In a decision dated April 21, 1966, the trial court held that the plaintiff had no right to pass through the defendant's land to draw water from the Pampanga River. It pointed out that under Section 4 of the Irrigation Law, controversies between persons claiming a right to water from a stream are within the jurisdiction of the Secretary of Public Works and his decision on the matter is final, unless an appeal is taken to the proper court within thirty days. The court may not pass upon the validity of the decision of the Public Works Secretary collaterally. Furthermore, there was nothing in the plaintiff's evidence to show that the resolution was not valid. It dismissed the complaint and counterclaim. The plaintiff's motion for reconsideration of the decision was denied by the trial court. The plaintiff appealed to the Court of Appeals which certified the case to Us upon the legal question of whether the provisions of the Irrigation Act (Act No. 2152) or those of the Civil Code should apply to this case. LLpr The plaintiff-appellant argues that while the trial court correctly held that the Secretary of Public Works may legally decide who between the parties is entitled to apply for water rights under the Irrigation Act, it erred in ruling that the Secretary has authority to hear and decide the plaintiff's claim for damages for the defendant's violation of his (plaintiff's) right to continue to enjoy the easement of aqueduct or water through the defendant's land under Articles 642, 643, and 646 of the Civil Code, which provide: "Article 642.Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend. "Article 643.One desiring to make use of the right granted in the preceding article is obliged: "(1)To prove that he can dispose of the water and that it is sufficient for the use for which it is intended; "(2)To show that the proposed right of way is the most convenient and the least onerous to third persons; "(3)To indemnify the owner of the servient estate in the manner

determined by the laws and regulations. "Article 646.For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours." The existence of the irrigation canal on defendant's land for the passage of water from the Pampanga River to Honorata's land prior to and at the time of the sale of Honorata's land to the plaintiff was equivalent to a title for the vendee of the land to continue using it, as provided in Article 624 of the Civil Code: "Article 624.The existence of an apparent sign of easement between two estates, established or maintained by the owner of both shall be considered should either of them be alienated, as a title in order that the easement may continue actively and passively unless at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons" (Civil Code) This provision was lifted from Article 122 of the Spanish Law of Waters which provided: prcd "Article 122.Whenever a tract of irrigated land which previously received its waters from a single point is divided through inheritance, sale or by virtue of some other title, between two or more owners, the owners of the higher estates are under obligation to give free passage to the water as an easement of conduit for the irrigation of the lower estates, and without right to any compensation therefore unless otherwise stipulated in the deed of conveyance." (Art. 122, Spanish Law of Waters of August 3, 1866.) No enlightened concept of ownership can shut out the idea of restrictions thereon, such as easements. Absolute and unlimited dominion is unthinkable, inasmuch as the proper enjoyment of property requires mutual service and forbearance among adjoining estates (Amor vs. Florentino, 74 Phil. 403). As indicated in the decision dated March 22, 1960 of the Bureau of Works "the principal issue involved in this case falls under the subject of servitude of waters which are governed by Article 648 of the new Civil Code and the suppletory laws mentioned in the cases of Lunod vs. Meneses (11 Phil. 128) and Osmea vs. Camara (C.A. 380 62773) which are the irrigation law and the Spanish Law of Waters of August 3, 1866, specifically Article 122 thereof. The deed of sale in favor of Valisno included the "conveyance and transfer of the water rights and improvements" appurtenant to Honorata Adriano's property. By the terms of the Deed of Absolute Sale, the vendor Honorata Adriano Francisco sold, ceded, conveyed and transferred to Dr. Nicolas Valisno all "rights, title, interest and participations over the parcel of land abovedescribed, together with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge 5001500 GPM, with Serial No. 5415812 and one (1) set of suction pipe and discharge of pipe with elbow, nipples, flanges and footvalves," and the water rights and such other improvements appertaining to the property subject of this sale. According to the appellant, the water right was the primary consideration for his purchase of Honorata's property, for without it the property would be unproductive.

Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant to a parcel of land, pass with the conveyance of the land, although not specifically mentioned in the conveyance. The purchaser's easement of necessity in a water ditch running across the grantor's land cannot be defeated even if the water is supplied by a third person (Watson vs. French, 112 Me 371, 19 C.J. 868-897). The fact that an easement by grant may also have qualified as an easement of necessity does not detract from its permanency as property right, which survives the determination of the necessity (Benedicto vs. CA, 25 SCRA 145). cdll As an easement of waters in favor of the appellant has been established, he is entitled to enjoy it free from obstruction, disturbance or wrongful interference (19 CJ 984), such as the appellee's act of levelling the irrigation canal to deprive him of the use of water from the Pampanga River. WHEREFORE, the appealed decision is set aside, and a new one is entered ordering the appellee to grant the appellant continued and unimpeded use of the irrigation ditch traversing his land in order to obtain water from the Pampanga River to irrigate appellant's land. Let the records of this case be remanded to the court a quo for the reception of evidence on the appellant's claim for damages. SO ORDERED.

[G.R. No. L-10619. February 28, 1958.] LEOGARIO RONQUILLO, ET AL., plaintiffs-appellants, vs. JOSE ROCO, as Administrator of VICENTE ROCO Y DOMINGUEZ, ET AL., defendants-appellees.

Moises B. Cruz for appellants. Vicente Roco, Jr. for appellees. SYLLABUS 1.EASEMENTS; CLASSIFIED AND HOW THEY ARE ACQUIRED. Under the Old as well as the New Civil Code, easements may be continuous or discontinuous (intermittent), apparent or non-apparent, discontinuous being those used at more or less long intervals and which depend upon acts of man (Articles 532 and 615 of the Old and New Civil Codes, respectively). Continuous and apparent easements are acquired either by title or prescription, continuous non-apparent easements and discontinuous ones whether apparent or not, may be acquired only by virtue of a title. Articles 537 and 539, and 620 and 622 of the Old and New Civil Codes respectively.) 2.ID.; EASEMENT OF RIGHT OF WAY MAY NOT BE ACQUIRED THROUGH PRESCRIPTION. Under the provisions of Articles 537 and 539, and 620 and 622 of the Old and New Civil Codes, respectively, the easement of right of way may not be acquired through prescription. DECISION

MONTEMAYOR, J p: Involving as it does only a question of law, the present appeal from the order of the Court of First Instance of Camarines Sur, dated March 6, 1955, dismissing the amended and supplemental complaint of plaintiffs on motion of defendants that it did not state a cause of action, was taken directly to this Court. The facts and the issue involved in the appeal are well and correctly stated in the appealed order, the pertinent portion of which we are reproducing and making our own: "The amended and supplemental complaint alleges that the plaintiffs have been in the continuous and uninterrupted use of a road or passage way which traversed the land of the defendants and their predecessors in interest, in going to Igualdad Street and the market place of Naga City, from their residential land and back, for more than 20 years; that the defendants and the tenants of Vicente Roco, the predecessors in interest of the said defendants have long recognized and respected the private legal easement of road right of way of said plaintiffs; that on May 12, 1953, the defendants Jose Roco thru his codefendants, Raymundo Martinez and their men with malice aforethought and with a view to obstructing the plaintiffs' private legal easement over the property of the late Vicente Roco, started constructing a chapel in the middle of the said right of way construction actually impeded,

obstructed and disturbed the continuous exercise of the rights of the plaintiffs over said right of way; that on July 10, 1954 the new defendants Natividad Roco and Gregorio Miras, Jr. with the approval of the defendant, Jose Roco and with the help of their men and laborers, by means of force, intimidation, and threats, illegally and violently planted wooden posts, fenced with barbed wire and closed hermitically the road passage way and their right of way in question against their protests and opposition, thereby preventing them from going to or coming from their homes to Igualdad Street and the public market of the City of Naga. "It is very clear from the allegations of the plaintiffs in their amended and supplemental complaint, that they claim to have acquired the easement of right of way over the land of the defendants and the latter's predecessors in interest, Vicente Roco, thru prescription by their continuous and uninterrupted use of a narrow strip of land of the defendants as passage way or road in going to Igualdad Street and the public market of Naga City, from their residential land or houses, and return. "The only question therefore to be determined in this case, is whether an easement of right of way can be acquired thru prescription." The dismissal was based on the ground that an easement of right of way though it may be apparent is, nevertheless, discontinuous or intermittent and, therefore, cannot be acquired through prescription, but only by virtue of a title. Under the Old as well as the New Civil Code, easements may be Continuous or discontinuous (intermittent), apparent or nonapparent, discontinuous being those used at more or less long intervals and which depend upon acts of man (Articles 532 and 615 of the Old and New Civil Codes, respectively). Continuous and apparent easements are acquired either by title or prescription, continuous non-apparent easements and discontinuous ones whether apparent or not, may be acquired only by virtue of a title (Articles 537 and 539, and 620 and 622 of the Old and New Civil Codes, respectively). Both Manresa and Sanchez Roman are of the opinion that the easement of right of way is a discontinuous one: "En cambio, las servidumbres discontinuos se ejercitan por un hecho del hombre, y precisamente por eso son y tienen que ser discontinuas, porque es imposible fisicamente que su uso sea incesante. Asi, la servidumbre de paso es discontinua, porque no es posible que el hombre est pasando continuamente por el camino, vereda o senda de que se trate." (4 Manresa, Codigo Civil Espaol, 5th ed., p. 529). . . . "5 Por razon de los modos de disfrutar las servidumbres, en continuas y discontinuas (1). Las continuas son aquellas cuyo uso es o puede ser incesante, sin la intervencion de ningun hecno del hombre, como son las de luces y otras de la misma especie; y las discontinuas, las que se usan intervalos, ms o menos largos, y dependen de actos del hombre, como las de senda, carrera y otras de esta clase." (3 Sanches Roman, Derecho Civil, p. 488). Under the provisions of the Civil Code, old and new, particularly the articles thereof aforecited, it would therefore appear that the easement of right of way may not be acquired through prescription. Even Article 1959 of the Old Civil Code providing for prescription of ownership and other real rights in real property, excludes therefrom the exception established by Article 539, referring to discontinuous easements, such as,

easement of right of way. (Bargayo vs. Camumot, 40 Phil., 857, 867). In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point in issue was whether or not vested rights in a right of way can be acquired through user from time immemorial, this Court said: "It is evident, therefore, that no vested right by user from time immemorial had been acquired by plaintiffs at the time the Civil Code took effect. Under that Code (Article 539) no discontinuous easement could be acquired by prescription in any event." However, in the case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil., 545, this same Tribunal held that the continued use by the public of a path over land adjoining the Catholic church in going to and from said church through its side door, has given the church the right to such use by prescription, and that because of said use by the public, an easement of right of way over said land has been acquired by prescription, not only by the church, but also by the public, which without objection or protest on the part of the owner of said land, had continually availed itself of the easement. The minority of which the writer of this opinion is a part, believes that the easement of right of way may now be acquired through prescription, at least since the introduction into this jurisdiction of the special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law, particularly, Section 41 thereof, makes no distinction as to the real rights which are subject to prescription, and there would appear to be no valid reason, at least to the writer of this opinion, why the continued use of a path or a road or right of way by the party, specially by the public, for ten years or more, not by mere tolerance of the owner of the land, but through adverse use of it, Cannot give said party a vested right to such right of way through prescription. "The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does not require the use thereof every day for the statutory period, but simply the exercise of the right more or less frequently according to the nature of the use. (17 Am. Jur. 972)" Even under the case of Cuaycong vs. Benedicto (supra), this Tribunal insinuated that the rule that no discontinuous easement, like an easement of right of way, may, under Article 539 of the Old Civil Code, be acquired, might possibly have been changed by the provisions of the Code of Civil Procedure relative to prescription. . . . "Assuming, without deciding, that this rule has been changed by the provisions of the present Code of Civil Procedure relating to prescription, and that since its enactment discontinuous easement may be acquired by prescription, it is clear that this would not avail plaintiffs. The Code of Civil Procedure went into effect on October 1, 1901. The term of prescription for the acquisition of rights in real estate is fixed by the Code (section 41) at ten years. The evidence shows that in February, 1911 before the expiration of the term of ten years since the time the Code of Civil Procedure took effect, the defendants interrupted the use of the road by plaintiffs by constructing and maintaining a toll gate on it and collecting toll from persons making use of it with carts and continued to do so until they were enjoined by the granting of the preliminary injunction by the trial court in December 1912." . . . (Cuayong vs. Benedicto, 37 Phil., 781,796). Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code, Vol. I, p. 340, would appear to be of the opinion that under the provisions of the Code of

Civil Procedure relative to prescription, even discontinuous easements, like the easement of right of way, may be acquired through prescription: . . . "It is submitted that under Act No. 190, even discontinuous servitudes can be acquired by prescription, provided it can be shown that the servitude was 'actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants'." However, the opinion of the majority must prevail, and it is held that under the present law, particularly, the provisions of the Civil Code, old and new, unless and until the same is changed or clarified, the easement of right of way may not be acquired through prescription. In view of the foregoing, the order appealed from is hereby affirmed. No costs.

[G.R. No. 66520. August 30, 1988.] EDUARDO C. TAEDO, petitioner, vs. 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 Spouses ANTONIO CARDENAS and MAE LINDA CARDENAS , respondents.

Numeriano F . Capangpangan for petitioner. Meinrado P. Paredes for private respondents. SYLLABUS 1.REMEDIAL LAW; COMPLAINT; DISMISSAL THEREOF FOR LACK OF CAUSE OF ACTION; EXPLAINED. The dismissal of the 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 the insufficiency of the cause of action must appear on the face of the complaint. And the test of the sufficiency of the ultimate facts alleged in the complaint to constitute a cause of action, is whether or not, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer of the complaint. For this purpose, the movant is deemed to admit hypothetically the truth of the facts thus averred. 2.CIVIL LAW; DAMAGES; DETERMINED IN A TRIAL IN CASE OF BREACH OF PROMISE TO SELL. Considering the admission of defendant Cardenas, and that his promise to sell Lot 7501-B to Eduardo Taedo appears to be for a valuable consideration, a trial is necessary to determine, at the very least, the amount of damages suffered by the plaintiff Eduardo Taedo by reason of such breach of promise to sell, if indeed there is such a breach. 3.ID.; EASEMENT; ALIENATION OF DOMINANT AND SERVIENT ESTATES, NOT GROUND FOR ITS EXTINGUISHMENT; CASE AT BAR. The finding of the trial court that petitioner Taedo's right to continue to use the septic tank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest, also appears to be contrary to law. Article 631 of the Civil Code enumerates the grounds for the extinguishment of an easement. 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, use of the easement is continued by operation of law. Article 624 of the Civil Code provides: "Art. 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons." In the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Taedo. Nor did Antonio Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Taedo. Hence, the use of the septic tank is continued by operation of law. Accordingly, the spouses Romeo and Pacita Sim, the new owners of the servient estate (Lot 7501-B), cannot impair, in any manner whatsoever, the use of the servitude. DECISION

PADILLA, J p: This is a petition for review on certiorari of the Order issued by the respondent judge, Hon. Juanito A. Bernad, on 5 December 1983, which dismissed the complaint for legal redemption filed by the petitioner in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the Order of the same respondent judge, dated 20 January 1984, which denied petitioner's motion for reconsideration. llcd The facts, in brief, are as follows: 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 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 an apartment building, while the improvements on Lot 7501-B consist of one four-door apartment of concrete and strong materials; one two-storey house of strong materials; a bodega of 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. On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C. Taedo. 1 Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Taedo as a security for the payment of a loan in the amount of P10,000.00. 2 Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Taedo in case he should decide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartment building on Lot 7501-A has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26 February 1982, wherein Antonio Cardenas asked Taedo not to deduct the mortgage loan of P10,000.00 from the purchase price of Lot 7501-A "because as we have previously agreed, I will sell to you Lot 7501-B." 3 Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and Pacita Sim. 4 Upon learning of the sale, Eduardo Taedo offered to redeem the property from Romeo Sim. But the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of Eduardo Taedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Taedo to remove that portion of his building encroaching on Lot 7501-B. As a result, Eduardo Taedo, invoking the provisions of Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the issuance of a writ of preliminary injunction, before the Regional Trial Court of Cebu, docketed therein as Civil Case No. CEB-994, against the spouses 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 Answering, the spouses Romeo and Pacita Sim claimed that they are the absolute owners of Lot 7501-B and that Eduardo Taedo has no right to redeem the land under Art. 1622 of the Civil Code as the land sought to be redeemed is much bigger than the land owned by Taedo. 6 Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to Eduardo Taedo and claimed by way of cross-claim against the spouses Romeo and Pacita Sim, that the 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 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 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 Acting upon these motions and other incidental motions, the respondent judge issued the questioned order of 5 December 1983 dismissing the complaint and cross-claim. 10 Taedo filed a motion for reconsideration of the order, but his motion was denied on 20 January 1984. 11 Hence, the present recourse by petitioner Taedo. The Court finds merit in the petition. The dismissal of the 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 the insufficiency of the cause of action must appear on the face of the complaint. And the test of the sufficiency of the ultimate facts alleged in the complaint to constitute a cause of action, is whether or not, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer of the complaint. For this purpose, the movant is deemed to admit hypothetically the truth of the facts thus averred. 12 In the instant case, it cannot be denied that petitioner Taedo cannot redeem the entire Lot 7501-B from the spouses Romeo and 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 square meters which is much bigger, area-wise, than the lot owned by petitioner Taedo. However, the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by his apartment building, because the spouses Romeo and Pacita Sim had told him to remove that portion of his building which encroaches upon Lot 7501-B. Whether or not this is possible should have been determined at the pre-trial stage or trial on the merits. Besides, the action of petitioner Taedo is also one for recovery of damages by reason of breach of promise by the respondent Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the amended complaint read, as follows: "3.That by written agreement, plaintiff and defendant spouses Antonio Cardenas and Mae Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No. 7501-B of the subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of the cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City of Cebu, containing an area of SIX HUNDRED 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 apartment is standing on, the same should be sold to the plaintiff, but far from 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, 1932 as per Deed of Sale notarized by Notary Public, Jorge S. Omega and entered in his Notarial Register as Doc. No. 462; Page No.-94-; Book No. 11, Series of 1982;

"4.That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda Cardenas of the property in question to spouses Romeo Sim and Pacita Lim, plaintiff suffered moral damages in the form of mental

anguish, sleepless nights, mental torture, for which he is entitled to a compensation in the amount to be established during the trial of the case and has incurred litigation expenses subject for reimbursement and attorneys fee in the sum of P10,000.00 which should be chargeable to both defendant spouses;" 13 and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant spouses Romeo Sim and Pacita Sim, and spouses Antonio Cardenas and Mae Linda Cardenas be ordered to pay plaintiff moral damages, litigation expenses and attorneys fees in the amount of P50,000.00." 14 That there was a written agreement, as alleged in the complaint, between the plaintiff Eduardo Taedo and the defendant Antonio Cardenas is admitted by the latter. In his answer, he alleged the following: "ALLEGATIONS as to written agreement is ADMITTED, but, specifically denies that herein defendants SUREPTIOUSLY [sic] SOLD the lot in question to the other defendant Spouses Sim, the truth is, that the herein defendants [sic] was required to execute the Deed of Sale described in this paragraph 3 as security for the personal loans and other forms of indebtedness incurred from the Spouses Sims but never as a conveyance to transfer ownership;" 15 Considering this admission of defendant Cardenas, and that his promise to sell Lot 7501-B to Eduardo Taedo appears to be for a valuable consideration, a trial is necessary to determine, at the very least, the amount of damages suffered by the plaintiff Eduardo Taedo by reason of such breach of promise to sell, if indeed there is such a breach. Moreover, the finding of the trial court that petitioner Taedo's right to continue to use the septic tank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest, 16 also appears to be contrary to law. Article 631 of the Civil Code enumerates the grounds for the extinguishment of an easement. Said article provides: "Art. 631.Easements are extinguished: (1)By merger in the same person of the ownership of the dominant and servient estates; (2)By non-user for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; (3)When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; (4)By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional; (5)By the renunciation of the owner of the dominant estate; (6)By the redemption agreed upon between the owners of the dominant

and servient estates." 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, use of the easement is continued by operation of law. Article 624 of the Civil Code provides: "Art. 624.The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons." In the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Taedo. Nor did Antonio Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Taedo. Hence, the use of the septic tank is continued by operation of law. Accordingly, the spouses Romeo and Pacita Sim, the new owners of the servient estate (Lot 7501-B), cannot impair, in any manner whatsoever, the use of the servitude. 17 WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE. The respondent judge or another one designated in his place is directed to proceed with the trial of this case on the merits. With costs against private respondents. prLL SO ORDERED.

[G.R. No. 80511. January 25, 1991.] COSTABELLA CORPORATION, petitioner, vs. COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO, and CESAR T. ESPINA, respondents.

Roco, Bunag, Kapunan & Migallos for petitioner. Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc. Zosa & Quijano Law Offices for respondents. SYLLABUS 1.CIVIL LAW; EASEMENT; RIGHT OF WAY; CANNOT BE ACQUIRED BY PRESCRIPTION. It is already well-established that an easement of right of way is discontinous and as such can not be acquired by prescription. 2.ID.; ID.; ID.; REQUISITES OF COMPULSORY DEMAND THEREOF. Based on Articles 649 and 650 of the New Civil Code, the owner of the dominant estate may validly claim a compulsory right of way only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the servient estate. Additionally, the burden of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. 3.ID.; ID.; ID.; STANDARD FOR GRANT. The true standard for the grant of the legal right is "adequacy." Hence, when there is already an existing adequate outlet from the dominant estate to a public highway, even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. For to justify the imposition of an easement of right of way, "there must be a real, not a fictitious or artificial necessity for it." 4.ID.; ID.; ID.; DEMANDED BY NECESSITY. Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the Romans. They are demanded by necessity, that is, to enable owners of isolated estates to make full use of their properties, which lack of access to public roads has denied them. Under Article 649 of the Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and the concurrence of the other conditions above-referred to. 5.ID.; ID.; ID.; CRITERIA FOR GRANT. But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon two criteria: (1) at the point least prejudicial to the servient estate; and (2) where the distance to a public highway may be the shortest. According, however, to one commentator, "least prejudice" prevails over "shortest distance." Yet each case must be weighed according to its individual merits and judged according to the sound discretion of the court. "The Court," says Tolentino, "is not bound to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when there are constructions or walls which can be avoided by a roundabout way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a

dangerous decline." DECISION

SARMIENTO, J p: The principal issue raised in this petition for review on certiorari of the decision 1 dated May 30, 1986 of the Court of Appeals, 2 which modified the decision 3 rendered by the Regional Trial Court of Lapu-Lapu City in Cebu, is whether or not the private respondents had acquired an easement of right of way, in the form of a passageway, on the petitioner's property. It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had constructed a resort and hotel. The private respondents, on the other hand, are the owners of adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre. Before the petitioner began the construction of its beach hotel, the private respondents, in going to and from their respective properties and the provincial road, passed through a passageway which traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passageway when it began the construction of its hotel, but nonetheless opened another route across its property through which the private respondents, as in the past, were allowed to pass. (Later, or sometime in August, 1982, when it undertook the construction of the second phase of its beach hotel, the petitioner fenced its property thus closing even the alternative passageway and preventing the private respondents from traversing any part of it.) As a direct consequence of these closures, an action for injunction with damages was filed against the petitioner by the private respondents on September 2, 1982 before the then Court of First Instance of Cebu. 4 In their complaint, the private respondents assailed the petitioner's closure of the original passageway which they (private respondents) claimed to be an "ancient road right of way" that had been existing before World War II and since then had been used by them, the community, and the general public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-Lapu City and other parts of the country. The private respondents averred that by closing the alleged road right of way in question, the petitioner had deprived them access to their properties and caused them damages. prLL In the same complaint, the private respondents likewise alleged that the petitioner had constructed a dike on the beach fronting the latter's property without the necessary permit, obstructing the passage of the residents and local fishermen, and trapping debris and flotsam on the beach. They also claimed that the debris and flotsam that had accumulated prevented them from using their properties for the purpose for which they had acquired them. The complaint this prayed for the trial court to order the re-opening of the original passageway across the petitioner's property as well as the destruction of the dike. 5 In its answer, 6 the petitioner denied the existence of an ancient road through its property and counter-averred, among others, that it and its predecessors-in-interest had permitted the temporary, intermittent, and gratuitous use of, or passage through, its property by the private respondents and others by mere tolerance and purely as an act of neighborliness. It justified the walling in of its property in view of the need to insure the safety and security of its hotel and beach resort, and for the protection of the privacy and convenience of its hotel patrons and guests. At any rate, the petitioner alleged, the private respondents were not entirely dependent

on the subject passageway as they (private respondents) had another existing and adequate access to the public road through other properties. With respect to the dike it allegedly constructed, the petitioner stated that what it built was a breakwater on the foreshore land fronting its property and not a dike as claimed by the private respondents. Moreover, contrary to the private respondents' accusation, the said construction had benefited the community especially the fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and debris which had formed on the private respondents' beach front on the other hand were but the natural and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the sea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead as defendants the owners of the other properties supposedly traversed by the alleged ancient road right way, indispensable parties without whom no final adjudication of the controversy could be rendered. 7 After trial, the court a quo rendered a decision on March 15, 1984 finding that the private respondents had acquired a vested right over the passageway in controversy based on its long existence and its continued use and enjoyment not only by the private respondents, but also by the community at large. The petitioner in so closing the said passageway, had accordingly violated the private respondents' vested right. Thus, the trial court ordered the petitioner: 1.To open and make available the road in question to the plaintiffs and the general public at all times free of any obstacle thereof, unless the defendant shall provide another road equally accessible and convenient as the road or passage closed by the defendant; 2.To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff Perfecto Guangco the sum of TWO HUNDRED PESOS (P200.00) a month beginning September, 1982, representing their respective expenditures they had incurred in other beach resorts after the road was closed, until the passageway claimed by them is opened and made available to them, or if the defendant chooses to provide another road, until such road is made available and conveniently passable to the plaintiffs and the general public; and 3.To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees, and to pay the costs. 8 Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioning the alleged "vested right" of the private respondents over the subject passageway, and the private respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the petitioner's "dike" is concerned. LLphil In its decision, the respondent Appellate Court held as without basis the trial court's finding that the private respondents had acquired a vested right over the passageway in question by virtue of prescription. 9 The appellate court pointed out that an easement of right of way is a discontinuous one which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by prescription. 10 That notwithstanding, the appellate court went on to rule that ". . . in the interest of justice and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is not dependent upon the claims of the parties but a compulsory one that is legally demandable by the owner of the dominant estate from the owner of the servient estate." 11 Thus the appellate court: (1) granted the private respondents the right to an easement of way on the petitioner's property using the passageway in question, unless the petitioner should provide another passageway equally accessible and convenient as

the one it closed; (2) remanded the case to the trial court for the determination of the just and proper indemnity to be paid to the petitioner by the private respondents for the said easement; and (3) set aside the trial court's award of actual damages and attorney's fees. 12

On petitioner's motion for partial reconsideration, the respondent court issued on October 27, 1987 a resolution 13 denying the said motion. The Appellate Court however in denying the petitioner's motion for reconsideration stated that: . . . While it is true that there is another outlet for the plaintiff to the main road, yet such outlet is a new road constructed in 1979, while the road closed by defendant existed since over 30 years before. Legally, the old road could be closed; but since the existing outlet is inconvenient to the plaintiff, equitably the plaintiff should be given a chance to pay for a more convenient outlet through the land of the defendant at a point least prejudicial to the latter. In any event, the plaintiff shall pay for all damages that defendant corporation may sustain and the defendant regulates the manner of use of the right of way to protect defendant's property and its customers. This is the gist of Our decision. 14 Now before us, the petitioner contends that the decision of the respondent appellate court is grossly erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on easements and the prevailing jurisprudence on the matter. The petition is meritorious. It is already well-established that an easement of right of way, as is involved here, is discontinuous 15 and as such can not be acquired by prescription. 16 Insofar therefore as the appellate court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision and the dismissal of the complaint after holding that no easement had been validly constituted over the petitioner's property. Instead, the Appellate Court went on to commit a reversible error by considering the passageway in issue as a compulsory easement which the private respondents, as owners of the "dominant" estate, may demand from the petitioner the latter being the owner of the "servient" estate. It is provided under Articles 649 and 650 of the New Civil Code that: Art. 649.The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. llcd Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance.

This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts. Art. 650.The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of way only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the servient estate. Additionally, the burden of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. 17 Here, there is absent any showing that the private respondents had established the existence of the four requisites mandated by law. For one, they failed to prove that there is no adequate outlet from their respective properties to a public highway. On the contrary, as alleged by the petitioner in its answer to the complaint, and confirmed by the appellate court, "there is another outlet for the plaintiffs (private respondents) to the main road." 18 Thus, the respondent Court of Appeals likewise admitted that "legally the old road could be closed." 19 Yet, it ordered the reopening of the old passageway on the ground that "the existing outlet (the other outlet) is inconvenient to the plaintiff." 20 On this score, it is apparent that the Court of Appeals lost sight of the fact that the convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. 21 To be sure, the true standard for the grant of the legal right is "adequacy." Hence, when there is already an existing adequate outlet from the dominant estate to a public highway, even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real, not a fictitious or artificial necessity for it." 22 Further, the private respondents failed to indicate in their complaint or even to manifest during the trial of the case that they were willing to indemnify fully the petitioner for the right of way to be established over its property. Neither have the private respondents been able to show that the isolation of their property was not due to their personal or their predecessors-in-interest's own acts. Finally, the private respondents failed to allege, much more introduce any evidence, that the passageway they seek to be re-opened is at a point least prejudicial to the petitioner. Considering that the petitioner operates a hotel and beach resort in its property, it must undeniably maintain a strict standard of security within its premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be compromised. That indubitably will doom the petitioner's business. It is therefore of great importance that the claimed right of way over the petitioner's property be located at a point least prejudicial to its business. Hence, the private respondents' properties can not be said to be isolated, for which a compulsory easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as a controversy for a compulsory right of way, this Court is constrained to hold that it was in error. LexLib Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the Romans. 23 They are demanded by necessity, that is, to enable owners of isolated estates to make full use of their properties, which lack of access to public roads has denied them. 24 Under Article 649 of the Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and the concurrence of the other conditions above-referred to.

As also earlier indicated, there must be a real necessity therefor, and not mere convenience for the dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the "dominant" estate can not demand a right of way, although the same may not be convenient. Of course, the question of when a particular passage may be said to be "adequate" depends on the circumstances of each case. Manresa, however, says: "In truth, not only the estate which absolutely does not possess it should be considered in this condition, but also that which does not have one sufficiently safe or serviceable; an estate bordering a public road through an inaccessible slope or precipice, is in fact isolated for all the effects of the easement requested by its owner. On the other hand, an estate which for any reason has necessarily lost its access to a public road during certain periods of the year is in the same condition. . . . There are some who propound the query as to whether the fact that a river flows between the estate and the public road should be considered as having the effect of isolating the estate . . . If the river may be crossed conveniently at all times without the least danger, it cannot be said that the estate is isolated; in any other case, the answer is in the affirmative." 25 The isolation of the dominant estate is also dependent on the particular need of the dominant owner, and the estate itself need not be totally landlocked. What is important to consider is whether or not a right of way is necessary to fill a reasonable need therefor by the owner. 2 6 Thus, as Manresa had pointed out, if the passageway consists of an "inaccessible slope or precipice," 27 it is as if there is no passageway, that is, one that can sufficiently fulfill the dominant owner's necessities, although by the existence of that passageway the property can not be truly said that the property is isolated. So also, while an existing right of way may have proved adequate at the start, the dominant owner's need may have changed since then, for which Article 651 of the Code allows adjustments as to width. 28 But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon two criteria: (1) at the point least prejudical to the servient state; and (2) where the distance to a public highway may be the shortest. According, however, to one commentator, "least prejudice" prevails over "shortest distance." 29 Yet, each case must be weighed according to its individual merits, and judged according to the sound discretion of the court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when there are constructions or walls which can be avoided by a roundabout way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline." 30

It is based on these settled principles that we have resolved this case. prLL WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSED. Costs against the private respondents. SO ORDERED.

[G.R. No. 77628. March 11, 1991.] TOMAS ENCARNACION, petitioner, vs. THE HONORABLE COURT OF APPEALS AND THE INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN AND THE HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN, * respondents.

Esteban M. Mendoza for petitioner. Oscar Gozos for private respondents. SYLLABUS 1.CIVIL LAW; EASEMENTS; RIGHT OF WAY; ABSENCE OF ACCESS TO A PUBLIC ROAD. Where a private property has no access to a public road, it has the right of easement over adjacent servient estates as a matter of law. 2.ID.; ID.; ID.; WIDTH OF THE PASSAGE DETERMINED BY THE NEEDS OF THE DOMINANT PROPERTY. Under Article 651 of the Civil Code, it is the needs of the dominant property which ultimately determine the width of the passage. And these needs may vary from time to time. 3.ID.; ID.; ID.; ID.; CASE AT BAR. When petitioner started out as a plant nursery operator, he and his family could easily make do with a few pushcarts to tow the plants to the national highway. But the business grew and with it the need for the use of modern means of conveyance or transport. Manual hauling of plants and garden soil and use of pushcarts have become extremely cumbersome and physically taxing. To force petitioner to leave his jeepney in the highway, exposed to the elements and to the risk of theft simply because it could not pass through the improvised pathway, is sheer pigheadedness on the part of the servient estate and can only be counter-productive for all the people concerned. Petitioner should not be denied a passageway wide enough to accommodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business. 4.ID.; ID.; ID.; PAYMENT OF INDEMNITY WHERE EASEMENT IS CONTINUOUS AND PERMANENT. Where the easement to be established in favor of petitioner is of a continuous and permanent nature, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code. DECISION

FERNAN, C.J p: Presented for resolution in the instant petition for review is the not-so-usual question of whether or not petitioner is entitled to a widening of an already existing easement of right-of-way. Both the trial court and the Appellate Court ruled that petitioner is not so entitled, hence the recourse to this Court. We reverse. The facts are undisputed. Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda de Sagun are the owners of two adjacent estates situated in Buco, Talisay, Batangas ** Petitioner

owns the dominant estate which has an area of 2,590 square meters and bounded on the North by Eusebio de Sagun and Mamerto Magsino, on the south by Taal Lake, on the East by Felino Matienso and on the West by Pedro Matienzo. Private respondents co-own the 405-square-meter servient estate which is bounded on the North by the National Highway (Laurel Talisay Highway), on the South by Tomas Encarnacion, on the East by Mamerto Magsino and on the West by Felipe de Sagun. In other words, the servient estate stands between the dominant estate and the national road. Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons going to the national highway just crossed the servient estate at no particular point. However, in 1960 when private respondents constructed a fence around the servient estate, a roadpath measuring 25 meters long and about a meter wide was constituted to provide access to the highway. One-half meter width of the path was taken from the servient estate and the other onehalf meter portion was taken from another lot owned by Mamerto Magsino. No compensation was asked and none was given for the portions constituting the pathway. 1 It was also about that time that petitioner started his plant nursery business on his land where he also had his abode. He would use said pathway as passage to the highway for his family and for his customers. Petitioner's plant nursery business through sheer hard work flourished and with that, it became more and more difficult for petitioner to haul the plants and garden soil to and from the nursery and the highway with the use of pushcarts. In January, 1984, petitioner was able to buy an owner-type jeep which he could use for transporting his plants. However, that jeep could not pass through the roadpath and so he approached the servient estate owners (Aniceta Vda. de Sagun and Elena Romero Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of their property to be added to the existing pathway so as to allow passage for his jeepney. To his utter consternation, his request was turned down by the two widows and further attempts at negotiation proved futile. Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6 (Tanauan) to seek the issuance of a writ of easement of a right of way over an additional width of at least two (2) meters over the De Saguns' 405-square-meter parcel of land. 2 During the trial, the attention of the lower court was called to the existence of another exit to the highway, only eighty (80) meters away from the dominant estate. On December 2, 1985, the lower court rendered judgment dismissing petitioner's complaint. It ruled: "It is clear, therefore, that plaintiff at present has two outlets to the highway: one, through the defendants' land on a one meter wide passageway, which is bounded on both sides by concrete walls and second, through the dried river bed eighty meters away. The plaintiff has an adequate outlet to the highway through the dried river bed where his jeep could pass. "The reasons given for his claim that the one-meter passageway through defendants' land be widened to two and one-half meters to allow the passage of his jeep, destroying in the process one of the concrete fences and decreasing defendants' already small parcel to only about 332.5 square meters, just because it is nearer to the highway by 25 meters compared to the second access of 80 meters or a difference of only 65 meters and that passage through defendants' land is more convenient for his (plaintiff's) business and family use are not among the conditions specified by Article 649 of the Civil Code to entitle the plaintiff to a right

of way for the passage of his jeep through defendant's land." 3 On appeal, the Court of Appeals affirmed the decision of the trial court on January 28, 1987 and rejected petitioner's claim for an additional easement. In sustaining the trial court, the Court of Appeals opined that the necessity interposed by petitioner was not compelling enough to justify interference with the property rights of private respondents. The Appellate Court took into consideration the presence of a dried river bed only eighty (80) meters away from the dominant estate and conjectured that petitioner might have actually driven his jeep through the river bed in order to get to the highway, and that the only reason why he wanted a wider easement through the De Sagun's estate was that it was more convenient for his business and family needs. After evaluating the evidence presented in the case, the Court finds that petitioner has sufficiently established his claim for an additional easement of right of way, contrary to the conclusions of the courts a quo. While there is a dried river bed less than 100 meters from the dominant tenement, that access is grossly inadequate. Generally, the right of way may be demanded: (1) when there is absolutely no access to a public highway, and (2) when, even if there is one, it is difficult or dangerous to use or is grossly insufficient. In the present case, the river bed route is traversed by a semiconcrete bridge and there is no ingress nor egress from the highway. For the jeep to reach the level of the highway, it must literally jump four (4) to five (5) meters up. Moreover, during the rainy season, the river bed is impassable due to the floods. Thus, it can only be used at certain times of the year. With the inherent disadvantages of the river bed which make passage difficult, if not impossible, it is if there were no outlet at all. LexLib Where a private property has no access to a public road, it has the right of easement over adjacent servient estates as a matter of law. 4 With the non-availability of the dried river bed as an alternative route to the highway, we transfer our attention to the existing pathway which straddles the adjoining properties of the De Sagun heirs and Mamerto Magsino. The courts below have taken against petitioner his candid admission in open court that he needed a wider pathway for the convenience of his business and family. (TSN, August 2, 1985, pp. 24-26). We cannot begrudge petitioner for wanting that which is convenient. But certainly that should not detract from the more pressing consideration that there is a real and compelling need for such servitude in his favor. Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time." This is taken to mean that under the law, it is the needs of the dominant property which ultimately determine the width of the passage. And these needs may vary from time to time. When petitioner started out as a plant nursery operator, he and his family could easily make do with a few pushcarts to tow the plants to the national highway. But the business grew and with it the need for the use of modern means of conveyance or transport. Manual hauling of plants and garden soil and use of pushcarts have become extremely cumbersome and physically taxing. To force petitioner to leave his jeepney in the highway, exposed to the elements and to the risk of theft simply because it could not pass through the improvised pathway, is sheer pigheadedness on the part of the servient estate and can only be counterproductive for all the people concerned. Petitioner should not be denied a passageway wide enough to accommodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business.

We are well aware that an additional one and one-half (11/2) meters in the width of the pathway will reduce the servient estate to only about 342.5 square meters. But petitioner has expressed willingness to exchange an equivalent portion of his land to compensate private respondents for their loss. Perhaps, it would be well for respondents to take the offer of petitioner seriously. 5 But unless and until that option is considered, the law decrees that petitioner must indemnify the owners of the servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute the original path several years ago. Since the easement to be established in favor of petitioner is of a continuous and permanent nature, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code which states in part: "Art. 649.The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. "Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. xxx xxx xxx" WHEREFORE, in conformity with the foregoing discussion, the appealed decision of the Court of Appeals dated January 28, 1987 is REVERSED and SET ASIDE. Petitioner Tomas Encarnacion is hereby declared entitled to an additional easement of right of way of twenty-five (25) meters long by one and one-half (11/2) meters wide over the servient estate or a total area of 62.5 square meters after payment of the proper indemnity. SO ORDERED.

[G.R. No. 5044. December 1, 1909.] EDWIN CASE, petitioner-appellant, vs. THE HEIRS OF TUASON Y SANTIBAEZ, opponents-appellees.

Hartigan & Rohde, and Roman Lacson for appellant. Rosado, Sanz & Opisso for appellees. SYLLABUS 1.REALTY; EASEMENTS; PRESUMPTIONS WITH RESPECT TO PARTY WALLS. The legal presumption of the existence of an easement of a party wall is limited to the three cases contained in article 572 of the Civil Code, and is that of juris tantum; this must be accepted unless the contrary should appear from the title deeds of the adjoining properties, that is to say, that the entire wall in question belongs to one of the property owners, or, while there is no exterior sign to destroy such presumption and to support a presumption against the party wall. (Art. 573, Civil Code.) DECISION

TORRES, J p: On the 7th of December, 1906, the attorneys for Edwin Case filed a petition with the Court of Land Registration requesting that the property owned by the applicant, described in the petition, be registered in accordance with the provisions of the Land Registration Act. After a written opposition was presented by Felipe R. Caballero on the 6th of June, 1907, on behalf of the heirs of the late Pablo Tuason and Leocadia Santibaez, counsel for the applicant, Case, on August 2, 1907, amended the original petition and set forth: that said property, situated in Calle Escolta, district of Binondo, consists of a parcel of land and the building erected thereon bearing Nos. 142 and 152; it is bounded on the northwest, approximately, by the estero of Santa Cruz and the property of Carmen de Ayala de Roxas; on the southeast by the River Pasig; on the southwest by the property of the heirs of Tuason and Santibaez; and on the northwest by Calle Escolta and the aforesaid property of Carmen de Ayala de Roxas; that the total area is 3,251.84 square meters, its description and boundaries being detailed in the plan attached to the petition; that according to the last assessment made for the purposes of taxation the land was valued at P170,231 and the buildings thereon at P30,000; that the property is free from all incumbrance, and no one has any interest therein or right thereto; that on the northeast side the property had in its favor the right of easement over some 234.20 square meters of land owned by the said Ayala de Roxas, and that the applicant acquired the property by succession from Doa Clotilde Romree. In the written opposition above alluded to, counsel for the heirs of Pablo Tuason and Leocadia Santibaez alleged that the parties whom he represents are owners in common of the property adjoining that of the petitioner on the southwest; that the latter, in making the plan attached to his petition, extended his southwest boundary line to a potion of the lot of the said heirs of Tuason and Santibaez in the form indicated by the red line in the annexed plan; that the true dividing line between the property of the petitioner and that

of the said heirs is the walls indicated in black ink on the accompanying plan; that said walls belong to the opponents, and that about two years ago, when the applicant made alterations in the buildings erected on his land, he improperly caused a portion of them to rest on the wall owned by the parties whom he represents, at points 12, 13, and 14 of said plan; for which reason the opponent prayed the court to direct the applicant to amend the line marked in his plan with the letters Y, X, U, T, S, and R, so that it may agree with the wall indicated by the numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 on the plan which accompanist the written opposition, reducing the are to whatever it may be after the amendment has been made; that the applicant be compelled to remove the supports that he placed for his buildings on the wall of the representatives of the petitioner, and that he be sentenced to pay the costs. The case was brought to trial, both parties adduced evidence, and their exhibits were made of record. The court, assisted by the interested parties and their respective experts, made an inspection of the two properties, in view of which it entered judgment on the 31st of July, 1908, sustaining the opposition offered by the representative of the heirs of Pablo Tuason and Leocadia Santibaez, and after declaring a general default granted the registration of the property described in the application filed by Edwin Case, with the exclusion of the wall claimed by the opponents and shown on their plan by the lines numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14; and in view of the fact that lines drawn on the plan offered in evidence by the applicant under letter G. are not correctly drawn, once this decision shall have become final, let the dividing line of both properties be fixed by common accord between the two parties and their experts, taking as a base for the same the amended line of walls drawn on the plan of the opponents, but should they not reach an agreement a surveyor of the Court of Land Registration shall be detailed to fix the same at the expense of the parties; the court also ordered the cancellation of the registration shall be detailed to fix the same at the expense of the parties; the court also ordered the cancellation of the registration entries of the property entered in the name of Clotilde Romree, principal of the petitioner, at page 142 and those following of volume 15, section of Binondo and 52 of the register, property No. 828, first entry. On the 12th of August, 1908, the petitioner moved for the new trial on the ground that the evidence was not sufficient to justify the decision of the court in excluding the wall claimed by the opponents; that said decision was contrary to the law, in so far as it excludes the said decision was contrary to the law, in so far as it excludes the said wall, and that the conclusions of fact therein are openly and manifestly contrary to the weight of the evidence in so far as they referred to the exclusion of said wall. The said motion was overruled on the 15th of the same month, to which overruling the applicant excepted and announced his intention to perfect the corresponding bill of exceptions which was filed, approved, and submitted to this court together with the proper assignment of errors. It the appeal interposed by the applicant against the decision of the Court of Land Registration, now before this court, the questions set up are merely of fact. The question is whether the wall that with slight interruption runs from Calle Escolta to the River Pasig, and which divides the adjoining properties of the applicant, Edwin Case, and of the opponents, belongs to the former, as he claimed in the first instance, or is a dividing wall as affirmed in his brief in this second instance, or is the property of the said opponents, the heirs of the late Tuason and Santibaez. The trial court after considering the evidence adduced by both parties to the suit, found that the wall in controversy belongs to the opponents for the reason, among others that in the public document by which one of their original ancestors acquired on the 19th of April, 1796, the property now possessed by them, it appears that the property was then already inclosed by a stone wall. This document, which was offered in evidence by the opponents, has not been impugned by the applicant. On the contrary, it was acknowledged

as the title deed of the property adjoining that of the applicant by the witness Juan B. Tuason, who knows the one and the other. It is fully proven that two walls extend from Calle Escolta to the interior of both properties, the one backing the other, and which respectively support the edifices of the petitioner and of the opponents from points 36, 35, 34, 33, 32, 31, and 30 on the plan of the petitioner corresponding to points 1 to 6 on that of the opponents. This section of the wall of the opponents embraced within the points mentioned in the plans offered in evidence by the parties, for the very reason that it supports only the property of the opponents and not that of the petitioner, can not be a party wall, one-half of which along its entire length would belong to the adjoining building owned by Mr. Case. There is not sufficient proof to sustain such claim, and besides, the building erected thereon disproves the pretension of the petitioner. It should, however, be noted that portion of the wall between the numbers 3, 4, 5, and 6 on the plan of the opponents, which corresponds to numbers 33, 32, 31, and 30 of that of the petitioner, and which constitutes the cesspool on the property of the latter, belongs to him, and it has so been admitted by counsel for the opponents, for the reason that the petitioner had acquired it by prescription, the opponents having lost control over the area of land covered by the said cesspool together with the walls that inclose it. Under article 572 of the Civil Code the easement of party walls is presumed, unless there is a title or exterior sign, or proof to the contrary, among others, in dividing walls of adjoining buildings up to the common point of elevation. The legal presumption as to party walls is limited to the three cases dealt with in the said article of the code, and is that of juris tantum unless the contrary appear from the little of ownership of the adjoining properties, that is to say, that the entire wall in controversy belongs to one of the property owners, or where there is no exterior sign to destroy such presumption and support a presumption against the party wall. (Art. 573, Civil Code.) The intermediate portion of the wall in question, lying between numbers 6 and 13 on the defendants' plan, equivalent to a little more than numbers 30 to 25 on the plan of the petitioner, is the portion against which no other wall appears to have been erected on the land owned by Mr. Case. In spite of this it can not be presumed that the aforesaid portion was a party wall, and that it was not exclusively owned by the defendants, inasmuch as the latter have proven by means of a good title that has not been impugned by the petitioner, that when one of their ancestors and principals acquired the property the lot was already inclosed by the wall on which the building was erected; it must therefore be understood that in the purchase of the property the wall by which the land was inclosed was necessarily included. The above documentary evidence has not been overcome by any other presented by the petitioner, by apart from the record discloses the existence of certain unquestionable signs. These consist of constructions made by the petitioner himself on his own property which entirely destroy any presumption that it is a party wall, and indeed gives rise to a presumption against it. Three openings have been made in the wall, undoubtedly to allow the passage of air and light. Two of them are beveled on the side toward the land of the objectors, and the third had recently imbedded in the wall on the side of the property of the opponents. These things constitute exterior signs and were recorded as the result of personal inspection by the trial court in company with the experts of both parties. These signs positively and conclusively prove that the said wall is not a party wall, but the exclusive property of the

defendant. This is further confirmed by the testimony of the witnesses at the trial. The fact that the petitioner built a wall and backed it against the one in question to support the edifice he had constructed between points 21 and 13 of the corrected plan is a further indication that the neighboring wall is not a party one. He knew perfectly well that he had no right to rest his building on the latter. That he built a terrace about four years previously over the wall between points 30, 29, 28, and 27 does not prove that the whole of the wall, from the Escolta to the Rive Pasig, is a party wall, but it does show that he usurped a portion thereof to the prejudice of the real owner. Neither can it be presumed that part of the wall bordering on the River Pasig comprised between points 13 and 14 is a party wall. It was shown in the proceedings as resulting from the above-mentioned ocular inspection that at the side of the said wall, which is rather a low one, there is another, a higher one erected on the petitioner's land and backed against the one in question. The first one, as has been said, forms part of that which has surrounded the property from the date of its acquisition, more than a century ago, until the present date. It is absolutely independent of the built by the petitioner, and that it is the exclusive property of the objectors and is not a party wall can not be denied. It therefore appears from the proceedings that, with the exception of the small portion of the wall in question occupied by the latrine on the property of the petitioner, ad which the opponents admit that he had acquired by prescription, the whole of said wall from the Escolta to the River Pasig can not be presumed to be a party wall; the evidence to the contrary conclusively proves that it belonged exclusively to the defendants, and it has been further shown in the case that at one time an old building belonging to the opponents used to rest on a portion of the wall near the river. In view of the foregoing, and considering that the judgment appealed from is in accordance with the law and the merits of the case, it is our opinion that the same should be affirmed in full, as we do hereby affirm it, with the costs against the petitioner. So ordered.

[G.R. No. 6076. December 29, 1911.] SEVERINA and FLORA CHOCO, plaintiffs-appellants, vs. ISIDRO SANTAMARIA, defendant-appellant.

Manuel Torres for plaintiffs. Leodegario Azarraga for defendant. SYLLABUS 1.REALTY; EASEMENTS; LIGHT, AIR, AND VIEW. Windows with direct views, or balconies or any similar openings projecting over the estate of a neighbor, can not be made if there is not a distance of at least 2 meters between the wall in which they are built and the said estate. Neither can side nor oblique views be opened over said property, unless there is a Distance of 60 centimeters. (Art. 582, Civil Code.) 2.ID.; ID.; ID. The owner of a wall which is not a party wall, adjoining another's estate, may make in it windows or openings to admit light, at the height of the ceiling joists or immediately under the ceiling, of the dimensions of 30 centimeters square and, in any case, with an iron grate embedded in the wall and a wire screen. (Art. 581, Civil Code.) DECISION

MAPA, J p: The judgment rendered in this case in first instance is in part as follows: "From the evidence presented at the trial, I find that the defendant is in possession of a parcel of land on the corner of Calles Pescadores and P. Rada, in the district of Tondo, city of Manila, and that he has erected a house thereon flush with the boundary line of the adjacent property; that the plaintiffs are the owners of the land on both sides of defendant's house, erected as stated, both on Calle Pescadores and Calle P. Rada; that the defendant in the building of his house has made several openings and windows in the walls of the house on both sides overlooking the property of the plaintiffs' that at the time the defendant was building his house, and the windows and openings were being made, the plaintiffs protested, and later on and in the year 1905 made written protest and demand on the defendant, and the defendant received the written protest and referred it to his counsel, who, from the evidence, appears to have suggested an amicable adjustment of the matter, but the adjustment was not made, and this action was brought. "It is likewise established that the entrance to the defendant's house is in Calle Pescadores, and taking it as the front of his house he has put a large window in its upper story, on the balcony of said house, marked 1 on Exhibit A, overlooking Calle P. Rada; and that this window and its balcony do not face directly toward the house of the plaintiffs.

"There have also been constructed two windows in the rear wall of the house of the defendant, in the first story of the house, which are marked 8 and 9 on Exhibit A, and these windows are each 50 by 80 centimeters, and are placed immediately under the ceiling of the first story, and each of these windows is equally divided into four panes. "On the right hand side of the house, entering from Calle Pescadores, there is a window or opening in the wall of the house in the second story, which is about 25 by 35 centimeters, and is located a little more than half way from the floor of the ceiling of the second story and this is subdivided into smaller panes; and on the same side there are three windows which are marked 2, 3, and 4 on Exhibit A, located immediately under the ceiling of the first story, and each of the three is 25 by 25 centimeters. "There are two other windows on the same side located immediately under the ceiling, which are marked 5 and 6 on Exhibit A and also on Exhibit C, and one of these windows is about 35 by 67 centimeters, and the other about 75 by 90 centimeters. "It also appears that there is wire screening over all these openings or windows. "The law provides that the owner of a wall which is not a party wall, adjoining another's estate, may make in it windows or openings to admit light at the height of the ceiling joists, or immediately under the ceiling, thirty centimeters square, with an iron grate embedded in the walland a wire screen. "In this case the windows are in a wall not a party wall adjoining plaintiff's estate, and the windows marked 2, 3, and 4, as appears on Exhibit A, are less than thirty centimeters square and have a wire screen, but there does not appear to be the iron grate embedded in the wall. "The windows marked 5 and 6, as indicated on Exhibit A, have a wire screen but are more than thirty centimeters square, and have not the iron grate embedded in the wall. "The window marked 7 on Exhibit A has a wire screen, but is more than 30 centimeters square and has not the iron grate embedded in the wall. "The windows 8 and 9, as indicated on Exhibit A, have a wire screen but no iron grate embedded in the wall, and are of a greater dimension than thirty centimeters square. "The window marked One on Exhibit A is located in a balcony which overlooks the street, and, while the premises of the plaintiff may be seen from it, it is not adjoining their estate. "The court finds that the plaintiffs are entitled to a decree for closing all the windows or openings in the walls of the defendant's house, as hereinbefore described, which directly overlook the premises of the plaintiffs, or that in some other way the provisions of the law be complied with so that they may remain open. "All these openings and windows can be made to comply with the law, with the exception of that marked 7, which is not immediately

under the ceiling (techo). "Let judgment be entered in favor of the plaintiffs, Severina and Flora Choco, and against the defendant, Isidro Santamaria, forever prohibiting the opening of the window marked No. 7, as hereinbefore stated, which must be closed, and forever prohibiting the opening of the windows and openings marked, as hereinbefore stated, 2, 3, 4, 5, 6, 8, and 9, which must be closed or made to conform to the requirements of law with regard to dimensions and an iron grate embedded in the wall, with the costs of the action.'' The plaintiffs appealed from that judgment and allege in their appeal in this instance: 1.That the lower court erred by not ordering in his judgment the final and perpetual closing of the large window opened in the balcony of the back part of the appellee's house and marked No. 1 in the photographic Exhibits A and D, on the ground that the said window is in the balcony which overlooks Calle Padre Rada and that, though the appellants' lot can be seen from this window, it is not contiguous to the latter's property. 2.That the trial court also erred in ordering in his judgment that the openings and windows, Nos. 2, 3, 4, 5, 6, 8, and 9, might continue open if they were fixed so as to comply with the requirements of the law as regards their dimensions and the placing of iron grates embedded in the wall. 3.That the lower court also erred in denying the appellants' petition for a rehearing. It appears obvious to us, from the evidence, that the window No. 1, referred to in the first assignment of errors, is next to the appellants' lot. To judge from the photographic views, Exhibits A and D, it opens on the boundary line between the said lot and that of the appellee and is situated perpendicularly above a part of the wall that belongs to the appellants. This opinion is corroborated by the testimony of the defendant's witness who took the said photographs, in so far as he said that "a part of the window in question is in front of the plaintiffs' property, and a person approaching the window may clearly see the said lot." And certainly if it is in front of this lot, it is unquestionable that it directly overlooks the same; but even though it did not and only a side or oblique view of the lot could be obtained from it, it could not be kept open, since between it and the plaintiffs' property there does not intervene the distance required by law that of two meters in the first case, and 60 centimeters in the second. In reality, there is no distance at all between the said window and the plaintiffs' lot, because, as we have said, this window is perpendicular to the boundary line of the said lot; therefore, its opening is a manifest violation of the provisions of article 582 of the Civil Code which reads as follows: "Windows with direct views, or balconies or any similar openings projecting over the estate of the neighbor, can not be made if there is not a distance of, at least, 2 meters between the wall in which they are built and said estate. "Neither can side nor oblique views be opened over said property, unless there is a distance of 60 centimeters." Because of the lack of the distance required by law, the window in question must be closed, and consequently the judgment appealed from should be modified in this sense, as regards this window. With respect to the second assignment of error, the question raised by the appellants concerns the proper interpretation of article 581 of the Civil Code which prescribes as follows:

"The owner of a wall which is not a party-wall, adjoining another's estate, may make in it windows or openings to admit light, at the height of the ceiling joists or immediately under the ceiling, of the dimensions of 30 centimeters square and, in any case, with an iron grate embedded in the wall and a wire screen." The windows mentioned in this part of the appeal are those indicated by Nos. 2, 3, 4,5, 6, 8, and 9, in the defendant's Exhibit A. They are all situated immediately under the ceiling of the first floor and are provided with wire screens; some of them measure more and others less than 30 centimeters square and none of them have iron grates embedded in the wall. Owing to this last circumstance, none of them fully comply with the conditions required by law; moreover, those numbered 5, 6, 8, and 9, have the additional defect of being greater than 30 centimeters square. The trial judge therefore ordered, in the judgment, that all the aforementioned windows be closed or that they be made to conform to the law with respect to their dimensions and the placing of iron grates embedded in the wall. The appellants maintain that these windows should have been ordered closed absolutely and finally, and, consequently, that the option allowed the defendant to keep them open, provided that he brought them within the terms of the law, is contrary to the same and, therefore, illegal. It is alleged as a ground for such averment that none of the windows referred to are at the height of the ceiling joists, which is the first condition required by law. "We understand by ceiling joists say the appellants in a building composed of any given number of stories, the long pieces to which are nailed the boards that form the ceiling of the last story of the building, counting the stories from below; and this interpretation which we give to the words ceiling joists must be that most in harmony with the spirit of article 581 of the code, the subject of our examination, since immediately after them in the same article, in explanation, are found the words or immediately under 'los techos,' in order to indicate, without the least doubt, the sole place or height where openings or windows may be made in conformity with the law. It is needless to say that a building, though composed of several stories, can have but one techo. . . ." This last assertion is incorrect. By techo is understood that part of a construction which covers the rooms under it and certainly forms one of the essential parts of every story. A story is composed of earth, pavement and ceiling, the latter, that is, the ceiling, being that part of the story that is visible to the observer situated below in the room covered by it. (Hispano-American Encyclopedic Dictionary, by Montaner and Simon.) Consequently, every story has a ceiling, and not, as the appellants maintain, the upper one alone. Nor is their definition exact of the word joists, as it is employed in article 581 of the Code. According to the dictionary of the Spanish Academy, these are, in architecture, understood to be a kind of beam laid horizontally and serving in buildings to support others or for bracing and connecting the parts of the structure. Mucius Scaevola says in his Civil Code, volume 10, page 448: "The horizontal timbers that are placed upon the tops of the uprights, that is, what are commonly called beams, intended to serve for connection and main support of the timbers of the different floors that separate the stories of the building, are called joists." According to these definitions each floor necessarily has joists, that is, beams, since, in the last analysis they are what support and secure the structure of the story immediately above; therefore it is not true that there may be joists only in the top story, as

the appellants claim by saying that they understand to be such the long timbers to which are fastened the boards of the ceiling at the top story of the building. On the contrary, carefully considered, it is precisely the top story that does not need joists since it does not have to support any other higher portion of the building. It has only to support the weight of the roof, which is undoubtedly much less than that of a whole story. So that, according to Mucius Scaevola (work cited, vol. 10, p. 487), it can not be said that the top story has joists. And because it certainly does not have them, is the reason why the code in said article 581 employs the phrase or immediately under "los techos" in referring to the top story. The author's words in expounding this theory in his commentary on article 581 of the Civil Code are as follows: "We said elsewere that these (the joists) were the horizontal timbers that rest upon the tops of the uprights; they form, then, the upper limit of the different stories of a house; and therefore, in referring to the top story, which can not be said to have joists, article 581 makes use of the phrase or immediately under 'los techos.'" This does not mean that the italicized phrase refers solely and exclusively to the top story, since the lower stories also have techos, as above set forth. In our opinion what the author cited means is that in speaking of the top story, which has no joists, the words of article 581 of the code, at the height of the ceiling joists, fail to apply, the phrase or immediately under "los tecllos" alone being thereto applicable, in distinction from the lower stories, with regard to which both phrases are applicable as they have at the same time joists and techo. In referring to the lower stories either phrase may, in connection with the other, determine the place, which surely can not be more than one, where it is permissible to open the windows called regulation windows, whenever in them the joists are actually joined to or placed next to the techo which forms the top of each of said stories. Both phrases therefore express the same idea with reference to the lower stories. Aside from what has been said here, the object of the law in authorizing the opening of the windows in question in all the stories of a building, without any exception, is clear. Their purpose is, as article 581 itself says, to furnish light to the rooms, and it is evident at a glance that the rooms of the lower stories have as much need for light as those of the top story. No good reason exists for having one story in better condition than another, whichever it may be, in connection with this provision of law. The defendant is ordered to close finally and forever the window marked No. 1 in Exhibit A, the judgment appealed from in so far as it refers to said window being thus modified, but affirmed in all other respects; without special finding as to costs in this instance.

[G.R. No. 90596. April 8, 1991.] SOLID MANILA CORPORATION, petitioner, vs. BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.

Balgos & Perez for petitioner. Alfredo G. de Guzman for private respondent. SYLLABUS 1.CIVIL LAW; PROPERTY; OWNERSHIP AND ITS MODIFICATIONS; EASEMENTS OR SERVITUDES; NATURE, CONSTRUED. Servitudes are merely accessories to the tenements of which they form part. Although they are possessed of a separate juridical existence, as mere accessories, they can not, however, be alienated from the tenement, or mortgaged separately. 2.ID.; ID.; ID.; A LIMITATION ON THE RIGHT OF THE OWNER TO USE. An easement operates as a limitation on the title of the owner of the servient estate, specifically, his right to use ( jus utendi). 3.ID.; ID.; ID.; MODES OF EXTINGUISHMENT; MERGER, DEFINED. A merger exists when ownership of the dominant and servient estates is consolidated in the same person. Merger then, as can be seen, requires full ownership of both estates. 4.ID.; ID.; ID.; PERSONAL SERVITUDE; CONSTRUED. A personal servitude, is one constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of the general public. In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the easement pertains to persons without a dominant estate, in this case, the public at large. 5.REMEDIAL LAW; ACTIONS; SUMMARY JUDGMENT; WHEN PROPER. Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to the existence of a material fact, and the facts appear undisputed based on the pleadings, depositions, admissions, and affidavits of record. 6.ID.; ID.; ID.; PURPOSE. Summary judgments are meant to rid a proceeding of the ritual of a trial where, from existing records, the facts have been established, and trial would be futile. 7.ID.; ID.; LAW OF THE CASE; CONSTRUED. "Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330) 8.ID.; ID.; FORUM SHOPPING. There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending. DECISION

SARMIENTO, J p: This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of Court. The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in reversing the trial court which had rendered summary judgment; and (2) whether or not it erred in holding that an easement had been extinguished by merger. We rule for the petitioner on both counts. It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered by Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the vicinity of another parcel, registered in the name of the private respondent corporation under Transfer Certificate of Title No. 128784. The private respondent's title came from a prior owner, and in their deed of sale, the parties thereto reserved as an easement of way: . . . a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a private alley for the benefit of neighboring estates, this being duly annotated at the back of the covering Transfer Certificate of Title per regulations of the Office of the City Engineer of Manila and that the three meterwide portion of said parcel along the Pasig River, with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS, more or less, had actually been expropriated by the City Government, and developed pursuant to the beautification drive of the Metro Manila Governor. (p. 3, Record). 2 As a consequence, an annotation was entered in the private respondent's title, as follows: Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY It is hereby made of record that a construction of private alley has been undertaken on the lot covered by this title from Concepcion Street to the interior of the aforesaid property with the plan and specification duly approved by the City Engineer subject to the following conditions to wit: (1) That the private alley shall be at least three (3) meters in width; (2) That the alley shall not be closed so long as there's a building exists thereon (sic); (3) That the alley shall be open to the sky; (4) That the owner of the lot on which this private alley has been constituted shall construct the said alley and provide same with concrete canals as per specification of the City Engineer; (5) That the maintenance and upkeep of the alley shall be at the expense of the registered owner; (6) That the alley shall remain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the owner of the lot on which the alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not act (sic) for any indemnity for the use thereof; and (8) That he shall impose upon the vendee or new owner of the property the conditions abovementioned; other conditions set forth in Doc. No. 4236, Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila. 3 The petitioner claims that ever since, it had (as well as other residents of neighboring estates) made use of the above private alley and maintained and contributed to its upkeep, until

sometime in 1983, when, and over its protests, the private respondent constructed steel gates that precluded unhampered use. On December 6, 1984, the petitioner commenced suit for injunction against the private respondent, to have the gates removed and to allow full access to the easement. prLL The court a quo shortly issued ex parte an order directing the private respondent to open the gates. Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the easement referred to has been extinguished by merger in the same person of the dominant and servient estates upon the purchase of the property from its former owner; (2) the petitioner has another adequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the petitioner has not shown that the right-of-way lies at the point least prejudicial to the servient estate. The private respondent's opposition notwithstanding, the trial court issued a "temporary writ of preliminary injunction to continue up to the final termination of the case upon its merits upon the posting of a P5,000.00 bond by the plaintiff" 4 (the petitioner herein). Thereafter, the respondent corporation answered and reiterated its above defenses. On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on the same as follows: In view of the foregoing, this Court finds it unnecessary to try this case on the merit (sic) and hereby resolve (sic) to grant the plaintiff's motion for summary judgment. (pp. 15-107, Record). 5 On January 19, 1987, the trial court rendered judgment against the private respondent, the dispositive portion of which states: WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory injunction, that had been issued against the defendant, and for the defendant to pay the plaintiff the costs of this suit. The defendant's counterclaim against the plaintiff is hereby dismissed, for lack of merit. (Summary Judgment, p. 6). 6 The private respondent appealed to the respondent Court of Appeals. Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the cancellation of the annotation in question. The court granted cancellation, for which the petitioner instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered the restoration of the annotation "without prejudice [to] the final outcome of" 7 the private respondent's own appeal (subject of this petition). In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the respondent Court of Appeals held that the summary judgment was improper and that the lower court erroneously ignored the defense set up by the private respondent that the easement in question had been extinguished. According to the Appellate Court, an easement is a mere limitation on ownership and that it does not impair the private respondent's title, and that since the private respondent had acquired title to the property, "merger" brought about an extinguishment of the easement. The petitioner submits that the respondent Court of Appeals erred, because the very deed of sale

executed between the private respondent and the previous owner of the property "excluded" the alley in question, and that in any event, the intent of the parties was to retain the "alley" as an easement notwithstanding the sale. LLpr As already stated at the outset, the Court finds merit in the petition. There is no question that an easement, as described in the deed of sale executed between the private respondent and the seller, had been constituted on the private respondent's property, and has been in fact annotated at the back of Transfer Certificate of Title No. 128784. Specifically, the same charged the private respondent as follows: "(6) That the alley shall remain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the owner of the lot on which the alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] for any indemnity for the use thereof . . . " 8 Its act, therefore, of erecting steel gates across the alley was in defiance of these conditions and a violation of the deed of sale, and, of course, the servitude of way.

The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on appeal, the respondent Appellate Court committed an error of judgment and law. It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of the portion on which the right-of-way had been established and that an easement can not impair ownership. The petitioner is not claiming the easement or any part of the property as its own, but rather, it is seeking to have the private respondent respect the easement already existing thereon. The petitioner is moreover agreed that the private respondent has ownership, but that nonetheless, it has failed to observe the limitation or encumbrance imposed on the same. There is therefore no question as to ownership. The question is whether or not an easement exists on the property, and as we indicated, we are convinced that an easement exists. It is true that the sale did include the alley. On this score, the Court rejects the petitioner's contention that the deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the tenement and maintain an independent existence. Thus: Art. 617.Easements are inseparable from the estate to which they actively or passively belong. 9 Servitudes are merely accessories to the tenements of which they form part. 10 Although they are possessed of a separate juridical existence, as mere accessories, they can not, however, be alienated 12 The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no argument to defeat the petitioner's claims, because as an easement precisely, it operates as a limitation on the title of the owner of the servient estate, specifically, his right to use ( jus utendi). As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of the tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a private alley for the benefit of the neighboring estates . . ." 13 and precisely, the former owner, in conveying the property, gave the private owner a discount on account of the easement, thus: WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust the purchase price from THREE MILLION SEVEN HUNDRED

NINETY THOUSAND FOUR HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00) 14 Hence, and so we reiterate, albeit the private respondent did acquire ownership over the propertyincluding the disputed alley as a result of the conveyance, it did not acquire the right to close that alley or otherwise put up obstructions thereon and thus prevent the public from using it, because as a servitude, the alley is supposed to be open to the public. The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine merger took place as a consequence of the sale in favor of the private respondent corporation. According to the Civil Code, a merger exists when ownership of the dominant and servient estates is consolidated in the same person. 15 Merger then, as can be seen, requires full ownership of both estates. One thing ought to be noted here, however. The servitude in question is a personal servitude, that is to say, one constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of the general public. Personal servitudes are referred to in the following article of the Civil Code: Art. 614.Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. 16 In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the easement pertains to persons without a dominant estate, 17 in this case, the public at large. Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and the termination of that relation leaves the easement of no use. Unless the owner conveys the property in favor of the public if that is possible no genuine merger can take place that would terminate a personal easement. prLL For this reason, the trial court was not in error in rendering summary judgment, and insofar as the respondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals is in error. Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to the existence of a material fact, and the facts appear undisputed based on the pleadings, depositions, admissions, and affidavits of record. 18 In one case, this Court upheld a decision of the trial court rendered by summary judgment on a claim for money to which the defendant interposed the defense of payment but which failed to produce receipts. 19 We held that under the circumstances, the defense was not genuine but rather, sham, and which justified a summary judgment. In another case, we rejected the claim of acquisitive prescription over registered property and found it likewise to be sham, and sustained consequently, a summary judgment rendered because the title challenged was covered by a Torrens Certificate and under the law, Torrens titles are imprescriptible. 20 We also denied reconveyance in one case and approved a summary judgment rendered thereon, on the ground that from the records, the plaintiffs were clearly guilty of laches having failed to act until after twenty-seven years. 21 We likewise allowed summary judgment and rejected contentions of economic hardship as an excuse for avoiding payment under a contract for the reason that the contract imposed liability under any and all conditions. 22 In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one,

because as we said, merger is not possible, and secondly, the sale unequivocally preserved the existing easement. In other words, the answer does not, in reality, tender any genuine issue on a material fact and can not militate against the petitioner's clear cause of action. As this Court has held, summary judgments are meant to rid a proceeding of the ritual of a trial where, from existing records, 23 the facts have been established, and trial would be futile. What indeed, argues against the posturing of the private respondent and consequently, the challenged holding of the respondent Court of Appeals as well is the fact that the Court of Appeals itself had rendered judgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporation v. Ysrael, in which it nullified the cancellation of the easement annotated at the back of the private respondent's certificate of title ordered by Judge Ysrael in LRC Case No. 273. As the petitioner now in fact insists, the Court of Appeals' judgment, which was affirmed by this Court in its Resolution dated December 14, 1988, in G.R. No. 83540, is at least, the law of the case between the parties, as "law of the case" is known in law, e.g.: xxx xxx xxx "Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330). It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267). In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing." (5 C.J.S. 1276-77). Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87). 24 CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of the parties regarding the easement, subject of the controversy in this case, although as a

petition for "cancellation of annotation" it may have, at a glance, suggested a different cause of action. And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as the law of the case, after all, it was the one that initiated the cancellation proceedings with the Regional Trial Court in LRC No. 273 that precipitated that appeal. In the second place, the proceedings for cancellation of annotation was in fact meant to preempt the injunction decreed by the lower court in this case. Plainly and simply, the private respondent is guilty of forumshopping, as we have described the term: xxx xxx xxx

There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending, as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. This is specially so, as in this case, where the court in which the second suit was brought, has no jurisdiction. 25 to which contempt is a penalty. 26 As it happened, in its effort to shop for a friendly forum, the private respondent found an unfriendly court and it can not be made to profit from its act of malpractice by permitting it to downgrade its finality and deny its applicability as the law of the case. As a personal servitude, the right-of-way in question was established by the will of the owner. In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo, 27 this Court, speaking through Justice Claro Recto, declared that a personal servitude (also a right of way in that case) is established by the mere "act" 28 of the landowner, and is not "contractual in the nature," 29 and a third party (as the petitioner herein is a third party) has the personality to claim its benefits. In his separate opinion, however, Justice Jose Laurel maintained that a personal or voluntary servitude does require a contract and that "[t]he act of the plaintiff in opening the private way here involved did not constitute an offer .." 30 and "[t]here being no offer, there could be no acceptance; hence no contract." 31 The Court sees no need to relive the animated exchanges between two legal titans (they would contend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps owe their erudition and who, because of the paths they have taken, have shaped history itself; after all, and coming back to the case at bar, it is not disputed that an easement has been constituted, whereas it was disputed in North Negros' case. Rather, the question is whether it is still existing or whether it has been extinguished. As we held, our findings is that it is in existence and as a consequence, the private respondent can not bar the public, by erecting an obstruction on the alley, from its use. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel are hereby required to SHOW CAUSE why they should not be punished for contempt of court, and also administratively dealt with in the case of counsel, for forum shopping.

IT IS SO ORDERED.

[G.R. No. 75723. June 2, 1995.] SIMEON FLORO, petitioner, vs. ORLANDO A. LLENADO (Deceased), substituted by his wife WENIFREDA T. LLENADO, in her own behalf as Administratrix of the Estate of Orlando A. Llenado and as Legal Guardian of Minors Ma. Bexina, Avelino and Antonio, all surnamed Llenado, and the COURT OF APPEALS, respondents.

SYLLABUS 1.REMEDIAL LAW; CIVIL PROCEDURE; PETITION TO REVIEW ON CERTIORARI; ORDINARILY CONFINED TO REVIEWING ERRORS OF LAW COMMITTED; EXCEPTIONS. In a petition to review a decision of the Court of Appeals under Rule 45 of the Rules of Court, the jurisdiction of the Court is ordinarily confined to reviewing errors of law committed by the Court of Appeals, its findings of fact being conclusive on the Court. There are, however, exceptional circumstances that would compel the Court to review the findings of fact of the Court of Appeals, summarized in Remalante v. Tibe (G.R. No. 59514, February 25, 1988, 158 SCRA 138, 145) and subsequent cases as follows: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and, (10) when the finding of fact of the Court of Appeals are premised in the absence of evidence and are contradicted by the evidence on record. 2.CIVIL LAW; PROPERTY; EASEMENT OF RIGHT OF WAY; ABSENCE OF AGREEMENT AS TO THE CONSIDERATION DOES NOT CREATE A VALID CONTRACT THEREOF. It is not disputed that sometime in February 1983, Floro granted the Llenados verbal permission to pass through the Floro Park Subdivision in going to and from the MacArthur Highway. Whether such permission, as claimed by Floro, was the month of March only, without compensation and as a neighborly gesture for the purpose merely of enabling the Llenados to install stone monuments (mojones) on their land, or was in relation to the easement of right of way granted in their favor, as insisted by the Llenados, the fact remains that no such contract of easement of right of way was actually perfected between Floro and Llenado. Both Orlando and Wenifreda Llenado testified that the conditions of the easement of right of way were still to be drawn up by Floro's lawyer. Thus, no compensation was agreed upon, and none was paid, for the passage through Floro's property during the month of March. However, when Wenifreda saw Floro in the evening of April 7, 1983 to negotiate for the reopening of Road Lot 5 and Floro laid down his conditions for the requested reopening and presumably for the requested easement of right of way, Orlando rejected said conditions for being onerous. The use of Road Lots 4 and 5 by the Llenados during the month of March was by mere tolerance of Floro pending the negotiation of the terms and conditions of the right of way. This is evident from the testimony of Wenifreda that "they said to us to go on while they are preparing for the

papers" and that "We can use that for a while, while they were making for the papers." Although such use was in anticipation of a voluntary easement of right of way, no such contract was validly entered into by reason of the failure of the parties to agree on its terms and conditions. Thus, private respondents Llenados cannot claim entitlement to a right of way through the Floro Park Subdivision on the basis of a voluntary easement. 3.ID.; ID.; ID.; COMPULSORY SERVITUDE OF RIGHT OF WAY; PRECONDITIONS TO BE ESTABLISHED. To be entitled to a compulsory servitude of right of way under the Civil Code, the preconditions provided under Articles 649 and 650 thereof must be established. These preconditions are: (1) that the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1); (2) after payment of proper indemnity (Art. 649, par. 1); (3) that the isolation was not due to acts of the proprietor of the dominant estate (Art. 649, last par.); and, (4) that the right of way claimed is at the point least prejudicial to the servient estate; and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest (Art. 650). The burden of proving the existence of the prerequisites to validly claim a compulsory right of way lies on the owner of the dominant estate. 4.ID.; ID.; ID.; ID.; ID.; NO ADEQUATE OUTLET TO A PUBLIC HIGHWAY AS A CONDITION; NOT MET IN CASE AT BAR. Significantly, when Orlando Llenado filed the complaint for legal easement under Articles 649 and 650 of the Civil Code, he focused his argument on the absence of any road, other than the closed road of the Floro Park Subdivision, as his means of ingress and egress to and from his property. However, he omitted to state that there is a proposed access road through the Ipapo property. There being an existing right of way over the Ipapo property, the first requirement for a grant of a compulsory easement of right of way over the Floro Park Subdivision has not been met. 5.ID.; ID.; ID.; ID.; ID.; PRE-PAYMENT OF REQUIRED INDEMNITY; DEFINED. In Talisay-Silay Milling Co. v. Court of First Instance of Negros Occidental, (42 SCRA 584) the Court explained what is meant by payment or prepayment of the required indemnity under Article 649 of the Civil Code, as follows: ". . . Prepayment, as we used the term means the delivery of the proper indemnity required by law for the damage that might be incurred by the servient estate in the event the legal easement upon the extent of compensation cannot be reached by the parties involved, is not an impediment to the establishment of such easement. Precisely, the action of the dominant estate against the servient estate should include a prayer for the fixing of the amount which may be due from the former to the latter." In the case at bench, no proof was presented by private respondent Llenado that he complied with this requirement. The complaint for 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. Thus, the existence of the second requisite has likewise not been established. 6.ID.; ID.; ID.; ID.; ID.; ISOLATION WAS NOT DUE TO ACTS OF THE PROPRIETOR OF THE DOMINANT ESTATE; NOT SATISFIED IN THE CASE AT BAR. There can be no denying that the isolation of the Llenado Homes Subdivision is the doing of its owner/developer/applicant. It 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 for the sake of securing an approval of the proposed development plan. There were no proofs of actual work having been done to construct a road, even just a dirty road, over the right of way that would connect road Lot 3 of the Llenado Homes Subdivision to the MacArthur Highway. Private respondents Llenado admitted that the Ipapo riceland was no longer being cultivated and there was already a fence made of adobe wall constructed on it. Indication are that it has already been abandoned as a ricefield. There was no reason for private respondent's failure to develop the right of way except the inconvenience and expenses it would cost him. Hence, the third

requisite has not been met. 7.ID.; ID.; ID.; ID.; REAL, NOT A FICTITIOUS OR ARTIFICIAL NECESSITY REQUIRED TO JUSTIFY THE IMPOSITION THEREOF. In order to justify the imposition of the servitude of right of way, there must be a real, not a fictitious or artificial necessity for it. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Even in the face of a necessity, if it can be satisfied without imposing the servitude, the same should not be imposed. This easement can also be established for the benefit of a tenement with an inadequate outlet, but not when the outlet is merely inconvenient. Thus, when a person had 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 defects can be eliminated by proper repairs. 8.ID.; ID.; ID.; ID.; IMPOSITION THEREOF, NOT PROPER IN CASE AT BAR. Worthy of mention is the trial court's reason for the denial of the easement of right of way, thus: ". . . While it is true that the conversion of said salable (sic) Lot 14, Block 6 into a Road Lot has been approved by the Human Settlement Regulatory Commission, such approval, however, does not ipso facto connect Road Lot 5 and 4 (Exh. C-1) of the Floro Park Subdivision in the absence of consent and/or approval of the owner of said Floro Park Subdivision. . . . It should be emphasized that the end of Road Lot 3 of Llenado Homes Subdivision facing MacArthur Highway as per approved subdivision plan, subject of the proposed amendment, has been designated/specified as an access road directly leading to the MacArthur Highway. It is the shortest route and the road alignment is direct and in a straight line perpendicular to the MacArthur Highway. The disapproval, therefore, of the closure and consequent conversion of both ends of Road Lot 3 into residential lots, in effect, maintains Road Lot 3 as an access road of Llenado Homes Subdivision to the main highway. There appears a semblance of deception if the provision for (the) proposed access road in the approved subdivision plan of Emmanuel Homes Subdivision, now Llenado Homes Subdivision, would not be implemented as it would appear that the same was indicated in the plans merely for purposes of approval of the subdivision but not actually to develop and avail of the same was originally intended." It is also worthwhile to observe that on November 29, 1985 the then Minister of Public Works and Highways found the construction of the concrete culvert across Palanas Creek illegal in contemplation of Presidential Decree No. 296, Letters of Instructions No. 19 and Presidential Decree No. 1067 and ordered private respondent herein to remove or demolish the same, to be carried out by the Chief Civil Engineer, Bulacan Engineering District, at the expense of private respondent. Failing to establish the existence of the prerequisites under Articles 649 and 650 of the Civil Code, private respondent Llenado's bid for a compulsory easement of right of way over Road Lots 4 and 5 of the Floro Park Subdivision must fail. DECISION

ROMERO, J p: The instant petition for review on certiorari presents two (2) issues for resolution, namely: (1) whether or not a valid contract of easement of right of way exists when the owner of one estate voluntarily allows the owner of an adjacent estate passage through his property for a limited time, without compensation; and, (2) 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 purposed access road as provided in his duly approved subdivision plan. Simeon Floro is the owner of a piece of land known as the Floro Park Subdivision situated in Barangay Saluysoy, Meycauayan, Bulacan. 1 The subdivision has its own egress and ingress to and from the MacArthur Highway by means of its Road Lot 4 and the PNR level crossing. Orlando A. Llenado, 2 on the other hand, was the registered owner of two (2) parcels of land, with the total area of 34, 573 sq. meters, more or less, 3 known as the Llenado Homes Subdivision ("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 housing subdivision in the name of Soledad Ortega. 4 Bounded on the South by the 5 to 6 meter-wide Palanas Creek, 5 which separates it from the Floro Park Subdivision, and on the west by ricelands belonging to Marcial Ipapo, Montaos and Guevarra, the Llenado Homes does not have any existing road or passage to the MacArthur Highway. However, a proposed access road traversing the idle riceland of Marcial Ipapo has been specifically provided in the subdivision plan of Emmanuel Homes Subdivision which was duly approved by the defunct Human Settlement Regulatory Commission (now Housing and Land Use Regulatory Board). 6 Sometime in February, 1983, the Llenados sought, and were granted, permission by the Floros to use Road Lots 4 and 5 of the Floro Park Subdivision as the passageway to and from MacArthur Highway. On April 7, 1983, however, Floro barricaded Road Lot 5 with a pile of rocks, wooden posts and adobe stones, thereby preventing its use by the Llenados. Their request for the reopening of Road Lot 5 having been denied, Orlando Llenado instituted on April 13, 1983, a complaint before the Regional Trial Court (RTC) of Malolos, Bulacan, against Simeon Floro for Easement of Right of Way with the Prayer of the Issuance of a Writ of Preliminary Mandatory Injunction and Damages. The complaint was docketed as the Civil Case No. 6834-M and raffled off to Branch XIX, presided over by Hon. Judge Camilio Montesa. After hearing and ocular inspection, the trial court, in an Order dated July 15, 1983,7 granted the prayer for the issuance of a writ 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: "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 Park Subdivision and enjoining him and any person or persons under him from doing or performing any acts which will prevent (LLENADO) or his agents or any person acting under (LLENADO's) instruction from passing through the subject subdivision road to get into and to get out of the aforementioned properties of (LLENADO) until further order from this Court." Floro moved for reconsideration but was denied the relief sought. 8 He then filed with the Court of Appeals a petition for certiorari and prohibition with petition for a writ of preliminary injunction and restraining order, but later on, moved to 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 In the meantime, Orlando Llenado died and was substituted by his wife Wenifreda T. Llenado as administratrix of his estate and as legal guardian of their four (4) minor children. 10 Trial on the merits of the case which was suspended pending resolution of the petition before the Court of Appeals, resumed. On October 16, 1984, the trial court rendered judgment dismissing the case and lifting the writ of preliminary mandatory injunction previously issued. The dispositive portion of the decision 11 reads: "WHEREFORE, judgment is hereby rendered dismissing the instant complaint for lack of merit, and the writ of preliminary mandatory injunction issued in favor of the plaintiff is hereby ordered dissolved and/or lifted. On the counterclaim posed by defendant, the plaintiff is hereby ordered to pay defendant the following amounts: a.P30,000.00 as actual damages suffered by defendant; b.P77,500.00 as a compensation for the use of defendant's property; c. P15,000.00 as attorney's fees and; d. To pay the costs of the suit. SO ORDERED." On the appeal by Llenado, the appellate court set aside the decision of the trial court in a decision 12 promulgated on February 11, 1986, the dispositive portion of which reads as follows: "WHEREFORE, premises considered, the decision appealed from is hereby SET ASIDE and another one entered: (1)Granting the establishment of a legal or compulsory easement of right of way passing through Road Lots 4 and 5 of defendant's Floro Park Subdivision in favor of plaintiff's Llenado Homes Subdivision; (2)Ordering defendant to remove immediately all of the obstructions, such as walls, rocks and posts with which he had barricaded Road Lot 5 for the purpose of preventing plaintiff from using defendant's subdivision as passage way to the MacArthur Highway; (3)Ordering defendant to pay to plaintiff, upon finality of this decision, the following: (a) P60,000.00 temperate or moderate damages (b)P100,000.00 moral damages; and (c)P30,000.00 attorney's fees;

(4)Ordering plaintiff to pay to defendant the amount of P60,000.00 within ten (10) days from the date of finality of this decision as indemnity for the right of way pursuant to the mandate of Article 649 of the Civil Code; and (5)Ordering defendant to pay the costs. The liability of the defendant under No. (3) (supra) shall be legally compensated by the liability of the plaintiff under No. (4) (supra) automatically to the extent that the amount of one is covered by the amount of the other. SO ORDERED." On August 14, 1986, the appellate court in separate resolutions denied Floro's motion for reconsideration and supplementary 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 plaintiff appellant of a bond in the amount of ONE HUNDRED THOUSAND PESOS (P100,000.00) approved by this Court, let a writ of partial execution pending appeal be issued ordering the defendantappellee to remove immediately all of the obstructions, including all walls, rocks, posts, and other materials with which he has barricaded Road Lot 5, for the purpose of preventing plaintiff-appellant from using defendant's subdivision as passage way to the MacArthur Highway. Said Order shall include Road Lot 4 so that plaintiff-appellant will have free access to MacArthur Highway. SO ORDERED." The writ of partial execution pending appeal was issued on October 2, 1986 after the instant Petition had been filed and after the Court had resolved on September 15, 1986 to require Llenado to comment thereon. On motion of Floro, the Court issued a restraining order on October 29, 1986, 15 enjoining the appellate court from carrying out its writ of partial execution pending appeal. Subsequently, the instant petition was given due course. 16 In a petition to review a decision of the Court of Appeals under Rule 45 of the Rules of Court, the jurisdiction of the Court is ordinarily confined to reviewing errors of law committed by the court of Appeals, its findings of fact being conclusive on the Court. 17 There are, however, exceptional circumstances that would compel the Court to review the findings of fact of the Court of Appeals, summarized in Remalante v. Tibe 18 and subsequent cases 19 as follows: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of a specific evidence on which they are

based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and, (10) when the finding of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. The findings and conclusions of the Court of Appeals, being contrary to the findings and conclusions of the trial court, the instant case falls within the exception. Thus, the Court may scrutinize the evidence on the record to bring to light the real facts of the case. 20 It is not disputed that sometime in February 1983, Floro granted the Llenados verbal permission to pass through the Floro Park Subdivision in going to and from the MacArthur Highway. Whether such permission, as claimed by Floro, was the month of March only, without compensation and as a neighborly gesture for the purpose merely of enabling the Llenados to install stone monuments (mojones) on their land, 21 or was in relation to the easement of right of way granted in their favor, as insisted by the Llenados, 22 the fact remains that no such contract of easement of right of way was actually perfected between Floro and Llenado. Both Orlando 23 and Wenifreda Llenado 24 testified the conditions of the easement of right of way were still to be drawn up by Floro's lawyer. Thus, no compensation was agreed upon, and none was paid, for the passage through Floro's property during the month of March. 25 However, when Wenifreda saw Floro in the evening of April 7, 1983 to negotiate for the reopening of Road Lot 5 and Floro laid down his conditions 26 for the requested reopening and presumably for the requested easement of right of way, Orlando rejected said conditions for being onerous. 27 In Dionisio v. Ortiz, 28 where therein private respondents claimed 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 put a barricade in front of private respondent's gate and to stop them from using said gate as a passageway to Howmart Road, the Court said: "There is no question that a right of way was granted in favor of the private respondents over Howmart Road but the records disclose that such right of way expired in December 1988. The continued use of the easement enjoyed by QCIEA including the private respondents is by the mere tolerance of the owner pending the renegotiation of the terms and conditions of said right of way. . . . Absent an agreement of the parties as to the consideration, among others, no contract of easement of right of way has been validly entered into by the petitioners and QCIEA. Thus the private respondent's claim of an easement of right of way over Howmart Road has no legal or factual basis." As in the Dionisio case, the use of Road Lots 4 and 5 by the Llenados during the month of March was by mere tolerance of Floro pending the negotiation of the terms and conditions of the right of way. This is evident from the testimony of Wenifreda that "they said to us to go on while they are preparing for the papers" and that "We can use that for a while, while they were making for the papers." 29 Although such use was in anticipation of a voluntary

easement of right of way, no such contract was validly entered into by reason of the failure of the parties to agree on its terms and conditions. Thus, private respondents Llenados cannot claim entitlement to a right of way through the Floro Park Subdivision on the basis of a voluntary easement. Having ruled that no voluntary easement of right of way had been established in favor of private respondents Llenados, we now determine whether or not they are entitled to a compulsory easement of right of way. For the Llenados to be entitled to a compulsory servitude of right of way under the Civil Code, the preconditions provided under Articles 649 and 650 thereof must be established. These preconditions are: (1) that the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1); (2) after payment of proper indemnity (Art. 649, par. 1); (3) that the isolation was not due to acts of the proprietor of the dominant estate (Art. 649, last par.); and, (4) that the right of way claimed is at the point least prejudicial to the servient estate; and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest (Art. 650). 30 The burden of providing the existence of the prerequisites to validly claim a compulsory right of way lies on the owner of the dominant estate. 31 We find that private respondents have failed in this regard. Significantly, when Orlando Llenado filed the complaint for legal easement under Articles 649 and 650 of the Civil Code, he focused his argument on the absence of any road, other than the closed road of the Floro Park Subdivision, as his means of ingress and egress to and from his property. However, he omitted to state that there is a proposed access road through the Ipapo property. Danilo Ravello, an engineer employed as Project Officer of the Human Settlement Regulatory Commission (HSRC) since 1981, testified that his duties consisted in evaluating and processing subdivision plans and making the proper recommendation for their approval or disapproval. The application of Soledad Ortega for the Emmanuel Homes Subdivision, 32 appearing on page 120 of the 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 Plan; 34 (3) Vicinity Plan; 35 (4) Road Plan Layout; 36 and (5) Consolidation Subdivision Plan. 37 According to Ravello, as per Plan Exhs. "10-A" and "10-C", Road Lot 3 of the Emmanuel Homes Subdivision starts and ends with adjacent properties; on one end, the property owned by Mariano Monadero and at the other, the property owned by a certain Ventura Tan Mariano. As per Plans, the access road to the subdivision should have come from the MacArthur Highway through the Ipapo property. 38 Having found on ocular inspection that the access road indicated in the Plan did not actually exist, the HSRC required applicant Soledad Ortega to submit a written right of way clearance from Ipapo, which she did and on the basis of which, her application on behalf of the Emmanuel Homes Subdivision was approved. 39 When Orlando Llenado acquired the subject property, he adopted the subdivision plans of Emmanuel Homes and renamed it as the Llenado Homes Subdivision. Accordingly, he applied for the issuance of a new Development Permit and License to Sell in his name as the new owner of the subdivision. Subsequently, the corresponding license to sell and development permit were issued. As shown by the Consolidation Subdivision Plan 40 submitted by 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. In said subdivision plan which was duly approved by the HSRC, the Ipapo Access Road was retained. On July 1, 1983, during the pendency of Civil Case No. 6834-M, Orlando Llenado filed with the HSRC an application for the amendment of the original Consolidation Subdivision Plan of the Llenado Homes Subdivision. 41 The proposed amendments, as indicated in Exh. "11-A", 42 were: (1) the conversion of Lot 14 of Block 6 into a road lot, designed to connect with Road Lot 5 of the Floro Homes Subdivision; and, (2) the closing of both ends of Road Lot 3, the portion leading to the Ventura Tan Mariano property and the 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 lot was approved on March 20, 1984. 43 The access road of Llenado Homes Subdivision, however, remained in the Subdivision Plan to be through the Ipapo property, as approved by the HSRC. When asked by the court as to the policy of the HSRC regarding the approval of a subdivision plan in connection with the right of way issue, Engr. Ravello responded that as a prerequisite for 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 gives his consent and the owner/developer/applicant of the proposed subdivision develops the proposed access road, 44 as approved by the HSRC in compliance with Section 29 of Presidential Decree No. 957 which states: "SEC. 29Right of Way to Public Road The owner or developer of a subdivision without access to any existing public road or street must secure a right of way to a public road or street and such right of way must be developed and maintained according to the requirement of the government authorities concerned." On appeal to the Court of Appeals, private respondents Llenado submitted a letter of Marcial Ipapo dated July 3, 1985 addressed to the HSRC, 45 informing the latter that he did not give a road right of way over his property in favor of Soledad Ortega, the developer of Emmanuel Homes Subdivision. This letter seems to be an aftermath of the testimony of Engr. Ravello that the notarized affidavit of Ipapo submitted by Soledad Ortega to the HSRC could not be located in the records of the Commission. 46 This new matter, however, is inadmissible in evidence, not having been authenticated in accordance with Section 20, Rule 132 of the Rules of the Court. It was, therefore, erroneous on the part of the Court of Appeals to consider this piece of evidence in its Resolution For the Motion For Reconsideration dated August 124, 1986. 47 There being an existing right of way over the Ipapo property, the first requirement for a grant of a compulsory easement of right of way over the Floro Park Subdivision has not been met. In Talisay-Silay Milling Co. v. Court of First Instance of Negros Occidental, 48 the Court explained what is meant by payment or prepayment of the required indemnity under Article 649 of the Civil Code, as follows: ". . . Prepayment, as we used the term means the delivery of the proper indemnity required by law for the damage that might be incurred by the servient estate in the event the legal easement

is constituted. The fact that a voluntary agreement upon the extent of compensation cannot be reached by the parties involved, is not an impediment to the establishment of such easement. Precisely, the action of the dominant estate against the servient estate should include a prayer for the fixing of the amount which may be due from the former to the latter." In the case at bench, no proof was presented by private respondent Llenado that he complied with this requirement. The complaint for 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. Thus, the existence of the second requisite has likewise not been established. There can be no denying that the isolation of the Llenado Homes Subdivision is the doing of its owner/developer/applicant. It 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 for the sake of securing an approval of the proposed development plan. There were no proofs of actual work having been done to construct a road, even just a dirty road, over the right of way that would connect road Lot 3 of the Llenado Homes Subdivision to the MacArthur Highway. Private respondent llenado admitted that the Ipapo riceland was no longer being cultivated and there was already a fence made of adobe wall constructed on it. 49 Indication are that it has already been abandoned as a ricefield. There was no reason for private respondent's failure to develop the right of way except the inconvenience and expenses it would cost him. Hence, the third requisite has not been met. If the servitude requested by private respondent Llenado is allowed, other subdivision developers/owners would be encouraged to hastily prepare a subdivision plan with fictitious provisions for access roads merely for registration purposes. Thereafter, said developers could abandon their duly approved plans and, for whatever reason, open up another way through another property under the pretext that they have inadequate outlets to a public road or highway. Furthermore, if such practice were tolerated, the very purpose for which Presidential Decree No. 957 was enacted, that is to protect subdivision buyers from unscrupulous subdivision owners/developers who renege on their duties to develop their subdivisions in accordance with the duly approved subdivision plans, would be defeated. The Court takes cognizance of the fact that, instead of developing the proposed access road, private respondent Llenado applied for the conversion of Lot 14 of Block 6 into a road lot to connect it with Road Lot 5 of the Floro Park Subdivision, citing as reason therefor, that the amendment sought would create a "more adequate and practical passage" from Llenado Homes Subdivision to the MacArthur National Highway and vise-versa. The "convenience" of using Road Lots 4 and 5 of the Floro Park Subdivision will not suffice, however, to justify the easement in favor of private respondent. In order to justify the imposition of the servitude of right of way, there must be a real, not a fictitious or artificial necessity for it. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Even in the face of a necessity, if it can be satisfied

without imposing the servitude, the same should not be imposed. 50 This easement can also be established for the benefit of a tenement with an inadequate outlet, but nit when the outlet is merely inconvenient. Thus, when a person has already established an easement of this nature in favor of his tenement, he cannot demand another, even if those first passage has defects which make passage impossible, if those defects can be eliminated by proper repairs. 51 In the case of Ramos v. Gatchalian, 52 the Court denied access to Sucat Road through Gatchalian Avenue in view of the fact that petitioner had a road right of way provided by the Sobrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its lots, notwithstanding that said lot was still undeveloped and inconvenient to petitioner. Even if Ramos, the petitioner therein, had "to pass through other lots belonging to other owners, which are grassy and cogonal, as temporary ingress/egress with great inconvenience particularly due to flood and mud," the Court did not allow the easement because it 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 Appellate Court 53 and Constabella Corporation v. Court of Appeals. 54 As borne out by the records of this case, despite the closure of the subject road, construction work at Llenado Homes Subdivision continued. The alternative route taken by private respondent is admittedly inconvenient because he has to transverse several ricelands and rice paddies belonging to different persons, not to mention that said passage, as found by the trial court, is impassable during the rainy season. However, private respondent has no one to blame but himself for not developing the proposed access road through the Ipapo property. Worthy of mention is the trial court's reason 55 for the denial of the easement of right of way, thus: ". . . While it is true that the conversion of said salable (sic) Lot 14, Block 6 into a Road Lot has been approved by the Human Settlement Regulatory Commission, such approval, however, does not ipso facto connect Road Lot 5 and 4 (Exh. C-1) of the Floro Park Subdivision in the absence of consent and/or approval of the owner of said Floro Park Subdivision. . . . It should be emphasized that the end of Road Lot 3 of Llenado Homes Subdivision facing MacArthur Highway as per approved subdivision plan, subject of the proposed amendment, has been designated/specified as an access road directly leading to the MacArthur Highway. It is the shortest route and the road alignment is direct and in a straight line perpendicular to the MacArthur Highway. The disapproval, therefore, of the closure and consequent conversion of both ends of Road Lot 3 into residential lots, in effect, maintains Road Lot 3 as an access road of Llenado Homes Subdivision to the main highway. There appears a semblance of deception if the provision for (the) proposed access road in the approved subdivision plan of Emmanuel Homes Subdivision, now Llenado Homes Subdivision, would not be implemented as it would appear that the same was indicated in the plans merely for purposes of approval of

the subdivision but not actually to develop and avail of the same was originally intended." It is also worthwhile to observe that on November 29, 1985 the then Minister of Public Works and Highways found the construction of the concrete culvert across Palanas Creek illegal in contemplation of Presidential Decree No. 296, Letters of Instructions No. 19 and Presidential Decree No. 1067 and ordered private respondent herein to remove or demolish the same, to be carried out by the Chief Civil Engineer, Bulacan Engineering District, at the expense of private respondent. 56 Failing to establish the existence of the prerequisites under Articles 649 and 650 of the Civil Code, private respondent Llenado's bid for a compulsory easement of right of way over Road Lots 4 and 5 of the Floro Park Subdivision must fail. It appears from the records that during the period from March 1983 until the closure of the subject roads on April 7, 1983, private respondent was allowed to pass thru petitioner's subdivision without any agreement or compensation. During the same period, the subject roads (Road Lots 4 and 5) were damaged due to trucks and heavy equipment passing thereon. Justice and equity demand that petitioner be compensated for the said damage. Hence, the lower court's decision awarding to petitioner Thirty Thousand Pesos (P30,000.00) as actual and compensatory damages should be affirmed. Petitioner should likewise be indemnified for the use of his property from July 15, 1983 (upon the reopening of the subject road pursuant to the issuance of a writ of preliminary mandatory injunction) until October 16, 1986 (when the writ was lifted). In the absence of a specific provision applicable in the case at bench as to the amount of proper indemnity, the award of Sixty Thousand Pesos (P60,000.00) as temperate or moderate damages pursuant to Articles 2224 and 2225 of the Civil Code 57 is considered proper and reasonable. 58 As regards the claim for attorney's fees, considering that the petitioner was compelled to file a petition for review on certiorari before this Court, the amount of Thirty Thousand Pesos (P30,000.00) is just reasonable. Cdpr WHEREFORE, the appealed decision of the Court of Appeals is SET ASIDE and the decision of the trial court, as herein modified, is REINSTATED. Costs against private respondent. SO ORDERED.

[G.R. No. 112331. May 29, 1996.] ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents.

Benedicto L. Nanca for petitioner. Armando A. San Antonio for private respondent. SYLLABUS 1.REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE COURT OF APPEALS REVERSING THE DECISION OF THE TRIAL COURT, UPHELD ON APPEAL. But we find no cogent reason to disturb the ruling of respondent appellate court granting a right of way to private respondent through petitioner's property. In fact, as between petitioner Anastacia and respondent Yolanda their agreement has already been rendered moot insofar as it concerns the determination of the principal issue herein presented. The voluntary easement in favor of private respondent, which petitioner now denies but which the court is inclined to believe, has in fact become a legal easement or an easement by necessity constituted by law. The trial court found that Yolanda's property was situated at the back of her father's property and held that there existed an available space of about nineteen (19) meters long which could conveniently serve as a right of way between the boundary line and the house of Yolanda's father; that the vacant space ended at the left back of Sotero's store which was made of strong materials; that this explained why Yolanda requested a detour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5) meters long to serve as her right of way to the public highway. But notwithstanding its factual observations, the trial court concluded, although erroneously, that Yolanda was not entitled to a right of way on petitioner's property since a detour through it would not make the line straight and would not be the route shortest to the public highway. In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right of way of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of petitioner's property, will cause the least prejudice and/or damage as compared to the suggested passage through the property of Yolanda' s father which would mean destroying the sari-sari store made of strong materials. Absent any showing that these findings and conclusion are devoid of factual support in the records, or are so glaringly erroneous, this Court accepts and adopts them. As between a right of way that would demolish a store of strong materials to provide egress to a public highway, and another right of way which although longer will only require an avocado tree to be cut down, the second alternative should be preferred. After all, it is not the main function of this Court to analyze or weigh the evidence presented all over again where the petition would necessarily invite calibration of the whole evidence considering primarily the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other, and the probabilities of the situation. In sum, this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the evidence. 2.CIVIL LAW; PROPERTY, OWNERSHIP AND ITS MODIFICATIONS; EASEMENT, DEFINED. As defined, an easement is a real right on another's property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property, for the benefit of another person or tenement. It is jus in re aliena, inseparable, indivisible and perpetual, unless extinguished by causes provided by law. A right of way in particular is a privilege constituted by covenant or granted by law to a person or class of persons to pass over another's property when his tenement is surrounded by realties belonging to others without an adequate outlet to the public highway. The owner of the dominant estate

can demand a right of way through the servient estate provided he indemnifies the owner thereof for the beneficial use of his property. 3.ID.; ID.; EASEMENTS; RIGHT OF WAY; CONDITIONS FOR GRANT THEREOF. The conditions sine qua non for a valid grant of an easement of right of way are: (a) the dominant estate is surrounded by other immovables without an adequate outlet to a public highway; (b) the dominant estate is willing to pay the proper indemnity; (c) the isolation was not due to the acts of the dominant estate; and, (d) the right of way being claimed is at a point least prejudicial to the servient estate. 4.ID.; ID.; ID.; ID.; CRITERION OF LEAST PREJUDICE TO THE SERVIENT ESTATE, CONSTRUED. Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by private respondent is the least onerous to the parties. We cannot agree. Article 650 of the New Civil Code explicitly states that the easement of right of way shall be established at the point least prejudicial to the servient estate and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing the shortest distance; while on the other hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through. In other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. DECISION

BELLOSILLO, J p: IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice shall be chosen. However, if the two circumstances do not concur in a single tenement, the way where damage will be least shall be used even if not the shortest route. 1 This is so because least prejudice prevails over shortest distance. This means that the court is not bound to establish what is the shortest distance; a longer way may be adopted to avoid injury to the servient estate, such as when there are constructions or walls which can be avoided by a round about way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline. Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in Pandi, Bulacan. They agreed to subdivide the property equally among themselves, as they did, with the shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road. The share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is bounded on the right by the property of Sotero designated as Lot No. 1448-B-2. Adjoining Sotero's property on the right are Lots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina and Sulpicio, respectively, but which were later acquired by a certain Catalina Santos. Located directly behind the lots of Anastacia and Sotero is the share of their brother Antonio designated as Lot No. 1448B-C which the latter divided into two (2) equal parts, now Lots Nos. 1448-B-6-A and 1448-B-6-B, each with an area of 92 square meters. Lot No. 1448-B-6-A is located behind Anastacia's Lot No.

1448-B-1, while Lot No. 1448-B-6-B is behind the property of Sotero, father of respondent Yolanda. In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt Anastacia who was then acting as his administratrix. According to Yolanda, when petitioner offered her the property for sale she was hesitant to buy as it had no access to a public road. But Anastacia prevailed upon her to buy the lot with the assurance that she would give her a right of way on her adjoining property for P200.00 per square meter. Thereafter, Yolanda constructed a house on the lot she bought using as her passageway to the public highway a portion of Anastacia's property. But when Yolanda finally offered to pay for the use of the pathway Anastacia refused to accept the payment. In fact she was thereafter barred by Anastacia from passing through her property. 2 In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6-B, located directly behind the property of her parents who provided her a pathway gratis et amore between their house, extending about nineteen (19) meters from the lot of Yolanda behind the sari sari store of Sotero, and Anastacia's perimeter fence. The store is made of strong materials and occupies the entire frontage of the lot measuring four (4) meters wide and nine meters (9) long. Although the pathway leads to the municipal road it is not adequate for ingress and egress. The municipal road cannot be reached with facility because the store itself obstructs the path so that one has to pass through the back entrance and the facade of the store to reach the road. On 29 December 1987 Yolanda filed an action with the proper court praying for a right of way through Anastacia's property. An ocular inspection upon instruction of the presiding judge was conducted by the branch clerk of court. The report was that the proposed right of way was at the extreme right of Anastacia's property facing the public highway, starting from the back of Sotero's sari sari store and extending inward by one (1) meter to her property and turning left for about five (5) meters to avoid the store of Sotero in order to reach the municipal road 3 and the way was unobstructed except for an avocado tree standing in the middle. 4 But on 5 September 1991 the trial court dismissed the complaint for lack of cause of action, explaining that the right of way through Sotero's property was a straight path and to allow a detour by cutting through Anastacia's property would no longer make the path straight. Hence the trial court concluded that it was more practical to extend the existing pathway to the public road by removing that portion of the store blocking the path as that was the shortest route to the public road and the least prejudicial to the parties concerned than passing through Anastacia's property. 5 On appeal by respondent Yolanda, the Court of Appeals reversed the lower court and held that she was entitled to a right of way on petitioner's property and that the way proposed by Yolanda would cause the least damage and detriment to the servient estate. 6 The appellate court however did not award damages to private respondent as petitioner did not act in bad faith in resisting the claim. Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregarding the agreement of the parties; (b) in considering petitioner's property as a servient estate despite the fact that it does not abut or adjoin the property of private respondent; and, (c) in holding that the one-meter by five-meter passage way proposed by private respondent is the least prejudicial and the shortest distance to the public road. Incidentally, petitioner denies having promised private respondent a right of way. She claims that her agreement with private respondent was to provide the latter with a right of way on the other

lot of Antonio Quimen under her administration when it was not yet sold to private respondent. Petitioner insists that passing through the property of Yolanda's parents is more accessible to the public road than to make a detour to her property and cut down the avocado tree standing thereon. Petitioner further argues that when Yolanda purchased Lot No. 1448-B-6-B in 1986 the easement of right of way she provided her (petitioner) was ipso jure extinguished as a result of the merger of ownership of the dominant and the servient estates in one person so that there was no longer any compelling reason to provide private respondent with a right of way as there are other surrounding lots suitable for the purpose. Petitioner strongly maintains that the proposed right of way is not the shortest access to the public road because of the detour and that, moreover, she is likely to suffer the most damage as she derives a net income of P600.00 per year from the sale of the fruits of her avocado tree, and considering that an avocado has an average life span of seventy (70) years, she expects a substantial earning from it. 7 But we find no cogent reason to disturb the ruling of respondent appellate court granting a right of way to private respondent through petitioner's property. In fact, as between petitioner Anastacia and respondent Yolanda their agreement has already been rendered moot insofar as it concerns the determination of the principal issue herein presented. The voluntary easement in favor of private respondent, which petitioner now denies but which the court is inclined to believe, has in fact become a legal easement or an easement by necessity constituted by law. 8 As defined, an easement is a real right on another's property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property, for the benefit of another person or tenement. 9 It is jus in re aliena, inseparable, indivisible and perpetual, unless extinguished by causes provided by law. A right of way in particular is a privilege constituted by covenant or granted by law 10 to a person or class of persons to pass over another's property when his tenement is surrounded by realties belonging to others without an adequate outlet to the public highway. The owner of the dominant estate can demand a right of way through the servient estate provided he indemnifies the owner thereof for the beneficial use of his property. 11 The conditions sine qua non for a valid grant of an easement of right of way are: (a) the dominant estate is surrounded by other immovables without an adequate outlet to a public highway; (b) the dominant estate is willing to pay the proper indemnity; (c) the isolation was not due to the acts of the dominant estate; and, (d) the right of way being claimed is at a point least prejudicial to the servient estate. 12 A cursory examination of the complaint of respondent Yolanda for a right of way 13 readily shows that [E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase the same for they are enclosed with permanent improvements like a concrete fence and store and have (sic) no egress leading to the road but because of the assurance of the defendant that plaintiff will be provided one (1) meter wide and five (5) meters long right of way in the sum of P200.00 per square meter to be taken from Anastacia's lot at the side of a concrete store until plaintiff reach(es) her father's land, plaintiff was induced to buy the aforesaid parcels of land . . . That the aforesaid right of way is the shortest, most convenient and the least onerous leading to the road and being used by the plaintiff's predecessors-in-interest from the very inception . . . . The evidence clearly shows that the property of private respondent is hemmed in

by the estates of other persons including that of petitioner; that she offered to pay P200.00 per square meter for her right of way as agreed between her and petitioner; that she did not cause the isolation of her property; that the right of way is the least prejudicial to the servient estate. 14 These facts are confirmed in the ocular inspection report of the clerk of court, more so that the trial court itself declared that "[t]he said properties of Antonio Quimen which were purchased by plaintiff Yolanda Quimen Oliveros were totally isolated from the public highway and there appears an imperative need for an easement of right of way to the public highway." 15 Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by private respondent is the least onerous to the parties. We cannot agree. Article 650 of the New Civil Code explicitly states that the easement of right of way shall be established at the point least prejudicial to the servient estate and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing the shortest distance; while on the other hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through. In other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. 16 This is the test. In the trial court, petitioner openly admitted Q.You testified during your direct examination about this plan, kindly go over this and please point to us in what portion of this plan is the house or store of the father of the (plaintiff)? A.This one, sir (witness pointed a certain portion located near the proposed right of way). xxx xxx xxx Q.Now, you will agree with me . . . that this portion is the front portion of the lot owned by the father of the plaintiff and which was (sic) occupied by a store made up of strong materials? A.It is not true, sir. Q.What materials does (sic) this store of the father of the plaintiff made of? A.Hollow blocks and the side is made of wood, sir. xxx xxx xxx Q.Just before your brother disposed that 1/2 portion of the lot in question, what right of way does (sic) he use in reaching the public road, kindly point to this sketch that he is (sic) using in reaching the public road? A.In my property, sir. Q.Now you will agree with me . . . the main reason why your brother is (sic) using this property is because there was a store located

near this portion? A.Yes, and according to the father of Yolanda there is no other way than this, sir. 17 The trial court found that Yolanda's property was situated at the back of her father's property and held that there existed an available space of about nineteen (19) meters long which could conveniently serve as a right of way between the boundary line and the house of Yolanda's father; that the vacant space ended at the left back of Sotero's store which was made of strong materials; that this explained why Yolanda requested a detour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5) meters long to serve as her right of way to the public highway. But notwithstanding its factual observations, the trial court concluded, although erroneously, that Yolanda was not entitled to a right of way on petitioner's property since a detour through it would not make the line straight and would not be the route shortest to the public highway. In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right of way of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of petitioner's property, will cause the least prejudice and/or damage as compared to the suggested passage through the property of Yolanda's father which would mean destroying the sari sari store made of strong materials. Absent any showing that these findings and conclusion are devoid of factual support in the records, or are so glaringly erroneous, this Court accepts and adopts them. As between a right of way that would demolish a store of strong materials to provide egress to a public highway, and another right of way which although longer will only require an avocado tree to be cut down, the second alternative should be preferred. After all, it is not the main function of this Court to analyze or weigh the evidence presented all over again where the petition would necessarily invite calibration of the whole evidence considering primarily the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other, and the probabilities of the situation. 18 In sum, this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the evidence.

WHEREFORE, no reversible error having been committed by respondent Court of Appeals, the petition is DENIED and the decision subject of review is AFFIRMED. Costs against petitioner. SO ORDERED.

[G.R. No. 95252. September 5, 1997.] LA VISTA ASSOCIATION, INC., petitioner, vs. COURT OF APPEALS, SOLID HOMES, INC., ATENEO DE MANILA UNIVERSITY, ROMULO VILLA, LORENZO TIMBOL, EMDEN ENCARNACION, VICENTE CASIO, JR., DOMINGO REYES, PEDRO C. MERCADO, MARIO AQUINO, RAFAEL GOSECO, PORFIRIO CABALU, JR., and ANTONIO ADRIANO, in their behalf and in behalf of the residents of LOYOLA GRAND VILLAS, INC., PHASES I AND II , respondents.

Bonifacio A. Alentajan for petitioner. Angara, Abello, Concepcion Regala Cruz for respondents Romulo Villa, et al. Bengson Narciso Cudala Pecson & Jimenez for ADMU. Tomas R. Leonidas for respondent Solid Homes. SYNOPSIS The area comprising the 15-meter wide roadway was part of a land owned by the Tuasons which was sold to Philippine Building Corporation by virtue of a Deed of Sale with Mortgage. Paragraph three (3) of the deed provides that ". . .the boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide, one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the VENDORS." The land was later sold to Ateneo de Manila University with the consent of the Tuasons. The Tuasons later developed its 7.5 meter share of the Mangyan road, while Ateneo erected an adobe wall on the entire length of the boundary of its property parallel to the 15-meter wide roadway which was later removed due to an amicable settlement. Ateneo sold 16 hectares of its property along Mangyan road to Solid Homes, Inc. and the deed of sale provided among others that the vendor passes unto the vendee the privileges of such right-of-way. Subsequently, Solid Homes, Inc. developed the Loyola Grand Villas. La Vista, a residential village developed by the Tuasons, prohibited the agents and assignees of Solid Homes, Inc. and residents of Loyola from traversing the Mangyan Road. Solid Homes Inc. then instituted an action, and prayed that LA VISTA be enjoined from preventing and obstructing the use and passage of LOYOLA residents through Mangyan Road. The trial court issued a preliminary injunction in favor of Solid Homes, Inc. which was nullified and set aside by the Appellate Court. In a petition for review on certiorari filed with the Supreme Court, Solid Homes, Inc. assailed the nullification and setting aside of the preliminary injunction issued by the trial court. Meanwhile, the Regional Trial Court of Quezon City rendered a decision on the merits affirming and recognizing the easement of right-of-way along Mangyan Road in favor of Solid Homes, Inc. LA VISTA appealed to the Court of Appeals, which affirmed in toto the decision of the trial court. The Supreme Court held that the opinion and findings of fact of a court when issuing a writ preliminary injunction are interlocutory in nature and made even before the trial on the merits is terminated. Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merits of the main case for injunction. The merits of the main case having been already determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and effect.

It is very apparent that the parties and their respective predecessors-in-interest intended to establish an easement of right-of-way over Mangyan Road for their mutual benefit, both as dominant and servient estates. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements like in the case at bar. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity. SYLLABUS 1.REMEDIAL LAW; PROVISIONAL REMEDIES; PRELIMINARY INJUNCTION; ORDER ISSUING WRIT, INTERLOCUTORY. A writ of preliminary injunction is generally based solely on initial and incomplete evidence. The opinion and findings of fact of a court when issuing a writ of preliminary injunction are interlocutory in nature and made even before the trial on the merits is terminated. Consequently there may be vital facts subsequently presented during the trial which were not obtaining when the writ of preliminary injunction was issued. Hence, to equate the basis for the issuance of a preliminary injunction with that for the issuance of a final injunctive writ is erroneous. And it does not necessarily mean that when a writ of preliminary injunction issues a final injunction follows. We thus repeat what we said in Solid Homes, Inc., v. La Vista which respondent Court of Appeals quoted in its assailed Decision Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merits of the main case for injunction. The merits of the main case having been already determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and effect. 2.CIVIL LAW; PROPERTY, OWNERSHIP AND ITS MODIFICATION; EASEMENT; LEGAL EASEMENT DISTINGUISHED FROM VOLUNTARY EASEMENT. A legal or compulsory easement is that which is constituted by law for public use or for private interest. By express provisions of Arts. 649 and 650 of the New Civil Code, the owner of an estate may claim a legal or compulsory right-of-way only after he has established the existence of four (4) requisites, namely: (a) the estate is surrounded by other immovables and is without adequate outlet to a public highway; (b) after payment of the proper indemnity; (c) the isolation was not due to the proprietor's own acts; and (d) the right-of-way claimed is at a point least prejudicial to the servient estate, and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be shortest. A voluntary easement on the other hand is constituted simply by will or agreement of the parties. 3.ID.; ID.; ID.; EASEMENT IN CASE AT BAR A VOLUNTARY ONE. From the facts of the instant case it is very apparent that the parties and their respective predecessors-in-interest intended to establish an easement of right-of-way over Mangyan Road for their mutual benefit, both as dominant and servient estates. This is quite evident when: (a) the Tuasons and the Philippine Building Corporation in 1949 stipulated in par. 3 of their Deed of Sale with Mortgage that the "boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide, one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the vendors"; (b) the Tuasons in 1951 expressly agreed and consented to the assignment of the land to, and the assumption of all the rights and obligations by ATENEO, including the obligation to contribute seven and one-half meters of the property sold to form part of the 15-meter wide roadway; (c) the Tuasons in 1958 filed a complaint against MARYKNOLL and ATENEO for breach of contract and the enforcement of the reciprocal easement on Mangyan Road, and demanded that MARYKNOLL set back its wall to restore Mangyan Road to its original width of 15 meters, after MARYKNOLL constructed a wall in the middle of the 15 meter wide roadway; (d) LA VISTA President Manuel J. Gonzales admitted and clarified in 1976, in a letter to ATENEO President Fr. Jose A. Cruz, S.J., that "Mangyan Road is a road fifteen meters wide, one half of which is taken

from your property and the other half from the La Vista Subdivision. So that the easement of a right-of-way on your 7 1/2 m. portion was created in our favor and likewise an easement of right-of-way was created on our 7 1/2 m. portion of the road in your favor"; (e) LA VISTA, in its offer to buy the hillside portion of the ATENEO property in 1976, acknowledged the existence of the contractual right of-way as it manifested that the mutual right-of-way between the Ateneo de Manila University and La Vista Homeowners' Association would be extinguished if it bought the adjacent ATENEO property and would thus become the owner of both the dominant and servient estates; and, (f) LA VISTA President Luis G. Quimson, in a letter addressed to the Chief Justice, received by this Court on 26 March 1997, acknowledged that "'one-half of the whole length of (Mangyan Road) belongs to La Vista Assn., Inc. The other half is owned by Miriam (Maryknoll) and the Ateneo in equal portions". These certainly are indubitable proofs that the parties concerned had indeed constituted a voluntary easement of right-of-way over Mangyan Road and, like any other contract, the same could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. 4.ID.; ID.; ID.; ADEQUATE OUTLET TO A HIGHWAY CANNOT EXTINGUISH VOLUNTARY EASEMENT. The argument of petitioner LA VISTA that there are other routes to LOYOLA from Mangyan Road is likewise meritless, to say the least. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements like in the case at bar. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity. 5.ID.; OBLIGATIONS AND CONTRACTS; PARTIES MAY STIPULATE TO OBSERVE PROVISIONS OF CONTRACT BY ALL WHO IN THE FUTURE MAY SUCCEED THEM. That there is no contract between LA VISTA and Solid Homes, Inc. and thus the court could not have declared the existence of an easement created by the manifest will of the parties, is devoid of merit. The predecessors-in-interest of both LA VISTA and Solid Homes, Inc., i.e., the Tuasons and the Philippine Building Corporation, respectively, clearly established a contractual easement of rightof-way over Mangyan Road. When the Philippine Building Corporation transferred its rights and obligations to ATENEO the Tuasons expressly consented and agreed thereto. Meanwhile, the Tuasons themselves developed their property into what is now known as LA VISTA. On the other hand, ATENEO sold the hillside portions of its property to Solid Homes, Inc., including the right over the easement of right-of-way. In sum, when the easement in this case was established by contract, the parties unequivocally made provisions for its observance by all who in the future might succeed them in dominion.

6.REMEDIAL LAW; ACTIONS; INTERVENTION; ORDINARILY NOT ALLOWED AFTER TRIAL; ALLOWED ON APPEAL FOR THOROUGH DISPOSITION OF CASE. Finally petitioner questions the intervention of some LOYOLA residents at a time when the case was already on appeal, and submits that intervention is no longer permissible after trial has been concluded. Suffice it to say that in Director of Lands v. Court of Appeals (93 SCRA 238, 245-246), we said It is quite clear and patent that the motions for intervention filed by the movants at this stage of the proceedings where trial has already been concluded, a judgment thereon had been promulgated in favor of private respondent and on appeal by the losing party . . . the same was affirmed by the Court of Appeals and the instant petition for certiorari to review said judgment is already submitted for decision by the Supreme Court, are obviously and manifestly late, beyond the period prescribed under . . . Section 2, Rule 12 of the Rules of Court (now Sec. 2, Rule 19, 1997 Rules of Civil Procedure). But Rule 12 of the Rules of Court, like all other Rules therein promulgated, is simply a rule of procedure, the whole purpose and object of which is to make the powers of the Court fully and completely available for justice. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of contending parties. It

was created not to hinder and delay but to facilitate and promote the administration of justice. It does not constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adopted to obtain that thing. In other words, it is a means to an end. The denial of the motion for intervention arising from the strict application of the Rule due to alleged lack of notice to, or the alleged failure of, movants to act seasonably will lead the Court to commit an act of injustice to the movants, to their successors-in-interests and to all purchasers for value and in good faith and thereby open the door to fraud, falsehood and misrepresentation, should intervenors' claims be proven to be true. After all, the intervention does not appear to have been filed to delay the proceedings. On the contrary, it seems to have expedited the resolution of the case as the incidents brought forth by the intervention, which could have been raised in another case, were resolved together with the issues herein resulting in a more thorough disposal of this case. DECISION

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

between LA VISTA and the portion sold to Philippine Building Corporation was the 15-meter wide roadway known as the Mangyan Road. On 6 June 1952 ATENEO sold to MARYKNOLL the western portion of the land adjacent to Mangyan Road. MARYKNOLL then constructed a wall in the middle of the 15-meter wide roadway making one-half of Mangyan Road part of its school campus. The Tuasons objected and later filed a complaint before the then Court of First Instance of Rizal for the demolition of the wall. Subsequently, in an amicable settlement, MARYKNOLL agreed to remove the wall and restore Mangyan Road to its original width of 15 meters. Meanwhile, the Tuasons developed its 7.5-meter share of the 15-meter wide boundary. ATENEO deferred improvement on its share and erected instead an adobe wall on the entire length of the boundary of its property parallel to the 15-meter wide roadway. On 30 January 1976 ATENEO informed LA VISTA of the former's intention to develop some 16 hectares of its property along Mangyan Road into a subdivision. In response, LA VISTA President Manuel J. Gonzales clarified certain aspects with regard to the use of Mangyan Road. Thus . . . The Mangyan Road is a road fifteen meters wide, one-half of which is taken from your property and the other half from the La Vista Subdivision. So that the easement of a right-of-way on your 7 m. portion was created in our favor and likewise an easement of right-ofway was created on our 7 portion of the road in your favor (paragraph 3 of the Deed of Sale between the Tuasons and the Philippine Building Corporation and Ateneo de Manila dated 1 July 1949 . .. On 28 April 1976 LA VISTA President Manuel J. Gonzales, in a letter to ATENEO President Fr. Jose A. Cruz, S. J., offered to buy under specified conditions the property ATENEO was intending to develop. One of the conditions stipulated by the LA VISTA President was that "[i]t is the essence of the offer that the mutual right of way between the Ateneo de Manila University and La Vista Homeowners' Association will be extinguished." The offer of LA VISTA to buy was not accepted by ATENEO. Instead, on 10 May 1976 ATENEO offered to sell the property to the public subject to the condition that the right to use the 15-meter roadway will be transferred to the vendee who will negotiate with the legally involved parties regarding the use of such right as well as the development costs for improving the access road. LA VISTA became one of the bidders. However it lost to Solid Homes, Inc., in the bidding. Thus on 29 October 1976 ATENEO executed a Deed of Sale in favor of Solid Homes, Inc., over parcels of land covering a total area of 124,424 square meters subject, among others, to the condition that 7.The VENDOR hereby passes unto the VENDEE, its assigns and successors-in-interest the privileges of such right of way which the VENDOR acquired, and still has, by virtue of the Deeds mentioned in the immediately preceeding paragraph hereof; provided, that the VENDOR shall nonetheless continue to enjoy said right of way privileges with the VENDEE, which right of way in favor of the VENDOR shall be annotated on the pertinent road lot titles. However it is hereby agreed that the implementation of such right of way shall be for the VENDEE's sole responsibility and liability, and likewise any development of such right of way shall be for the full account of the VENDEE. In the future, if needed, the VENDOR is therefore free to make use of the aforesaid right of way, and/or Mangyan Road access, but in such a case the VENDOR shall

contribute a pro-rata share in the maintenance of the area. Subsequently, Solid Homes, Inc., developed a subdivision now known as Loyola Grand Villas and together they now claim to have an easement of right-of-way along Mangyan Road through which they could have access to Katipunan Avenue. LA VISTA President Manuel J. Gonzales however informed Solid Homes, Inc., that LA VISTA could not recognize the right-of-way over Mangyan Road because, first, Philippine Building Corporation and its assignee ATENEO never complied with their obligation of providing the Tuasons with a right-of-way on their 7.5-meter portion of the road and, second, since the property was purchased for commercial purposes, Solid Homes, Inc., was no longer entitled to the right-of-way as Mangyan Road was established exclusively for ATENEO in whose favor the right-of-way was originally constituted. LA VISTA, after instructing its security guards to prohibit agents and assignees of Solid Homes, Inc., from traversing Mangyan Road, then constructed one-meter high cylindrical concrete posts chained together at the middle of and along the entire length of Mangyan Road thus preventing the residents of LOYOLA from passing through. Solid Homes, Inc., complained to LA VISTA but the concrete posts were not removed. To gain access to LOYOLA through Mangyan Road an opening through the adobe wall of ATENEO was made and some six (6) cylindrical concrete posts of LA VISTA were destroyed. LA VISTA then stationed security guards in the area to prevent entry to LOYOLA through Mangyan Road.

On 17 December 1976, to avert violence, Solid Homes, Inc., instituted the instant case, docketed as Civil Case No. Q-22450, before the then Court of First Instance of Rizal and prayed that LA VISTA be enjoined from preventing and obstructing the use and passage of LOYOLA residents through Mangyan Road. LA VISTA in turn filed a third-party complaint against ATENEO. On 14 September 1983 the trial court issued a preliminary injunction in favor of Solid Homes, Inc. (affirming an earlier order of 22 November 1977), directing LA VISTA to desist from blocking and preventing the use of Mangyan Road. The injunction order of 14 September 1983 was however nullified and set aside on 31 May 1985 by the then Intermediate Appellate Court 1 in AC-G.R. SP No. 02534. Thus in a petition for review on certiorari, docketed as G.R. No. 71150, Solid Homes, Inc., assailed the nullification and setting aside of the preliminary injunction issued by the trial court. Meanwhile, on 20 November 1987 the Regional Trial Court of Quezon City rendered a decision on the merits 2 in Civil Case No. Q-22450 affirming and recognizing the easement of right-of-way along Mangyan Road in favor of Solid Homes, Inc., and ordering LA VISTA to pay damages thus ACCORDINGLY, judgment is hereby rendered declaring that an easement of a right-of-way exists in favor of the plaintiff over Mangyan Road, and, consequently, the injunction prayed for by the plaintiff is granted, enjoining thereby the defendant, its successors-in-interest, its/their agents and all persons acting for and on its/their behalf, from closing, obstructing, preventing or otherwise refusing to the plaintiff, its successors-in-interest, its/their agents and all persons acting for and on its/their behalf, and to the public in general, the unobstructed ingress and egress on Mangyan Road, which is the boundary road between the La Vista Subdivision on one hand, and the Ateneo de Manila University, Quezon City, and the Loyola Grand Villas Subdivision, Marikina, Metro Manila, on the other; and, in addition the defendant is ordered to pay the plaintiff reasonable attorney's fees in the amount of P30,000.00. The

defendant-third-party plaintiff is also ordered to pay the third-party defendant reasonable attorney's fees for another amount of P15,000.00. The counter-claim of the defendant against the plaintiff is dismissed for lack of merit. With costs against the defendant. Quite expectedly, LA VISTA appealed to the Court of Appeals, docketed as CA-G.R. CV No. 19929. On 20 April 1988 this Court, taking into consideration the 20 November 1987 Decision of the trial court, dismissed the petition docketed as G.R. No. 71150 wherein Solid Homes, Inc., sought reversal of the 31 May 1985 Decision in AC-G.R. SP No. 02534 which nullified and set aside the 14 September 1983 injunction order of the trial court. There we said Considering that preliminary injunction is a provisional remedy which may be granted at any time after the commencement of the action and before judgment when it is established that the plaintiff is entitled to the relief demanded and only when his complaint shows facts entitling such reliefs (Section 3(a), Rule 58) and it appearing that the trial court had already granted the issuance of a final injunction in favor of petitioner in its decision rendered after trial on the merits (Sections 7 & 10, Rule 58, Rules of Court), the Court resolved to Dismiss the instant petition having been rendered moot and academic. An injunction issued by the trial court after it has already made a clear pronouncement as to the plaintiff's right thereto, that is, after the same issue has been decided on the merits, the trial court having appreciated the evidence presented, is proper, notwithstanding the fact that the decision rendered is not yet final (II Moran, pp. 81-82, 1980 ed.) Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merit of the main case for injunction. The merit of the main case having been already determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and effect. 3 On the other hand, in CA-G.R. CV No. 19929, several incidents were presented for resolution: two (2) motions filed by Solid Homes, Inc., to cite certain officers of LA VISTA for contempt for alleged violation of the injunction ordaining free access to and egress from Mangyan Road, to which LA VISTA responded with its own motion to cite Solid Homes, Inc., for contempt; a motion for leave to intervene and to re-open Mangyan Road filed by residents of LOYOLA; and, a petition praying for the issuance of a restraining order to enjoin the closing of Mangyan Road. On 21 September 1989 the incidents were resolved by the Court of Appeals 4 thus 1.Defendant-appellant La Vista Association, Inc., its Board of Directors and other officials and all persons acting under their orders and in their behalf are ordered to allow all residents of Phase I and II of Loyola Grand Villas unobstructed right-of-way or passage through the Mangyan Road which is the boundary between the La Vista Subdivision and the Loyola Grand Villas Subdivision; 2.The motion to intervene as plaintiffs filed by the residents of Loyola Grand Villas Subdivision is GRANTED; and 3.The motions for contempt filed by both plaintiff-appellee and defendant-appellant are DENIED. This resolution is immediately executory. 5 On 15 December 1989 both motions for reconsideration of Solid Homes, Inc., and LA VISTA were

denied. In separate petitions, both elevated the 21 September 1989 and 15 December 1989 Resolutions of the Court of Appeals to this Court. The petition of Solid Homes, Inc., docketed as G.R. No. 91433, prayed for an order directing the appellate court to take cognizance of and hear the motions for contempt, while that of LA VISTA in G.R. No. 91502 sought the issuance of a preliminary injunction to order Solid Homes, Inc., ATENEO and LOYOLA residents to desist from intruding into Mangyan Road. On 22 May 1990, pending resolution of G.R. Nos. 91433 and 91502, the Second Division of the Court of Appeals 6 in CA-G.R. CV No. 19929 affirmed in toto the Decision of the trial court in Civil Case No. Q-22450. On 6 September 1990 the motions for reconsideration and/or re-raffle and to set the case for oral argument were denied. In view of the affirmance of the Decision by the Court of Appeals in CA-G.R. CV No. 19929 this Court dismissed the petition in G.R. No. 91502 for being moot as its main concern was merely the validity of a provisional or preliminary injunction earlier issued. We also denied the petition in G.R. No. 91433 in the absence of a discernible grave abuse of discretion in the ruling of the appellate court that it could not entertain the motions to cite the parties for contempt "because a charge of contempt committed against a superior court may be filed only before the court against whom the contempt has been committed" (Sec. 4, Rule 71, Rules of Court). 7 Consequently we are left with the instant case where petitioner LA VISTA assails the Decision of respondent Court of Appeals affirming in toto the Decision of the trial court which rendered a judgment on the merits and recognized an easement of right-of-way along Mangyan Road, permanently enjoining LA VISTA from closing to Solid Homes, Inc., and its successors-in-interest the ingress and egress on Mangyan Road. In its first assigned error, petitioner LA VISTA argues that respondent appellate court erred in disregarding the decisions in (a) La Vista Association, Inc., v. Hon. Ortiz, 8 affirmed by this Court in Tecson v. Court of Appeals; 9 (b) La Vista Association, Inc., v. Hon. Leviste, 10 affirmed by this Court in Rivera v. Hon. Intermediate Appellate Court; 11 and, (c) La Vista v. Hon. Mendoza, 12 and in holding that an easement of right-of-way over Mangyan Road exists. 13 We do not agree with petitioner. The reliance of petitioner on the cited cases is out of place as they involve the issuance of a preliminary injunction pending resolution of a case on the merits. In the instant case, however, the subject of inquiry is not merely the issuance of a preliminary injunction but the final injunctive writ which was issued after trial on the merits. A writ of preliminary injunction is generally based solely on initial and incomplete evidence. The opinion and findings of fact of a court when issuing a writ of preliminary injunction are interlocutory in nature and made even before the trial on the merits is terminated. Consequently there may be vital facts subsequently presented during the trial which were not obtaining when the writ of preliminary injunction was issued. Hence, to equate the basis for the issuance of a preliminary injunction with that for the issuance of a final injunctive writ is erroneous. And it does not necessarily mean that when a writ of preliminary injunction issues a final injunction follows. Accordingly, respondent Court of Appeals in its assailed Decision rightly held that We are unswayed by appellant's theory that the cases cited by them in their Brief (pages 17 and 32) and in their motion for early resolution (page 11, Rollo) to buttress the first assigned error, are final judgments on the merits of, and therefore res judicata to the instant query. It is quite strange that appellant was extremely cautious in not mentioning this doctrine but the vague disquisition nevertheless points to this same tenet, which upon closer examination negates the very proposition. Generally, it is axiomatic that res judicata will attach in favor of La Vista if and when the case under review was disposed of on the merits and with finality (Manila Electric Co. vs. Artiaga, 50 Phil. 144; 147; S . Diego

vs. Carmona, 70 Phil. 281; 283; cited in Comments on the Rules of Court, by Moran, Volume II, 1970 edition, page 365; Roman Catholic Archbishop vs. Director of Lands, 35 Phil. 339; 350-351, cited in Remedial Law Compendium, by Regalado, Volume 1, 1986 Fourth Revised Edition, page 40). Appellants suffer from the mistaken notion that the "merits" of the certiorari petitions impugning the preliminary injunction in the cases cited by it are tantamount to the merits of the main case, subject of the instant appeal. Quite the contrary, the socalled "final judgments'' adverted to dealt only with the propriety of the issuance or non-issuance of the writ of preliminary injunction, unlike the present recourse which is directed against a final injunctive writ under Section 10, Rule 58. Thus the invocation of the disputed matter herein is misplaced. 14

We thus repeat what we said in Solid Homes, Inc., v. La Vista 15 which respondent Court of Appeals quoted in its assailed Decision 16 Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merits of the main case for injunction. The merits of the main case having been already determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and effect. Petitioner LA VISTA in its lengthy Memorandum also quotes our ruling in Ramos, Sr., v. Gatchalian Realty, Inc., 17 no less than five (5) times 18 To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right-of-way provided by the petitioner's subdivision for its buyers simply because Gatchalian Avenue allows petitioner a much greater ease in going to and coming from the main thoroughfare is to completely ignore what jurisprudence has consistently maintained through the years regarding an easement of a right-of-way, that 'mere convenience for the dominant estate is not enough to serve as its basis. To justify the imposition of this servitude, there must be a real, not a fictitious or artificial, necessity for it' (See Tolentino, Civil Code of the Philippines, Vol. II, 2nd ed., 1972, p. 371) Again this is misplaced. Ramos, Sr., v. Gatchalian Realty, Inc., 19 concerns a legal or compulsory easement of right-of-way Since there is no agreement between the contending parties in this case granting a right-of-way by one in favor of the other, the establishment of a voluntary easement between the petitioner and the respondent company and/or the other private respondents is ruled out. What is left to examine is whether or not petitioner is entitled to a legal or compulsory easement of a right-of-way which should be distinguished from a voluntary easement. A legal or compulsory easement is that which is constituted by law for public use or for private interest. By express provisions of Arts. 649 and 650 of the New Civil Code, the owner of an estate may claim a legal or compulsory right-of-way only after he has established the existence of four (4) requisites, namely, (a) the estate is surrounded by other immovables and is without

adequate outlet to a public highway; (b) after payment of the proper indemnity; (c) the isolation was not due to the proprietor's own acts; and, (d) the right-of-way claimed is at a point least prejudicial to the servient estate, and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. 20 A voluntary easement on the other hand is constituted simply by will or agreement of the parties. From the facts of the instant case it is very apparent that the parties and their respective predecessors-in-interest intended to establish an easement of right-of-way over Mangyan Road for their mutual benefit, both as dominant and servient estates. This is quite evident when: (a) the Tuasons and the Philippine Building Corporation in 1949 stipulated in par. 3 of their Deed of Sale with Mortgage that the "boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide, one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the vendors;" (b) the Tuasons in 1951 expressly agreed and consented to the assignment of the land to, and the assumption of all the rights and obligations by ATENEO, including the obligation to contribute seven and one-half meters of the property sold to form part of the 15-meter wide roadway; (c) the Tuasons in 1958 filed a complaint against MARYKNOLL and ATENEO for breach of contract and the enforcement of the reciprocal easement on Mangyan Road, and demanded that MARYKNOLL set back its wall to restore Mangyan Road to its original width of 15 meters, after MARYKNOLL constructed a wall in the middle of the 15-meter wide roadway; (d) LA VISTA President Manuel J. Gonzales admitted and clarified in 1976, in a letter to ATENEO President Fr. Jose A. Cruz, S.J., that "Mangyan Road is a road fifteen meters wide, onehalf of which is taken from your property and the other half from the La Vista Subdivision. So that the easement of a right-of-way on your 7 m. portion was created in our favor and likewise an easement of right-of-way was created on our 7 m. portion of the road in your favor;" (e) LA VISTA, in its offer to buy the hillside portion of the ATENEO property in 1976, acknowledged the existence of the contractual right-of-way as it manifested that the mutual right-of-way between the Ateneo de Manila University and La Vista Homeowners' Association would be extinguished if it bought the adjacent ATENEO property and would thus become the owner of both the dominant and servient estates; and, (f) LA VISTA President Luis G. Quimson, in a letter addressed to the Chief Justice, received by this Court on 26 March 1997, acknowledged that "one-half of the whole length of (Mangyan Road) belongs to La Vista Assn., Inc. The other half is owned by Miriam (Maryknoll) and the Ateneo in equal portions;" These certainly are indubitable proofs that the parties concerned had indeed constituted a voluntary easement of right-of-way over Mangyan Road and, like any other contract, the same could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. Thus respondent Court of Appeals did not commit a reversible error when it ruled that Concerning the pivotal question posed herein on the existence of an easement, we are of the belief, and thus hereby hold that a right-of-way was properly appreciated along the entire route of Mangyan Road. Incidentally, the pretense that the court a quo erred in holding that Mangyan Road is the boundary road between La Vista and Ateneo (page 31, Appellant's Brief) does not raise any critical eyebrow since the same is wholly irrelevant to the existence of a servitude thereon from their express admission to the contrary (paragraph 1, Answer). One's attention should rather be focused on the contractual stipulations in the deed of sale between the Tuason Family and the Philippine Building Corporation (paragraph 3, thereof) which were incorporated in the deed of assignment with assumption of mortgage by the Philippine Building Corporation in favor of Ateneo (first paragraph, page 4 of the

deed) as well as in the deed of sale dated October 24, 1976 when the property was ultimately transferred by Ateneo to plaintiff-appellee. Like any other contractual stipulation, the same cannot be extinguished except by voluntary rescission of the contract establishing the servitude or renunciation by the owner of the dominant lots (Chuanico vs. Ibaez, 7 CA Reports, 2nd Series, 1965 edition, pages 582; 589, cited in Civil Law Annotated, by Padilla, Volume II, 1972 Edition, pages 602-603), more so when the easement was implicitly recognized by the letters of the La Vista President to Ateneo dated February 11 and April 28, 1976 (page 22, Decision; 19 Ruling Case Law 745). The free ingress and egress along Mangyan Road created by the voluntary agreement between Ateneo and Solid Homes, Inc., is thus legally demandable (Articles 619 and 625, New Civil Code) with the corresponding duty on the servient estate not to obstruct the same so much so that When the owner of the servient tenement performs acts or constructs works impairing the use of the servitude, the owner of the dominant tenement may ask for the destruction of such works and the restoration of the things to their condition before the impairment was committed, with indemnity for damages suffered (3 Sanchez Roman 609). An injunction may also be obtained in order to restrain the owner of the servient tenement from obstructing or impairing in any manner the lawful use of the servitude (Resolme v. Lazo, 27 Phil. 416; 417; 418)." (Commentaries and Jurisprudence on the Civil Code of the Philippines, by Tolentino, Volume 2, 1963 edition, page 320). 21 Resultantly, when the court says that an easement exists, it is not creating one. For, even an injunction cannot be used to create one as there is no such thing as a judicial easement. As in the instant case, the court merely declares the existence of an easement created by the parties. Respondent court could not have said it any better It must be emphasized, however, that We are not constituting an easement along Mangyan Road, but merely declaring the existence of one created by the manifest will of the parties herein in recognition of autonomy of contracts (Articles 1306 and 619, New Civil Code; Tolentino, supra, page 308; Civil Code of the Philippines, by Paras, Volume II, 1984 edition, page 549). 22 The argument of petitioner LA VISTA that there are other routes to LOYOLA from Mangyan Road is likewise meritless, to say the least. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements like in the case at bar. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity. 23 That there is no contract between LA VISTA and Solid Homes, Inc., and thus the court could not have declared the existence of an easement created by the manifest will of the parties, is devoid of merit. The predecessors-in-interest of both LA VISTA and Solid Homes, Inc., i.e., the Tuasons and the Philippine Building Corporation, respectively, clearly established a contractual easement of right-of-way over Mangyan Road. When the Philippine Building Corporation transferred its

rights and obligations to ATENEO the Tuasons expressly consented and agreed thereto. Meanwhile, the Tuasons themselves developed their property into what is now known as LA VISTA. On the other hand, ATENEO sold the hillside portions of its property to Solid Homes, Inc., including the right over the easement of right-of-way. In sum, when the easement in this case was established by contract, the parties unequivocally made provisions for its observance by all who in the future might succeed them in dominion. cdtai

The contractual easement of right-of-way having been confirmed, we find no reason to delve on the issue concerning P.D. No. 957 which supposedly grants free access to any subdivision street to government or public offices within the subdivision. In the instant case, the rights under the law have already been superseded by the voluntary easement of right-of-way. Finally, petitioner questions the intervention of some LOYOLA residents at a time when the case was already on appeal, and submits that intervention is no longer permissible after trial has been concluded. Suffice it to say that in Director of Lands v. Court of Appeals, 24 we said It is quite clear and patent that the motions for intervention filed by the movants at this stage of the proceedings where trial has already been concluded, a judgment thereon had been promulgated in favor of private respondent and on appeal by the losing party . . . the same was affirmed by the Court of Appeals and the instant petition for certiorari to review said judgment is already submitted for decision by the Supreme Court, are obviously and manifestly late, beyond the period prescribed under . . . Section 2, Rule 12 of the Rules of Court (now Sec. 2, Rule 19, 1997 Rules of Civil Procedure). But Rule 12 of the Rules of Court, like all other Rules therein promulgated, is simply a rule of procedure, the whole purpose and object of which is to make the powers of the Court fully and completely available for justice. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of contending parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adopted to obtain that thing. In other words, it is a means to an end. The denial of the motions for intervention arising from the strict application of the Rule due to alleged lack of notice to, or the alleged failure of, movants to act seasonably will lead the Court to commit an act of injustice to the movants, to their successors-in-interest and to all purchasers for value and in good faith and thereby open the door to fraud, falsehood and misrepresentation, should intervenors' claims be proven to be true. After all, the intervention does not appear to have been filed to delay the proceedings. On the contrary, it seems to have expedited the resolution of the case as the incidents brought forth by the intervention, which could have been raised in another case, were resolved together with the issues herein resulting in a more thorough disposal of this case. WHEREFORE, the Decision of respondent Court of Appeals dated 22 May 1990 and its Resolution dated 6 September 1990, which affirmed the Decision of the RTC-Br. 89, Quezon City, dated 20 November 1987, are AFFIRMED.

SO ORDERED.

[G.R. No. 136996. December 14, 2001.] EDILBERTO ALCANTARA, FLORENCIO VILLARMIA, POLICARPIO OBREGON, + RICARDO ROBLE, ESCOLASTICA ONDONG, ESTEBAN RALLOS, HENRY SESBINO, SERGIO SESBINO, MANUEL CENTENO, + RENATO CRUZ, MARCELINO CENEZA, BUENAVENTURA ONDONG, and BENJAMIN HALASAN, petitioners, vs. CORNELIO B. RETA, JR., respondent.

Pedro F. Alcantara, Jr. for petitioners. Garcia Iigo De Guzman Sarsaba Heje & Associates for private respondent. SYNOPSIS Petitioners filed a complaint for the exercise of their right of first refusal to purchase subject property in accordance with Section 3(g) of P.D. No. 1517, claiming they are the legitimate tenants or lessees thereof. Both the trial court and the CA dismissed the complaint. On appeal, the Supreme Court held: that P.D. No. 1517, otherwise known as the "Urban Land Reform Act," pertains to areas proclaimed as Urban Land Reform Zones; that subject land is beyond the ambit of P.D. No. 1517 since it has not been proclaimed as an Urban Land Reform Zone; that the applicable law is BP Blg. 25 for failure of petitioners to pay rentals; and that petitioners are not the legitimate tenants contemplated by PD No. 1517, who can exercise the right of first refusal. aECSHI SYLLABUS 1.CIVIL LAW; LEASE; THE URBAN LAND REFORM ACT (P.D. NO. 1517); PERTAINS TO AREAS PROCLAIMED AS URBAN LAND REFORM ZONES; CASE AT BAR. Presidential Decree No. 1517, otherwise known as "The Urban Land Reform Act," pertains to areas proclaimed as Urban Land Reform Zones. Consequently, petitioners cannot claim any right under the said law since the land involved is not an ULRZ. 2.ID.; ID.; ID.; ID.; RIGHT OF FIRST REFUSAL MAY BE AVAILED OF ONLY BY LEGITIMATE TENANT OF THE LAND; CASE AT BAR. To be able to qualify and avail oneself of the rights and privileges granted by the said decree, one must be: (1) a legitimate tenant of the land for ten (10) years or more; (2) must have built his home on the land by contract; and, (3) has resided continuously for the last ten (10) years. Obviously, those who do not fall within the said category cannot be considered "legitimate tenants" and, therefore, not entitled to the right of first refusal to purchase the property should the owner of the land decide to sell the same at a reasonable price within a reasonable time. Respondent Reta denies that he has lease agreements with petitioners Edilberto Alcantara and Ricardo Roble. Edilberto Alcantara, on the other hand, failed to present proof of a lease agreement other than his testimony in court that he bought the house that he is occupying from his father-in-law. Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62) coconut trees for P186 from where he gathered tuba. This arrangement would show that it is a usufruct and not a lease. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. Petitioner Roble was allowed to construct his house on the land because it would facilitate his gathering of tuba. This would be in the nature of a personal easement under Article 614 of the Civil Code. Whether the amicable settlement is valid or not, the conclusion

would still be the same since the agreement was one of usufruct and not of lease. Thus, petitioner Roble is not a legitimate tenant as defined by Presidential Decree No. 1517. As to the other petitioners, respondent Reta admitted that he had verbal agreements with them. This notwithstanding, they are still not the legitimate tenants contemplated by Presidential Decree No. 1517, who can exercise the right of first refusal. DECISION

PARDO, J p: The Case In this petition for review, 1 petitioners seek to review the decision 2 of the Court of Appeals affirming the decision 3 of the Regional Trial Court, Davao City, Branch 14, dismissing petitioners' complaint for the exercise of the right of first refusal under Presidential Decree No. 1517, injunction with preliminary injunction, attorney's fees and nullity of amicable settlement. cdaisa The Facts Edilberto Alcantara, Florencio Villarmia, Policarpio Obregon, Ricardo Roble, Escolastica Ondong, Esteban Rallos, Henry Sesbino, Sergio Sesbino, Manuel Centeno, Renato Cruz, Marcelo Ceneza, Buenaventura Ondong and Benjamin Halasan, filed with the Regional Trial Court, Davao City, Branch 14, a complaint 4 against Cornelio B. Reta, Jr. for the exercise of the right of first refusal under Presidential Decree No. 1517, injunction with preliminary injunction, attorney's fees and nullity of amicable settlement. The plaintiffs claimed that they were tenants or lessees of the land located in Barangay Sasa, Davao City, covered by Transfer Certificate of Title No. T-72594, owned by Reta; that the land has been converted by Reta into a commercial center; and that Reta is threatening to eject them from the land. They assert that they have the right of first refusal to purchase the land in accordance with Section 3(g) of Presidential Decree No. 1517 since they are legitimate tenants or lessees thereof. They also claimed that the amicable settlement executed between Reta and Ricardo Roble was void ab initio for being violative of Presidential Decree No. 1517. On the other hand, Reta claimed that the land is beyond the ambit of Presidential Decree No. 1517 since it has not been proclaimed as an Urban Land Reform Zone; that the applicable law is Batas Pambansa Blg. 25 for failure of the plaintiffs to pay the rentals for the use of the land; and that the amicable settlement between him and Ricardo Roble was translated to the latter and fully explained in his own dialect. aTEScI On March 8, 1994, the trial court rendered a decision dismissing the complaint and ordering the plaintiffs to pay Reta certain sums representing rentals that had remained unpaid. 5 On April 6, 1994, plaintiffs appealed the decision to the Court of Appeals. 6 On December 9, 1998, the Court of Appeals promulgated a decision 7 affirming in toto the decision of the trial court. Hence, this appeal. 8 The Issue

The issue is whether petitioners have the right of first refusal under Presidential Decree No. 1517. The Court's Ruling The petition is without merit. The area involved has not been proclaimed an Urban Land Reform Zone (ULRZ). In fact, petitioners filed a petition with the National Housing Authority requesting that the land they were occupying be declared as an ULRZ. On May 27, 1986, the request was referred to Mr. Jose L. Atienza, General Manager, National Housing Authority, for appropriate action. 9 The request was further referred to acting mayor Zafiro Respicio, Davao City, as per 2nd Indorsement dated July 1, 1986. 10 Clearly, the request to have the land proclaimed as an ULRZ would not be necessary if the property was an ULRZ. Presidential Decree No. 1517, otherwise known as "The Urban Land Reform Act," pertains to areas proclaimed as Urban Land Reform Zones. 11 Consequently, petitioners cannot claim any right under the said law since the land involved is not an ULRZ. To be able to qualify and avail oneself of the rights and privileges granted by the said decree, one must be: (1) a legitimate tenant of the land for ten (10) years or more; (2) must have built his home on the land by contract; and, (3) has resided continuously for the last ten (10) years. Obviously, those who do not fall within the said category cannot be considered "legitimate tenants" and, therefore, not entitled to the right of first refusal to purchase the property should the owner of the land decide to sell the same at a reasonable price within a reasonable time. 12 Respondent Reta denies that he has lease agreements with petitioners Edilberto Alcantara and Ricardo Roble. 13 Edilberto Alcantara, on the other hand, failed to present proof of a lease agreement other than his testimony in court that he bought the house that he is occupying from his father-in-law. 14 Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62) coconut trees for P186 from where he gathered tuba. This arrangement would show that it is a usufruct and not a lease. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. 15 Petitioner Roble was allowed to construct his house on the land because it would facilitate his gathering of tuba. This would be in the nature of a personal easement under Article 614 of the Civil Code. 16 Whether the amicable settlement 17 is valid or not, the conclusion would still be the same since the agreement was one of usufruct and not of lease. Thus, petitioner Roble is not a legitimate tenant as defined by Presidential Decree No. 1517. As to the other petitioners, respondent Reta admitted that he had verbal agreements with them. This notwithstanding, they are still not the legitimate tenants contemplated by Presidential Decree No. 1517, who can exercise the right of first refusal. A contract has been defined as "a meeting of the minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.'' 18 Clearly, from the moment respondent Reta demanded that the petitioners vacate the premises, the verbal lease agreements, which were on a monthly basis since rentals were paid monthly, 19 ceased to exist as there was termination of the lease. ACTaDH Indeed, none of the petitioners is qualified to exercise the right of first refusal under P.D. No.

1517. Another factor which militates against petitioners' claim is the fact that there is no intention on the part of respondent Reta to sell the property. Hence, even if the petitioners had the right of first refusal, the situation which would allow the exercise of that right, that is, the sale or intended sale of the land, has not happened. P.D. No. 1517 applies where the owner of the property intends to sell it to a third party. 20

The Fallo WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the decision of the Court of Appeals 21 and the resolution denying reconsideration thereof. No costs. SO ORDERED.

[G.R. No. 114170. January 15, 1999.] PROSPERITY CREDIT RESOURCES, INC., petitioner, vs. COURT OF APPEALS and METROPOLITAN FABRICS, INC., respondents.

Gonzales Batiller Bilog and Associates for petitioner. Ceferino Padua Law Office for private respondent. SYNOPSIS On November 7, 1991, petitioner filed an injunctive suit in the Regional Trial Court of Quezon City. Petitioner alleged that in violation of the terms of the Memorandum of Agreement, private respondent refused to allow petitioner to make excavations on one side of the access road for the installation of water pipes; that it banned entry of petitioner's truck and those of its tenants between 11:30 AM to 1:00 PM and 10:00 PM to 7:00 AM; and that it subjected the vehicles to unnecessary searches. Petitioner sought the issuance of a writ of preliminary injunction requiring private respondent to allow to proceed with the MWSS installation project over the road lot in question, to allow petitioner's and its tenant's delivery trucks and other vehicles access to the same at any time and without undergoing unnecessary searches, and to otherwise recognize petitioner's right of way over said lot. After trial on the merits, the court a quo granted petitioner's prayer of preliminary injunction. Aggrieved by the decision, private respondent filed a petition for certiorari and prohibition with the Court of Appeals to annul the order of the Regional Trial Court. On November 26, 1994, the appellate court granted the petition and set aside the questioned orders after finding that the trial court had acted with grave abuse of discretion in issuing them. Its motion for reconsideration having been denied, petitioner filed the petition for review on certiorari. TaDSCA The Supreme Court found the petition devoid of merit. The Court ruled that the right of the complainant to justify the issuance of preliminary mandatory injunction must be clear and unmistakable because it requires the performance of a particular act or acts and thus tends to do more than maintain the status quo. In this case, the Court found that the word "passage" stated in the memorandum does not clearly and unmistakably convey a meaning that includes a right to install water pipes on the access road. To achieve a meaning such as that which petitioner proposes requires the consideration of evidence showing the parties' intention in using the word which can only be done during trial on the merits. Until such time, petitioner cannot claim to have a clear and unmistakable right justifying the issuance of a writ of preliminary mandatory injunction in this case. Thus, the trial court should have observed caution and denied petitioner's application for the preliminary writ. Accordingly, the decision of the Court of Appeals dated November 26, 1993 and its resolution dated February 28, 1994 were affirmed. THESAD SYLLABUS REMEDIAL LAW; CIVIL PROCEDURE; PROVISIONAL REMEDIES; PRELIMINARY MANDATORY INJUNCTION; JUSTIFICATION FOR THE ISSUANCE THEREOF; THE PARTY SEEKING THE ISSUANCE OF WRIT OF PRELIMINARY MANDATORY INJUNCTION MUST HAVE A CLEAR AND UNMISTAKABLE RIGHT. As held in Pelejo v. Court of Appeals (117 SCRA 665 [1982]), to justify the issuance of the writ of preliminary mandatory injunction the following must be shown: (1) that the complainant has a clear legal right; (2) that his right has been violated and the invasion is material and substantial; and (3) that there is an urgent and permanent necessity for the writ to prevent serious damage. The right of the complainant must be clear and unmistakable

because, unlike an ordinary preliminary injunction, the writ of preliminary mandatory injunction requires the performance of a particular act or acts and thus tends to do more than maintain the status quo. In the case at bar, petitioner anchors its alleged right to the preliminary mandatory injunction on the Memorandum of Undertaking, dated September 18, 1987, which provides that: [T]he above-described lot, being an existing private road, will remain open to ingress and egress for whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES, INC. or its successors-in-interest. There is no question as to the meaning of the terms "ingress" and "egress." They give petitioner the right to use the private road as a means of entry into and exit from its property on the northwestern side of the compound. The question concerns the meaning of the phrase "for whatever kind of passage." The trial court read this phrase to mean that petitioner had the right to make excavations on the side of the access road in order to install a network of water pipes. The word "passage" does not, however, "clearly and unmistakably" convey a meaning that includes a right to install water pipes on the access road. The ordinary meaning of the word, as defined in Webster's Dictionary, is that it is "the act or action of passing: movement or transference from one place or point to another." Its legal meaning is not different. It means, according to Black's Law Dictionary, the "act of passing; transit; transition." To achieve a meaning such as that which petitioner proposes requires the consideration of evidence showing the parties' intention in using the word which can only be done during trial on the merits. Until such time, petitioner cannot claim to have a "clear and unmistakable" right justifying the issuance of a writ of preliminary mandatory injunction in this case. Thus, the trial court should have observed caution and denied petitioner's application for the preliminary writ. TDAHCS DECISION

MENDOZA, J p: For review in this case is a decision 1 of the Sixth Division of the Court of Appeals in CA G.R. 28684-SP dated November 26, 1993 setting aside a writ of preliminary mandatory injunction issued by the Regional Trial Court of Quezon City (Branch 95). cdasia On August 3, 1984, petitioner Prosperity Credit Resources, Inc. gave a loan to private respondent Metropolitan Fabrics, Inc. 2 To secure the payment of the loan, private respondent mortgaged to petitioner seven parcels of land located at 685 Tandang Sora Avenue, Bo. Banlat, Quezon City. 3 The lots comprise a commercial compound with Tandang Sora Avenue as the nearest public road. By October 27, 1987, private respondent's loan amounted to P10.5 million. 4 As private respondent defaulted in the payment of the loan, petitioner foreclosed the mortgage and, in the ensuing public bidding, became the highest bidder and purchaser of the seven (7) lots subject of the mortgage. Later, private respondent negotiated with petitioner for the redemption of three lots covered by TCT Nos. 317705, 317706, and 317707, 5 all located on the southern and middle portions of the compound. As the reacquisition of these three lots by private respondent would leave the remaining four lots on the northwestern side without access to Tandang Sora Avenue, petitioner acceded to private respondent's request on the condition that petitioner be given a right of way on the existing private road which forms part of the area to be redeemed by private respondent. The parties' agreement was embodied in a Memorandum of Undertaking, dated September 18, 1987, the full text of which reads: 6 MEMORANDUM OF UNDERTAKING

KNOW ALL MEN THESE PRESENTS: That METROPOLITAN FABRICS, INC. is the registered owner of that certain land covered by Transfer Certificate of Title No. 317709, more particularly described as follows: A parcel of land (Lot 11 (Existing Road) of the consolidationsubdn. plan (LRC) Pcs-27706, approved as a non-subdn. project, being a portion of the consolidation of Lots 373-E, (LRC) Psd-16383; 377-B, Fls-2163-D; 377-C-1, 2, 3, & 4 (LRC) Psd-5025; 377-C-5-A, & B, (LRC) Psd-9474; 384-A & 387-B-1, (LRC) Psd-254813; 388-A & C, Psd-30663; 388-B-1, 2, 3, 4 & 5, Psd-54827; 389-A-1, 2 & 3, 389-B-1 (LRC) Psd-10087; and 389-B-2-C, (LRC) Psd-18842; LRC (GLRO) Rec. No. 5975) situated in the Bo. of Banlat, Quezon City, Metro Manila, Is. of Luzon . . . containing of an area of FIVE THOUSAND THREE HUNDRED SIXTY SEVEN (5,367) SQUARE METERS, more or less. That the above-described lot, being an existing private road, will remain open to ingress and egress for whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES, INC. or its successors-in-interest, the mortgagee of Lots 1, 4, 5, 6, 7, 8 and 9 of the consolidationsubdivision plan, Pcs-27706 of Transfer Certificates of Title Nos. 317699, 317702, 317703, 317704, 317705, 317706 & 317707, respectively, in the name of METROPOLITAN FABRICS, INC. DONE this Sep. 18, 1987 in the city of Manila. On November 7, 1991, petitioner filed an injunctive suit in the Regional Trial Court of Quezon City (Branch 95). Petitioner alleged that, in violation of the terms of the Memorandum of Agreement, private respondent refused to allow petitioner to make excavations on one side of the access road for the installation of water pipes; that it banned entry of petitioner's trucks and those of its tenants between 11:30 A.M. to 1:00 P.M. and 10:00 P.M. to 7:00 A.M.; and that it subjected the vehicles to unnecessary searches. Petitioner sought the issuance of a writ of preliminary mandatory injunction requiring private respondent "to allow [petitioner] to proceed with the MWSS installation project over the road lot in question, to allow [petitioner's] and [its] tenants' delivery trucks and other vehicles access to the same at any time and without undergoing unnecessary searches, and to otherwise recognize [petitioner's] right of way over the said lot." 7 Petitioner prayed that, after trial, the writ be made final. On December 21, 1991, private respondent filed an answer with counterclaim, alleging that petitioner's right to undertake excavations on the access road was not provided for in the Memorandum of Undertaking. 8 As counterclaim, private respondent alleged that it was petitioner which caused damage to private respondent's tenants by undertaking, without its consent, construction works on the access road which raised its level to about a meter and caused serious flooding of the nearby buildings whenever it rained; 9 and that, as a result, its tenants demanded compensation for damage to their merchandise and equipment occasioned by the flooding. Private respondent prayed for P2.1 million as counterclaim. 10

The trial court required the parties to submit position papers in connection with petitioner's prayer for a preliminary mandatory injunction. 11 After the parties had done so, the trial court granted, on February 14, 1992, petitioner's prayer for a preliminary writ, conditioned upon the

filing by petitioner of a bond in the amount of P500,000.00. The trial court said in part: . . . [T]he court finds that to deny plaintiff's application for a preliminary mandatory injunction writ would be to disregard its right of way in respect of the road lot in question, a right clearly set forth in defendant's memorandum of undertaking of September 18, 1987; indeed, no cogent reason appears to warrant treating the terms "for whatever kind of passage" contained therein as nothing more than a useless, meaningless redundancy . . . ACCORDINGLY, plaintiff's subject application is hereby granted and the Court hereby directs that upon the filing and approval of the corresponding injunction bond in the sum of P500,000.00, . . . let corresponding preliminary mandatory injunction writ be issued directing defendant to allow plaintiff to proceed with its MWSS installation project over the road lot in question, to allow plaintiff's and its tenant's delivery trucks and other vehicles access to the same at any time and without undergoing unnecessary searches, and to otherwise recognize plaintiff's right of way over the said road lot, pending the termination of this litigation and/or unless a contrary order is issued by this Court . . . 12 On March 2, 1992, the trial court issued the writ upon filing of the required bond by petitioner. 13 Private respondent filed a motion for reconsideration of the orders granting injunction which the trial court denied. 14 However, it increased the injunction bond to P2.1 million. 15 Private respondent filed a petition for certiorari and prohibition with the Court of Appeals to annul the aforesaid orders, dated February 14, 1992 and March 2, 1992, of the trial court. On November 26, 1994, the appellate court granted the petition and set aside the questioned orders after finding that the trial court had acted with grave abuse of discretion in issuing them. 16 Its motion for reconsideration having been denied on February 28, 1994, petitioner filed the present petition for review on certiorari alleging that: 17 1.THE COURT OF APPEALS GRAVELY ERRED WHEN IT EXERCISED CERTIORARI POWERS TO REVERSE AN ERROR OF JUDGMENT COMMITTED BY THE REGIONAL TRIAL COURT, UPON FINDING THAT THE LOWER COURT "MISUNDERSTOOD" THE RIGHT OF HEREIN PETITIONER PROSPERITY OVER THE ROAD LOT IN QUESTION. 2.THE COURT OF APPEALS GROSSLY ERRED WHEN IT APPLIED THE DOCTRINE ENUNCIATED IN RIVAS V. SEC (190 SCRA 295) DESPITE THE DIVERSITY IN FACTUAL SETTING OF THE INSTANT CASE VIS-A-VIS THAT OBTAINING IN THE CITED CASE. LLjur 3.THE COURT OF APPEALS GRAVELY ERRED WHEN IT DECIDED THE MERITS OF THE MAIN CASE IN A CERTIORARI PROCEEDING PRACTICALLY RENDERING ACADEMIC THE HEARING PROPER YET TO BE CONDUCTED BY THE REGIONAL TRIAL COURT. 4.THE COURT OF APPEALS GRAVELY ERRED WHEN IT MADE FINDINGS OF FACTS ON THE BASIS OF THE REPRESENTATION AND RECITAL OF FACTS MADE IN THE MFI PETITION AND PROCEEDED TO INTERPRET THE MEMORANDUM OF UNDERTAKING WITHOUT CONSIDERING FACTS AND CIRCUMSTANCES SURROUNDING ITS EXECUTION WHICH WERE YET TO BE ESTABLISHED IN A FULL BLOWN TRIAL.

The assignment of errors raises a single question: whether, in issuing a writ of preliminary mandatory injunction ordering private respondent to allow petitioner to undertake excavations along the access road for the purpose of installing water pipes, the Regional Trial Court gravely abused its discretion. As held in Pelejo v. Court of Appeals, 18 to justify the issuance of the writ of preliminary mandatory injunction the following must be shown: (1) that the complainant has a clear legal right; (2) that his right has been violated and the invasion is material and substantial; and (3) that there is an urgent and permanent necessity for the writ to prevent serious damage. The right of the complainant must be clear and unmistakable because, unlike an ordinary preliminary injunction, the writ of preliminary mandatory injunction requires the performance of a particular act or acts 19 and thus tends to do more than maintain the status quo. 20 In the case at bar, petitioner anchors its alleged right to the preliminary mandatory injunction on the Memorandum of Undertaking, dated September 18, 1987, which provides that: [T]he above-described lot, being an existing private road, will remain open to ingress and egress for whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES, INC. or its successors-in-interest. There is no question as to the meaning of the terms "ingress" and "egress." They give petitioner the right to use the private road as a means of entry into and exit from its property on the northwestern side of the compound. The question concerns the meaning of the phrase "for whatever kind of passage." The trial court read this phrase to mean that petitioner had the right to make excavations on the side of the access road in order to install a network of water pipes. The word "passage" does not, however, "clearly and unmistakably" convey a meaning that includes a right to install water pipes on the access road. The ordinary meaning of the word, as defined in Webster's Dictionary, is that it is "the act or action of passing: movement or transference from one place or point to another." 21 Its legal meaning is not different. It means, according to Black's Law Dictionary, the "act of passing; transit; transition." 22 To achieve a meaning such as that which petitioner proposes requires the consideration of evidence showing the parties' intention in using the word which can only be done during trial on the merits. Until such time, petitioner cannot claim to have a "clear and unmistakable" right justifying the issuance of a writ of preliminary mandatory injunction in this case. Thus, the trial court should have observed caution and denied petitioner's application for the preliminary writ. Petitioner contends that resort should be made to facts surrounding the execution of the Memorandum of Undertaking which, according to it, shows the intention of the parties to give petitioner the right to install water pipes along the side of the access road. 23 It cites Rule 130 11 24 of the 1964 Rules of Court, which provides: SEC. 11.Interpretation according to circumstances. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. That is precisely what we are saying. The recourse petitioner proposes must await the presentation of the parties' evidence during trial and the determination of their intention must be made by the trial court, not by this Court. Petitioner cannot circumvent the process by asking this Court to determine the facts surrounding the execution of their agreement. Indeed, for us to undertake such inquiry would be to expand the scope of the present review and intrude into the domain of the trial court. Petitioner will have ample opportunity to substantiate its allegations on this point during the trial of the case. Rule 130 11, which petitioner invokes, is actually a rule for

interpretation of documentary evidence formally offered at the trial. It does not apply to preliminary proceedings concerning the issuance of ancillary remedies. Anent petitioner's contention that the writ of certiorari does not lie because the error sought to be corrected is an error of judgment, suffice it to say that the lower court acted with grave abuse of discretion in issuing the writ of preliminary mandatory injunction despite the doubt on petitioner's right to it. WHEREFORE, the decision of the Court of Appeals, dated November 26, 1993, and its resolution, dated February 28, 1994, are hereby AFFIRMED. cdasia SO ORDERED.

[G.R. No. 130845. November 27, 2000.] BRYAN U. VILLANUEVA, petitioner, vs. HON. TIRSO D.C. VELASCO in his capacity as Presiding Judge of the Regional Trial Court of Quezon City, Branch 88, JULIO N. SEBASTIAN and SHIRLEY LORILLA, respondents.

The Law Firm of Chan Robles & Associates for petitioner. Pedro I. Rodriguez for private respondents. SYNOPSIS Petitioner Villanueva is the registered owner of a parcel of land previously owned by spouses Gabriel. When Villanueva bought the land, there was a small house on the southeastern portion, occupying one meter of the two-meter wide easement of right of way the Gabriel spouses granted to the Espinolas, predecessors-in-interest of private respondent. Unknown to Villanueva, even before he bought the land, there was already a final and executory decision enforcing the right to easement where the small house encroaching the same was ordered demolished by Judge Velasco. The easement in the case at bar is both voluntary and legal easement. The settled rule is that the needs of the dominant estate determine the width of the easement. Hence, petitioner ought to demolish the small house on the easement obstructing the entry of private respondents' cement mixer and motor vehicle. And even if the easement was not annotated in the title of the land and the notice of lis pendens was not recorded with the Register of Deeds, in legal easement, the servient estate is bound to provide the dominant estate ingress from and egress to the public highway. Further, the decision enforcing the right of easement against the previous owner, is conclusive and binding upon the successor-in-interest. SYLLABUS 1.CIVIL LAW; PROPERTY; EASEMENTS; KINDS; LEGAL EASEMENT; ELUCIDATED. [A] legal easement is one mandated by law, constituted for public use or for private interest, and becomes a continuing property right. As a compulsory easement, it is inseparable from the estate to which it belongs, as provided for in said Article 617 of the Civil Code. The essential requisites for an easement to be compulsory are: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity. has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; (4) the right of way claimed is at a point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest. DAESTI 2.ID.; ID.; ID.; THE NEEDS OF THE DOMINANT ESTATE DETERMINE THE WIDTH OF THE EASEMENT. [T]he small house occupying one meter of the two-meter wide easement obstructs the entry of private respondents' cement mixer and motor vehicle. One meter is insufficient for the needs of private respondents. It is well-settled that the needs of the dominant estate determine the width of the easement. Conformably then, petitioner ought to demolish whatever edifice obstructs the easement in view of the needs of private respondents' estate. 3.ID.; ID.; ID.; LEGAL EASEMENT BINDING EVEN IF NOT ANNOTATED IN THE TITLE AND NOTICE OF LIS PENDENS OF CASE ENFORCING THE SAME NOT RECORDED. Petitioner's

second proposition, that he is not bound by the contract of easement because the same was not annotated in the title and that a notice of lis pendens of the complaint to enforce the easement was not recorded with the Register of Deeds, is obviously unmeritorious . . . it is in the nature of legal easement that the servient estate (of petitioner) is legally bound to provide the dominant estate (of private respondents in this case) ingress from and egress to the public highway. 4.REMEDIAL LAW; CIVIL PROCEDURE; EFFECT OF JUDGMENTS; DECISION IN A CASE BINDING TO THE PARTIES AND SUCCESSOR-IN-INTEREST AFTER CASE COMMENCED. Petitioner's last argument that he was not a party to Civil Case No. Q-91-8703 and that he had not been given his day: in court, is also without merit [in view of] Rule 39, Sec. 47, of the Revised Rules of Court. . . . [A] decision in a case is conclusive and binding upon the parties to said case and those who are their successor in interest by title after said case has been commenced or filed in court. In this case, private respondents. . . initiated; Civil Case No. Q-91-8703 on May 8,1991, against the original owners. . . . Title in the name of petitioner was entered in the Register of Deeds on March 24, 1995, after he bought the property from the bank which had acquired it from the Gabriels. Hence, the decision in Civil Case No. Q-91-8703 binds petitioner. For, although not a party to the suit, he is a successor-in-interest by title subsequent to the commencement of the action in court. DECISION

QUISUMBING, J p: This petition for certiorari assails (1) the decision 1 dated December 27, 1996 of the Court of Appeals in CA-G.R. SP No. 39166, dismissing petitioner's petition for review under Rule 65 with prayer for the issuance of a cease and desist order and/or temporary restraining order, and (2) the resolution 2 dated August 14, 1997 denying the subsequent motion for reconsideration. Petitioner Bryan Villanueva is the registered owner of the parcel of land covered by Transfer Certificate of Title No. 127862 of the Register of Deeds of Quezon City. He bought it from Pacific Banking Corporation, the mortgagee of said property. The bank had acquired it from the spouses Maximo and Justina Gabriel at a public auction on March 19, 1983. When petitioner bought the parcel of land there was a small house on its southeastern portion. It occupied one meter of the two-meter wide easement of right of way the Gabriel spouses granted to the Espinolas, predecessors-in-interest of private respondents, in a Contract of Easement of Right of Way. The pertinent portion of the contract dated November 28, 1979, states: . . . in order to have an access to and from their aforementioned land where their houses are constructed and to have an outlet to Tandang Sora Ave. which is the nearest public road and the least burdensome to the servient estate and to third persons, it would be necessary for them to pass through spouses MAXIMO GABRIEL and JUSTINA CAPUNO's land and for this purpose, a path or passageway of not less than two (2) meters wide of said spouses' property is necessary for the use of ROMEO, RODOLFO, NENITA and AURORA ESPINOLA and for all their needs in entering their property. xxx xxx xxx WHEREFORE, in view of the fact that the property of the ESPINOLA had been bought by them from MAXIMO CAPUNO, father of MAXIMO

GABRIEL, spouses MAXIMO GABRIEL and JUSTINA CAPUNO hereby agree and permit RODOLFO, ROMEO, NENITA and AURORA ESPINOLA and their families to have a permanent easement of right of way over the aforementioned property of said spouses limited to not more than two meters wide, throughout the whole length of the southeast side of said property and as specifically indicated in the attached plan which is made an integral part of this Contract as Annex "A"; This Agreement shall be binding between the parties and upon their heirs, successors, assigns, without prejudice in cases of sale of subject property that will warrant the circumstances. 3 Unknown to petitioner, even before he bought the land, the Gabriels had constructed the aforementioned small house that encroached upon the two-meter easement. Petitioner was also unaware that private respondents, Julio Sebastian and Shirley Lorilla, had filed on May 8, 1991, Civil Case No. Q-91-8703, for easement, damages and with prayer for a writ of preliminary injunction and/or restraining order against the spouses Gabriel. 4 As successors-in-interest, Sebastian and Lorilla wanted to enforce the contract of easement. On May 15, 1991, the trial court issued a temporary restraining order. On August 13, 1991, it issued a writ of preliminary mandatory injunction ordering the Gabriels to provide the right of way and to demolish the small house encroaching on the easement. On August 15, 1991, the Gabriels filed a motion for reconsideration which was also denied. Thus, they filed a petition for certiorari before the Court of Appeals. On March 26, 1992, the Eighth Division of the Court of Appeals dismissed the petition and upheld the RTC's issuances. The decision became final and executory on July 31, 1992. 5 On January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City, Branch 88, issued an Alias Writ of Demolition. On June 20, 1995, the sheriff tried to demolish the small house pursuant to the writ. Petitioner filed a Third Party Claim with Prayer to Quash Alias Writ of Demolition. He maintains that the writ of demolition could not apply to his property since he was not a party to the civil case. His Third Party Claim with prayer to quash the writ of demolition was denied for lack of merit on August 16, 1995. 6 The motion for reconsideration as well as the Supplemental Motion for Reconsideration dated September 12, 1995 were denied on October 19, 1995. 7 Petitioner, thereafter, filed a petition for certiorari before the Court of Appeals, docketed as CAG.R. SP No. 39166, asserting that the existence of the easement of right of way was not annotated in his title and that he was not a party to Civil Case No. Q-91-8703, hence the contract of easement executed by the Gabriels in favor of the Espinolas could not be enforced against him. The Court of Appeals dismissed the petition for lack of merit and denied the reconsideration, disposing thus: WHEREFORE, the instant petition is hereby dismissed by this court for lack of merit. No costs considering the failure of private respondents to file their comment, despite notice. 8 Hence, this instant petition. Petitioner now avers that the appellate court erred in declaring, (1)THAT FOLLOWING THE ESSENCE OF INHERENCE AND INTRANSMISSIBILITY OF AN EASEMENT, A RIGHT OF WAY CAN EXIST

EVEN IF THEY ARE NOT EXPRESSLY STATED OR ANNOTATED ON THE TORRENS TITLE;

(2)THAT PETITIONER, AS PROSPECTIVE BUYER, SHOULD HAVE EXERCISED ORDINARY PRUDENCE BY TAKING THE INITIATIVE TO DETERMINE THAT AN EASEMENT HAS BEEN CONSTITUTED ON THE PROPERTY HE INTENDS TO BUY; AND, (3)THAT IN AS MUCH AS THE HEREIN PETITIONER IS NOT A PARTY TO CIVIL CASE NO. Q-91-8703, HE CANNOT BE BOUND BY ANY JUDGMENT OR ORDER RENDERED THEREIN. 9 Primarily, the issue is whether the easement on the property binds petitioner. Petitioner argues it could not be enforced against him. First, he says that a right of way cannot exist when it is not expressly stated or annotated on the Torrens title. According to him, even if an easement is inherent and inseparable from the estate to which it actively belongs as provided in Art. 617 of the Civil Code, 10 the same is extinguished when the servient estate is registered and the easement was not annotated in said title conformably with Section 39 of the Land Registration Law. Second, petitioner points out that the trial court erred when it faulted him for relying solely on the clean title of the property he bought, as it is well-settled that a person dealing with registered land is not required to go beyond what is recorded in the title. He adds that it is private respondents who should have made sure their right of way was safeguarded by having the same annotated on the title with the Register of Deeds. He adds that Section 76 of P.D. No. 1529 11 also requires that when a case is commenced involving any right to registered land under the Land Registration Law (now the Property Registration Decree), any decision on it will only be effectual between or among the parties thereto, unless a notice of lis pendens of such action is filed and registered in the registry office where the land is recorded. There was no such annotation in the title of the disputed land, according to petitioner. Lastly, since he was not a party to Civil Case No. Q-91-8703, petitioner argues that he cannot be bound by the writ of demolition and be forcibly divested of a portion of his land without having his day in court. STcADa Private respondents Sebastian and Lorilla, for their part, adopted the disquisition of the appellate court as their Comment and asked for the dismissal of the petition and P100,000.00 in damages. In its decision the appellate court, citing the decision of the lower court, stressed that unlike other types of encumbrance of real property, a servitude like a right of way can exist even if they are not expressly stated or annotated as an encumbrance in a Torrens title because servitudes are inseparable from the estates to which they actively or passively belong. Moreover, Villanueva was bound by the contract of easement, not only as a voluntary easement but as a legal easement. A legal easement is mandated by law, and continues to exists unless its removal is provided for in a title of conveyance or the sign of the easement is removed before the execution of the conveyance conformably with Article 649 12 in accordance with Article 617 13 of the Civil Code. At the outset, we note that the subject easement (right of way) originally was voluntarily constituted by agreement between the Gabriels and the Espinolas. But as correctly observed by the Court of Appeals, the easement in the instant petition is both (1) an easement by grant or a voluntary easement, and (2) an easement by necessity or a legal easement. A legal easement is one mandated by law, constituted for public use or for private interest, and becomes a continuing property right. 14 As a compulsory easement, it is inseparable from the estate to which it belongs, as provided for in said Article 617 of the Civil Code. The essential requisites for an

easement to be compulsory are: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; (4) the right of way claimed is at a point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest. 15 The trial court and the Court of Appeals have declared the existence of said easement (right of way). This finding of fact of both courts below is conclusive on this Court, 16 hence we see no need to further review, but only to re-affirm, this finding. The small house occupying one meter of the two-meter wide easement obstructs the entry of private respondents' cement mixer and motor vehicle. One meter is insufficient for the needs of private respondents. It is well-settled that the needs of the dominant estate determine the width of the easement. 17 Conformably then, petitioner ought to demolish whatever edifice obstructs the easement in view of the needs of private respondents' estate. Petitioner's second proposition, that he is not bound by the contract of easement because the same was not annotated in the title and that a notice of lis pendens of the complaint to enforce the easement was not recorded with the Register of Deeds, is obviously unmeritorious. As already explained, it is in the nature of legal easement that the servient estate (of petitioner) is legally bound to provide the dominant estate (of private respondents in this case) ingress from and egress to the public highway. Petitioner's last argument that he was not a party to Civil Case No. Q-91-8703 and that he had not been given his day in court, is also without merit. Rule 39, Sec. 47, of the Revised Rules of Court: SECTION 47.Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a)In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b)In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c)In any other litigation between the same parties or their successorsin-interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (Italics supplied). Simply stated, a decision in a case is conclusive and binding upon the parties to said case and those who are their successor-in-interest by title after said case has been commenced or filed in

court. 18 In this case, private respondents, Julio Sebastian and Shirley Lorilla, initiated Civil Case No. Q-91-8703 on May 8, 1991, 19 against the original owners, the spouses Maximo and Justina Gabriel. Title in the name of petitioner was entered in the Register of Deeds 20 on March 24, 1995, after he bought the property from the bank which had acquired it from the Gabriels. Hence, the decision in Civil Case No. Q-91-8703 binds petitioner. For, although not a party to the suit, he is a successor-in-interest by title subsequent to the commencement of the action in court. WHEREFORE, the instant petition is DENIED. The assailed decision and resolution of the Court of Appeals are AFFIRMED. Costs against petitioner. SO ORDERED.

[G.R. No. 114348. September 20, 2000.] NATIONAL IRRIGATION ADMINISTRATION, petitioner, vs. COURT OF APPEALS and DICK MANGLAPUS, respondents.

The Solicitor General for petitioner. Atty. Simeon T. Agustin for private respondent. SYNOPSIS A free patent over three (3) hectares of land, situated in barrio Baybayog, Municipality of Alcala, Province of Cagayan, was issued in the name of respondent's predecessor-in-interest Vicente Manglapus. The land grant provided, among others, a condition that the land shall be subject to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109, 110, 111, 112, 113 and 114 of Commonwealth Act No. 141, as amended. Subsequently, respondent Manglapus acquired the lot from Vicente Manglapus by absolute sale. Sometime in 1982, the NIA entered into a contract with Villamar Development Construction. Under the contract, the NIA was to construct canals in Amulung, Cagayan and Alcala, Cagayan. The NIA then entered a portion of Manglapus' land and made diggings and fillings thereon. Manglapus filed with the Regional Trial Court, Tuguegarao, Cagayan a complaint for damages against the NIA. Manglapus alleged that the NIA's diggings and fillings destroyed the agricultural use of his land and that no reasonable compensation was paid for its taking. The trial court rendered a decision in favor of Manglapus ordering the defendant to pay plaintiff the sum of One Hundred Fifty Thousand Six Hundred Pesos (P150,600.00) and Fifty Thousand (P50,000.00) Pesos as compensatory damages. On appeal, the Court of Appeals affirmed in toto the decision of the trial court. Hence, the present petition by the NIA. The Supreme Court granted the petition and set aside the decision of the trial court awarding Manglapus just compensation. According to the Court, the Transfer Certificate of Title and the Original Certificate of Title covering the subject parcel of land contained a reservation granting the government a right of way over the land covered therein. The transfer certificate of title, on which both the trial court and Court of Appeals relied, contained such a reservation, and said reservation, unlike the other provisos imposed on the grant, was not limited by any time period and thus is a subsisting condition. SYLLABUS 1.CIVIL LAW; PROPERTY; EASEMENT OF A RIGHT OF WAY; THE TRANSFER CERTIFICATE OF TITLE OF THE SUBJECT PARCEL OF LAND CONTAINED RESERVATION GRANTING THE GOVERNMENT A RIGHT OF WAY OVER THE LAND COVERED THEREIN. We agree with NIA that the Transfer Certificate of Title and the Original Certificate of Title covering the subject parcel of land contained a reservation granting the government a right of way over the land covered therein. The transfer certificate of title, on which both the trial court and Court of Appeals relied, contains such a reservation. It states that title to the land shall be: ". . . subject to the provisions of said Land Registration Act and the Public Land Act, as well as those of Mining Laws, if the land is mineral, and subject, further to such conditions contained in the original title as may be subsisting." Under the Original Certificate of Title, there was a reservation and condition that the land is subject to "to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109, 110, 111, 112, 113 and 114, Commonwealth Act No. 141, as amended." This reservation, unlike the other provisos

imposed on the grant, was not limited by any time period and thus is a subsisting condition. Section 112, Commonwealth Act No. 141, provides that lands granted by patent, "shall further be subject to a right of way not exceeding twenty meters in width for public highways, railroads, irrigation ditches, aqueducts, telegraphs and telephone lines, and similar works as the Government or any public or quasi-public service or enterprises, including mining or forest concessionaires may reasonably require for carrying on their business, with damages for the improvements only." We note that the canal NIA constructed was only eleven (11) meters in width. This is well within the limit provided by law. Manglapus has therefore no cause to complain. TAIEcS 2.ID.; ID.; ID.; LEGAL EASEMENT OF RIGHT OF WAY EXISTS IN FAVOR OF THE GOVERNMENT IN CASE AT BAR. Article 619 of the Civil Code provides that, "Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements." In the present case, we find and declare that a legal easement of a right-of-way exists in favor of the government. The land was originally public land, and awarded to respondent Manglapus by free patent. The ruling would be otherwise if the land were originally private property, in which case, just compensation must be paid for the taking of a part thereof for public use as an easement of a right of way. Neither can Manglapus argue that he was a transferee or buyer in good faith. Under the Torrens system, for one to be a buyer in good faith and for value, the vendee must see the transfer certificate of title and rely upon the same. Here, the annotation on the transfer certificate of title imposed on Manglapus the duty to refer to the conditions annotated on the back of the original certificate of title. This, he did not do. The law cannot protect him. Manglapus is a transferee with notice of the liens annotated in the title. DECISION

PARDO, J p: This case is an appeal 1 from the decision of the Court of Appeals 2 affirming in toto the decision of the Regional Trial Court, Branch 04, Tuguegarao, Cagayan 3 ruling in favor of private respondent Dick Manglapus (hereinafter referred to as "Manglapus"), and ordering petitioner National Irrigation Administration (hereinafter referred to as "NIA") to pay Manglapus one hundred fifty thousand six hundred pesos (P150,600.00), and fifty thousand pesos (P50,000.00), as compensatory damages, five thousand pesos (P5,000.00), as attorney's fees, and two thousand pesos (P2,000.00), as litigation expenses and costs. First, the relevant facts. On June 28, 1963, a free patent over three (3) hectares of land, situated in barrio Baybayog, municipality of Alcala, province of Cagayan was issued in the name of respondent's predecessorin-interest, Vicente Manglapus, and registered under Original Certificate of Title No. P-24814, in his name. The land was granted to Vicente Manglapus, 4 subject to the following proviso expressly stated in the title: 5 "TO HAVE AND TO HOLD the said tract of land, with the appurtenances thereunto of right belonging unto the said VICENTE MANGLAPUS and to his heirs and assigns forever, subject to the provisions of Sections 113, 121, 122 and 124 of Commonwealth Act. No. 141, as amended which provide that except in favor of the Government or any of its branches, units, or institutions, the land hereby acquired shall be inalienable and shall not be subject to encumbrance for a period of five (5) years from

the date of this patent, and shall not be liable for the satisfaction of any debt contracted prior to the expiration of that period; that it shall not be encumbered, alienated, or transferred to any person, corporation, association or partnership not qualified to acquire lands of the public domain under said Commonwealth Act No. 141, as amended; and that it shall not be subject to any encumbrance whatsoever in favor of any corporation, association or partnership except with the consent of the grantee and the approval of the Secretary of Agriculture and Natural Resources and solely for educational, religious or charitable purposes or for a right of way; and subject finally to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109, 110, 111, 112, 113 and 114 of Commonwealth Act No. 141 as amended, and the right of the Government to administer and protect the timber found thereon for a term of five (5) years from the date of this patent, provided, however, that the grantee or heirs may cut and utilize such timber for his or their personal use (emphasis ours)." ACDTcE Subsequently, respondent Manglapus acquired the lot from Vicente Manglapus by absolute sale. On July 18, 1974, the land was registered in Dick Manglapus' name under Transfer Certificate of Title No. T-26658 of the Register of Deeds for the Province of Cagayan. 6 The land is particularly described as follows: 7 "Lot No. 3559, Pls-497, with an area of 30,438 square meters, and covered by TRANSFER CERTIFICATE OF TITLE NO. T-26658, and Tax Declaration No. 11985." Sometime in 1982, NIA entered into a contract with Villamar Development Construction. Under the contract, NIA was to construct canals in Amulung, Cagayan and Alcala, Cagayan. NIA then entered a portion of Manglapus' land and made diggings and fillings thereon. 8 The portion of Manglapus' land entered into by NIA is described as follows: 9 "In a sketch prepared by NIA's employee labeled as NIA canal "Lateral "D", with an area of 7,880 square meters, which is a portion of Lot 3559, Pls-497." On March 14, 1991, Manglapus filed with the Regional Trial Court, Tuguegarao, Cagayan a complaint for damages against NIA. 10 Manglapus alleged that NIA's diggings and fillings destroyed the agricultural use of his land and that no reasonable compensation was paid for its taking. 11 Despite service of notice of the pre-trial conference, 12 NIA did not appear at the pre-trial conference. 13 On December 3, 1991, the trial court declared NIA in default and received Manglapus' evidence ex parte. 14 On December 23, 1991, the trial court rendered a decision in favor of Manglapus, thus: 15 "WHEREFORE, and in consideration of the foregoing, the Court finds preponderance of evidence in favor of the plaintiff and against the defendant:

"1)Ordering the defendant to pay plaintiff the sum of One Hundred Fifty Thousand Six Hundred Pesos (P150,600.00) and Fifty Thousand (P50,000.00) Pesos as compensatory damages; "2)Ordering the defendant to pay to plaintiff the sum of Five Thousand Pesos (P5,000.00) as attorney's fees and Two Thousand Pesos (P2,000.00) as litigation expenses; and "3)To pay the cost of the suit. "SO ORDERED." On January 27, 1992, NIA filed a motion to lift the order of default dated December 3, 1991, and to set aside the afore-quoted decision of December 23, 1991. 16 On June 3, 1992, the trial court issued a resolution denying the motion for lack of merit. 17 On July 17, 1992, NIA filed a notice of appeal to the Court of Appeals. 18 On July 27, 1992, the trial court gave due course to the appeal and ordered the transmission of the original records to the Court of Appeals. 19 On July 30, 1992, Manglapus filed a motion for execution of judgment with the trial court. 20 On August 7, 1992, the NIA through the Solicitor General filed an opposition to the motion for execution. 21 On August 17, 1992, the trial court declared that since the notice of appeal of NIA was given due course, the motion for execution was "moot and academic." 22 On March 8, 1994, the Court of Appeals promulgated its decision, the dispositive portion of which reads: 23 "WHEREFORE, PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED in toto and the appeal is hereby DISMISSED. "SO ORDERED." Hence, this appeal. 24 The sole issue is whether the NIA should pay Manglapus just compensation for the taking of a portion of his property for use as easement of a right of way. We find that NIA is under no such obligation. We sustain the appeal. We agree with NIA that the Transfer Certificate of Title 25 and the Original Certificate of Title 26 covering the subject parcel of land contained a reservation granting the government a right of way over the land covered therein. 27 The transfer certificate of title, on which both the trial court and Court of Appeals relied, contains such a reservation. It states that title to the land shall be: 28 ". . . subject to the provisions of said Land Registration Act and the Public Land Act, as well as those of Mining Laws, if the land is mineral, and subject, further to such conditions contained in the original title as

may be subsisting (emphasis ours)." AHcaDC Under the Original Certificate of Title, 29 there was a reservation and condition that the land is subject to "to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109, 110, 111, 112, 113 and 114, Commonwealth Act No. 141, as amended." This reservation, unlike the other provisos 30 imposed on the grant, was not limited by any time period and thus is a subsisting condition. Section 112, Commonwealth Act No. 141, provides that lands granted by patent, "shall further be subject to a right of way not exceeding twenty meters in width for public highways, railroads, irrigation ditches, aqueducts, telegraphs and telephone lines, and similar works as the Government or any public or quasi-public service or enterprises, including mining or forest concessionaires may reasonably require for carrying on their business, with damages for the improvements only (emphasis ours)." We note that the canal NIA constructed was only eleven (11) meters in width. This is well within the limit provided by law. 31 Manglapus has therefore no cause to complain. Article 619 of the Civil Code provides that, "Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements." In the present case, we find and declare that a legal easement of a right-of-way exists in favor of the government. The land was originally public land, and awarded to respondent Manglapus by free patent. The ruling would be otherwise if the land were originally private property, in which case, just compensation must be paid for the taking of a part thereof for public use as an easement of a right of way. 32 Neither can Manglapus argue that he was a transferee or buyer in good faith. Under the Torrens system, for one to be a buyer in good faith and for value, the vendee must see the transfer certificate of title and rely upon the same. 33 Here, the annotation on the transfer certificate of title imposed on Manglapus the duty to refer to the conditions annotated on the back of the original certificate of title. This, he did not do. The law cannot protect him. Manglapus is a transferee with notice of the liens annotated in the title. One who deals with property registered under the Torrens system is charged with notice of burdens and claims that are annotated on the title. 34 WHEREFORE, the Court GRANTS the petition for review on certiorari, and REVERSES the decision of the Court of Appeals in CA-G.R. CV No. 38835. IN LIEU THEREOF, the Court SETS ASIDE the decision of the Regional Trial Court, Branch IV, Tuguegarao, Cagayan in Civil Case No. 4266, and DISMISSES the complaint. No costs. SO ORDERED.

[G.R. No. L-3422. June 13, 1952.] HIDALGO ENTERPRISES, INC., petitioner, vs. GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents.

Quisumbing, Sycip, Quisumbing & Salazar for petitioner. Antonio M. Moncado for respondents. SYLLABUS 1.ATTRACTIVE NUISANCE, WHAT CONSTITUTES; MAINTAINER LIABLE FOR INJURIES CAUSED TO CHILD. One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. 2.ID.; DOCTRINE NOT APPLICABLE TO SWIMMING POOL OR WATER TANK. The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. DECISION

BENGZON, J p: This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario. It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an iceplant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tank were barely a foot high from the surface of the ground. Through the wide gate entrance, which was continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiffs' son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his age, entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver, having died of 'asphyxia secondary to drowning.'". The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accident to persons entering its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this jurisdiction in Taylor

vs. Manila Electric 16 Phil., 8. The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. (See 65 C. J. S., p. 455.) The principal reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C. J. S., p. 458). Now, is a swimming pool or water tank an instrumentality or appliance likely to attract little children in play? In other words is the body of water an attractive nuisance? The great majority of American decisions say no. "The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location." "There are numerous cases in which the attractive nuisance doctrine has been held not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . ." (65 C. J. S., p. 476 et seg. citing decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.) In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows: "Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an 'attractive nuisance.' Anderson vs. ReithRiley Const. Co., N. E., 2nd, 184, 185; 184, 185; 112 Ind. App., 170. Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by petitioner - that the parents of the boy were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual needs no further discussion. The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs.