G.R. No.

72837 April 17, 1989 ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA and ANTONIO SISON, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, 4th CIVIL CASES DIVISION, MARSAL & CO., INC., and MARCELINO FLORETE, SR., respondents. PARAS, J.: Before Us is a Petition for certiorari to review the Decision 1 dated August 14,1985 promulgated by respondent Intermediate Appellate Court in AC-G.R. C.V. No. 03781 which set aside the decision 2 rendered by the Regional Trial Court, 6th Judicial Region, Branch XXVI, Iloilo City, dated December 15, 1983 in Civil Case No. 12791. The case at bar arose from a complaint for recovery of damages filed by Marsal & Co., Inc. and Marcelino Florete, Sr. (private respondents herein) against defendants Jose C. Hernani, Ester J. Javellana, Rolando Demafiles, Cesar Crusada and Antonio Sison for allegedly denying plaintiffs' access to, and use of a canal leading to plaintiffs' property and to enjoin the City Mayor and City Engineer of Iloilo City from demolishing the existing structures within plaintiffs property serving as dike entrance gate to said canal situated at Barangay Navais, Mandurriao, Iloilo City. Before the pre-trial conference the complaint as against the City Mayor and City Engineer, was dismissed at the instance of plaintiffs on the ground that said defendants had agreed not to demolish the pendency of the action. At the pre-trial conference, on June 5,1979 the parties stipulated: ... (1) that plaintiff Marsal & Co., Inc., is presently the owner of the parcel of land adjoining the Iloilo River up to and adjacent the lot where the L. Borres Elementary School is located at Barangay Navais Mandurriao, Iloilo; (2) that in 1961, when Marcelino Florete, Sr. was still the owner of said Marsal property having acquired the same by purchase from its former owners sometime in 1959, there existed a main canal from the Iloilo River cutting across said property towards the lot where the said school is located and thru a canal that traverses the school premises going towards Lot 2344; (3) that sometime in July 1978, plaintiffs closed the dike entrance of the main canal to the canal running across the L. Borres Elementary School premises to Lot 2344; (4) that on petition of school P.T.A. officials of Barangay Navais, an ocular inspection of the premises was made as a result of which a report dated November 7, 1978 was prepared and submitted by 2nd Asst. City Fiscal Serafin Abogado; (5) that before 1971, there were no houses standing within the school compound and premises of L. Borres Elementary School; (6) that at present, there are 15 to 16 houses in the said school compound one of which is the house of the barangay captain of Barangay Navais; (7) that some of those who signed the petition (Exh. "7") are not residents or occupants of the houses within the school compound; (8) that the photograph (Exh. "A") is the aerial photograph of the premises in question showing the location of the L. Borres Elementary School, the properties of the plaintiffs, the Iloilo River and the Borres property; (9) that the plaintiffs had demolished the dike connecting the main canal in plaintiffs' property with the canal running thru the school premises toward 2344; and (10) that defendant Director Jose C. Hernani had invited plaintiff Marcelino Florete, Sr. for conference concerning the complaint of the residents of Barangay Navais on July 28, and 31, 1978 as per Exhs. "9" and "10" (pp. 35-36, Rollo) The issues as defined by the parties are: (1) Whether or not them main canal and the canal traversing the premises of the L. Borres Elementary School going towards Lot 2344 existing only beginning 1961 as claimed by the plaintiffs or since time immemorial as contended by the defendants; (2) Whether or not it was plaintiff Marcelino Florete, Sr. who had constructed the main canal as well as the canal running thru the premises of the L. Borres Elementary School to Lot 2344; (3) Whether or not the closing of the dike entrance connecting the main canal with the canal running thru the school premises caused the flooding of the premises of L. Borres Elementary School and its vicinity; (4) whether or not an easement or servitude of water-right-of-way was constituted on the property of the plaintiffs as servient estate in favor of the L. Borres Elementary School land and nearby lands as dominant estates; (5) Whether or not defendants acted in their respective private or official capacities in dealing with the problem related to the canals in question; (6) Whether or not the defendant Ester Javellana had denied plaintiffs the use of the canal running from the main canal thru the school premises to Lot 2344 of the plaintiffs; (7) Whether or not the demolition or closure by plaintiffs of the entrance-dike connecting the main canal with the canal running thru the L. Borres Elementary School preventing the free flow of water to and from the school premises and vicinity violates the provisions of Presidential Decree 296; and (8) Whether or not either party may be held liable to the other for damages. (Rollo, pp. 35-37)

After due trial, judgment was rendered by the trial court, the dispositive portion reading as follows: WHEREFORE, judgment is hereby rendered dismissing plaintiffs' complaint. On defendants' counterclaim, the plaintiffs are hereby ordered to restore and reopen the dike entrance connecting the main canal with the canal running thru the premises of L. Borres Elementary School and to demolish any and all structures within plaintiffs' property that impede the free flow of water to and from the Iloilo River thru the said canals. Further, plaintiffs Marsal & Co., Inc. and Marcelino Florete, Sr. are hereby ordered to pay, jointly and severally, each of the defendants, Jose C. Hernani, Ester J. Javellana, Rolando Demafiles, Cesar Cruzada and Antonio Sison, the following sums, to wit: (1) P10,000.00 for moral damages and (2) P2,500.00 for exemplary damages and (3) P2,500.00 for and as attorney's fees of the total sum of P15,000.00 each, plus costs. SO ORDERED. (P. 46, Rollo) Not satisfied with said judgment, plaintiffs appealed to the Intermediate Appellate Court which rendered the assailed decision, its dispositive portion stating as follows: WHEREFORE, finding the decision appealed from not consistent with the facts and the law applicable, the same is hereby set aside and another one entered1. Granting the issuance of the writ of preliminary injunction sought in the complaint to become permanent upon the finality of this decision; 2. Ordering the defendants-appellees to respect plaintiffs' rights and to refrain from demolishing and/or causing the demolition of the dikes built by plaintiff (Florete, Sr.) on his property; Costs de oficio. SO ORDERED. (pp. 57-58, Rollo) Petitioners contend that the decision of the Appellate Court is contrary to law, its conclusions based entirely on speculations and conjectures and there is grave abuse of discretion in that the findings of fact are without competent evidence to support them. Petitioners argue that the respondent Appellate Court erred in holding: I That the canal in question was built by plaintiff-appellant purposely to make water available to its own Lot 2344. (Decision, p. 8) II That the plaintiff-appellant is the one that has the right of easement upon the lot occupied by the barrio school. Plaintiff-appellant is thus the dominant estate and not the L. Borres Elementary School. (Decision, p. 8) III That the school, in violation of the said easement, allowed other parties to use the canal for salt production in competition with the salt business of plaintiff-appellant which is conducted in Lot 2344. (Decision, p. 8)

IV That the canal which traverses plaintiff's property never benefitted the school. It was only after plaintiff built the canal starting from its fishpond up to its other property that the school benefited from the water coming from the river. (Decision, p. 10) V That aside from the plaintiff's property there is another parcel of land which is more than adequate to provide the drainage sought by the defendants and this is the Borres property. (Decision, p. 10) The petition is worthy of consideration. In the Appellate Court's decision, it is noted that said court relied heavily on the findings of facts of the trial court even to the extent of quoting such findings in its decision in support of its ruling. However, the conclusions reached by both courts were different. Petitioners now question the correctness of the conclusions drawn by the respondent Court of Appeals from the proven facts enumerated by the trial court. This determination as to the correctness of the conclusions drawn from the pleadings is a question of law which this Court is authorized to pass upon. There is no question of fact here because the facts are admittedly proven. Said facts are reproduced hereunder: The Court finds from the evidence that the main canal had been in existence long before defendant Marcelino Florete, Sr. acquired ownership of the land thru which the same passes from the Iloilo River up to the premises of what is now known as the L. Borres Elementary School. This fact was clearly brought to light by the testimonies of at least three witnesses, including a member of the Maranon family from whom Florete, Sr. acquired the land, in addition to the testimony of defendant Antonio Sison, Barangay Captain of Barangay Navais where the subject canal is situated. The Court, indeed, finds no reason to doubt the testimonies of these witnesses not only because they ring true throughout but also because the same emanate from reliable sources who had been actual residents of the place, having had occasions to take their bath in the same canal and with separate individual experiences incident thereto to relate. Severo Maranon, a public school teacher and one of the children of the late Buenaventura Maranon, a co-owner of the fishpond purchased by plaintiff Florete, Sr. testified that as early as 1948, when he was about 6 years old, he already knew the subject canal that passes thru their fishpond at Barangay Navais from the Iloilo River towards the premises of the school. On one occasion in 1954, while taking a bath in this canal when still a young boy, he nearly drowned, reasons for which he has not forgotten the said canal. Another witness, Ignacio Gencianeo, 75, a former employee of the Bureau of Public Highways, testified that when he was still single, being a resident of Barangay Navais, he used to take a bath in the canal near the Iloilo River which is deeper than the other portions. He recalled an incident where a woman, named Toribia Tajaon, while picking shells at the sides of the dikes, fell into the canal and nearly got drowned had he not helped her. He last took a bath in the canal in 1937 before he got employed at the Bureau of Public Highways. Witness Gencianeo also testified that he was then the Barrio Captain of Navais when the Barrio School was constructed in 1940 on the land owned by Lucas Borres. Francisco Regacho, 56, testifying for the defendants, declared that in 1948, his house was located beside the canal near the Iloilo River and the land thereat was then owned by Buenaventura Maranon. When the barrio school was constructed in 1940, he worked filling sand on the school site. He was able to lease the school fishpond from 1973 to 1977. This fishpond draws its supply of salt water from the canal coming from the Iloilo River. He had previously worked this main canal in 1948 as part of his job in the fishpond of Buenaventura Maranon fixing its dikes in order to make water flow freely towards the fishpond of the Maranon family. Witness Regacho further declared that when defendant Marcelino Florete, Sr. became owner of this Maranon fishpond, he was able to work on this canal where he dug the canal deeper up to Florete's land. He testified that during high tide the water in the canal was only about 1/2 meter deep and there was no water during low tide and so Florets made the canal deeper.

Regacho also testified that there are two canals within the school premises, one going towards the land of Florete and the other to the land of Mirasol. These two canals met at the place where Florete closed the canal. The canal going towards Florete's land and that to Mirasol's land serve to empty rainwater to the Iloilo River. He further confirmed that the school fishpond has no other source of salt water except from the canal that connect to the main canal that starts from the Iloilo River. For his part, defendant Antonio Sison, 54, testified that he was born in Barangay Navais and has been its barangay captain since 1954 continuously up to the present. He first noticed the existence of the canal in 1933 when he reached the age of reason at the age of 8 years, said canal being about 300 meters long from the Iloilo River going towards the premises of the barrio school and to the land now known as Lot 2344 owned by Marcelino Florete. He also used to take a bath in this canal when still a small boy. Defendant Sison further declared that the brothers Pedro and Buenaventura Maranon were then the owners of the fishpond along which the canal runs starting from the Iloilo River towards the school premises when the Maranons sold the land to Florete sometime in 1959. Florete was not the one who constructed the canal but only made the same deeper. This construction of Florete took place in 1961 when Sison was also the barangay captain. He recalled Francisco Regacho was one of those who worked in making the canal deeper at the instance of Florete and that no employee from the City Engineer's Office inspected the canal during its repair undertaken by Florete and where Alfredo Emboltorio, as the one who managed the work in the canal. Defendant Sison went to see Pedro Maranon, who was once a co-owner of the land where the main canal passes, to request him to testify but the latter begged off by reason of his health and old age and, instead, executed an affidavit dated May 14, 1979 (Exh. "8") certifying to the effect that "since before the war until we sold the said land to Marcelino Florete, there exists a canal from the Iloilo River cutting our property down towards the lot where the school is located and thru a canal that traverses the school premises. (par. 4. Exh. "8") It is thus clear from the testimonies of defendants' witnesses that the main canal starting from the Iloilo River and the canal traversing the premises of the L. Borres Elem. School going toward lot 2344 existed long before defendant Florete, Sr. acquired ownership of the land of the Maranons and that, if at all, Florete merely caused to be made deeper that portion traversing the school premises. No less than the defendants' evidence itself proved the existence of the main canal. Thus, in his letter dated June 26,1961 embodied in Resolution No. 715 dated June 27,1961 of the Municipal Board of the City of Iloilo (Exh. "B") defendant Florete Sr. asked that he be allowed to build a canal within the premises of the barrio school up to his Lot 2344. It is not, therefore, a permit to build a canal from the Iloilo River for otherwise, Florete would have so stated in his said letter to the Board. This is so because there already existed a main canal from the Iloilo River. The canal traversing the school premises was likewise then already existing but not so deep that Florete wanted it constructed to be permanent. And in making this canal deeper, he started not from the Iloilo River but from his fishpond adjoining the school premises towards his lot 2344, Florete testified thus: Q. (Court) - From what point did you start? A From our fishpond traversing the Borres Elementary and then going to our lot. (TSN, July 5, 1979, page 22). Defendants presented in evidence a blueprint copy of the Cadastral Map. B. L. No. 3 (Exh. "F") to show that no natural waterway or creek existed in the pre that connected the Iloilo River to the fishpond premises. But this piece of evidence was rendered without any probative value when plaintiffs also presented Teodoro Simpas, Chief of the Surveys Division of the Bureau of Lands, Region IV, who testified that creeks and esteros are delienated in the cadastral map only if they are five (5) or more meters wide and, even less than five (5) meters wide, if there is continuous flow of water is to be determined by the surveyor who made the survey.

Here, it has been duly established that the canal in question starting from the Iloilo River is only about 3 meters wide for the first 100 meters long and then measures about 2 meters wide until it reaches Lot 2344 with a length of about 200 meters. And it has been shown that salt water coming from the Iloilo River flows in the canal during high tide where the water in the main canal reaches about one-half meter and about two (2) feet in the canal that traverses the school premises. In ordinary days, no water flows in the canal that cuts a the school premises . This explains why the canal in question was not indicated in the cadastral map during the 1913 survey. The canal is less than 5 meters wide and did not have a continuous flow of water except during high tide and during rainy season where it serves as drainage and empties flood waters into the Iloilo River. Defendants' closure of the dike's entrance connecting the main canal with the canal running thru the school premises, therefore, caused the flooding of the premises of the L. Borres Elementary School and its vicinity. This is so because during rainy season, said canal also serves as outlet of rain or flood waters that empties to the Iloilo River. Witnesses Ignacio Gencianeo, Francisco Regacho, Severo Maranon and Barangay Captain Antonio Sison were unanimous in declaring so. In his attempt to show that the closing of the dike entrance of the canal did not cause the flooding of the school premises and its vicinity, plaintiffs' witnesses Modesto Emboltorio, declared that flood in the school fishpond immediately disappears because water recedes to the Borres property. But it has been shown that the adjacent Borres property is higher in elevation compared to the school premises such that water in the school premises cannot flow towards that area. And because water has no other way out except thru the canal, the school premises and its vicinity get flooded once it rains and flood waters remain stagnant for days as shown by the photographs exhibits "3" and "3-A" taken on August 24,1978 and Exhibits "10" and "10-A" taken on August 15, 1979. The said photographs Exhibits "l 0" and "10-A" belied Emboltorio's testimony that there were no flood waters in that area when he testified in Court in the morning of August 14, 1979. That the premises of the school and its vicinity were flooded when it rained during the rainy season of 1978 immediately after the closing of the dike entrance of the canal is further shown by the report (Exh. "4") dated September 3, 1978 submitted by Carlos G. Brasileno, Asst. Complaint & Acting Officer, Barangay City secretariat and the 6th Indorsement (Exh. "'I") dated November 7,1978 of 2nd Asst. City Fiscal Serafin L. Abogado. These two officials were with the government teams that conducted ocular inspection of the place upon complaint of the residents therein and they actually saw for themselves the flooded situation of the place caused by plaintiffs' closure of the dike entrance of subject canal. To be sure, the defendants acted in their official capacities in dealing with the problem related to the canals in question. It has been sufficiently established that the school fishpond gets its supply of salt water directly from the Iloilo River passing thru the canal that traverses the school premises. Likewise, the residents of the place produce salt thru the use of plastic sheets using salt water drawn from the canal. Salt water in this canal is fresh and clean as the tide changes from the Iloilo River unlike in the fishpond nearby which is stagnant and polluted and not suitable for salt- making. The closure of the dike entrance of the canal deprived the school fishpond as well as the residents of the place of salt-water and placed the premises of the school and the surrounding vicinity in danger of being flooded when it rains so that the school officials, the defendants Ester Javellana, as district supervisor, Cesar Cruzada as head teacher and Rolando Demafiles as practical arts teacher and the barangay captain, Antonio Sison only did what were incumbent upon them to do as such school and barangay officials when they complained to higher authorities about the plaintiffs' closure of the canal in question. Indeed, there is no showing that the defendants school officials were motivated by their own personal interests when they complained against plaintiffs' action vis-a-vis the canal. Their effort were all directed towards the benefit of the school as well as for the school children who, in one way or another, had been adversely affected by the closure of the canal. These officials did not act privately for themselves but for public good and public interest. They expected no personal benefit in return. The same is true with the defendant barangay captain Antonio Sison who merely complied with his duty extending assistance to the residents of bringing their complaint to the authorities concerned. It was his duty to attend to the needs and problems of his barangay and its residents. The closure of the canal did not only deprive the residents of salt water for salt- making but also posed danger to them as in fact, during the ensuing rainy days in August of 1978, the place was flooded thus endangering the health and safety of the residents therein.

Then, too, defendant Col. Jose Hernani only did his duty as head of the Office of Civil Defense in attending to the complaint of the residents of the place. His office has jurisdiction over cases of calamity, flood and the like such that it was but proper, nay obligatory, on his part to act on their complaint against the closure of the canal that caused flood in Barangay Navais The fact is that plaintiffs are without any justifiable reason to close the canal. Defendants advanced that the district supervisor, defendant Ester Javellana, wrote Marcelino Florete Sr. a letter allegedly denying his use of the canal that traverses the school premises reason for which he closed the dike entrance and built an underground canal on the other side of his property going to his Lot 2344. But defendant Javellana explained that there was no such denial. What she meant when she wrote the letter to Marcelino Florete, Sr. was that plaintiffs could not lay pipes underneath the canal. Defendant Ester Javellana testified thus: Q Could you inform the Hon. Court Mrs. Javellana what impelled you to write Mr. Florete this letter? A My head teacher informed that they were going to lay or buy a 10 inch pipe in the canal which crosses the school that canal to my office one morning Feb. 22. Industrial Arts Teacher Mr. Rolando Demafiles and the Head Teacher, Mr. Cesar Cruzada. They were excited. There was already a 10 inch rubber tube running from Iloilo River crossing to the school to the bed of Mr. Florete. That they intend to bury and so I accompanied them to L. Borres Elementary School and saw for myself that there really was a 10 inch or 8 inch rubber pipe running across the school and was about to be buried. Q Why? Can you explain what would be the disadvantage if Mr. Florete bury those pipes on the canal that traverses the school? A The school maybe deprived of the water for their fishpond, that is one and the second, drainage canal which drains the school in case of flood will not be working anymore. Q Now, in your letter, you mentioned here and I read quote: Please sit down with us with Mr. Borres because this lot of the school still belongs to Mr. Borres and the Division Office denies your right of way, my question is what do you mean when you say that the Division Office denied your right of way? A I meant they cannot bury a pipe depriving the school of the water because the land does not belong to us yet. In other words, the land does not belong to L. Borres Elementary School although it is supposed to be donated by L. Borres Q But when you wrote this letter Mrs. Witness, did you really stop or prohibit Mr. Florete from continuing the use of the canal? A No sir. (TSN, Oct. 17, 1979, pp. 5-6) Mrs. Javellana sent that letter-invitation when she came to know that water pipes were about to be laid underground by plaintiffs in lieu of the open canal. Plaintiff Florete Sr., however, did not come to the conference nor sent any word or representative. Nor did he attend to all other subsequent invitations related to the canal although he knew said invitations or conference conducted by the government offices concerned. As heretofore stated, the main canal had long been in existence even before plaintiff Marcelino Florete Sr. acquired ownership of the fishpond of the Maranons thru which the same passes. This canal served as passage of salt water from Iloilo River to the school fishpond and at the same time, as outlet and drainage canal or channel of rainwater from the school premises and adjacent lands that empties to the Iloilo River. An easement or servitude of water-right of way had thus been constituted on the property of the plaintiffs as the servient estate in favor of the L. Borres Elementary School land and the nearby lands as the dominant estates.

Even on the assumption that it was plaintiff Florete Sr. who constructed the subject canal in 1961, an easement or servitude of water-right-of-way had nonetheless been constituted on subject property because since then the same had been in continuous use for no less than fifteen (15) years by the school fishpond as well as by the adjacent lands. A positive easement (Art 616, New Civil Code) had thereby been created and plaintiffs have no right to terminate it unilaterally without violating Art. 629 of the New Civil Code which provides: Art. 629: The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude. Nevertheless, if by reason of the place originally assigned or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be charged at his expense, provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement. Plaintiffs, however, did not recognize, much less, follow the above-quoted law on easement. They closed the entrance of the canal and demolished portions of the main dike thus impairing the use of the servitude by the dominant estate. And by so doing, plaintiffs violated not only the law on easement but also Presidential Degree No. 296 which enjoins any person, natural or juridical, to demolish structures or improvements which tend to obstruct the flow of water through rivers, creeks, esteros and drainage channels. For this canal did not serve merely to supply salt water to the school fishpond but also serves as drainage charged or channel of rainwater from adjacent lands to the Iloilo River. Before the canal was closed, the residents had not experienced any flood in the area or in the school premises. It was only after the canal was closed by plaintiffs on July 25, 1978, that the residents began to experience flood in the school premises particularly in the month of August every year thereafter when rainy season comes. Rainwater from adjoining areas accumulate at the school premises without any chance of going out. Flood waters remain stagnant for days and became filthy and veritable breeding place of mosquitoes. Plaintiffs claimed that they closed the canal because the residents of the place threw waste matter and garbage into the canal and so the waters therein were dirtied and rendered totally unsanitary for human use, particularly for salt-making. But this claim was belied by defendants' showing that what motivated plaintiffs to close the canal was the fact that the residents engaged in salt-making using plastic bags and thus, somehow, competed with plaintiffs in the production of salt in the area. At any rate, regardless of what motivated plaintiffs into closing the canal, the fact is that plaintiffs act ran roughshod over the aforequoted provisions of law on easement and transgressed Presidential Decree No. 296. On the issue of damages, therefore, the court is of the view and so holds that plaintiffs are liable to the defendants for moral damages, attorney's fees and costs of litigation. It is bad enough that plaintiffs, after closing the canal and thus depriving the school fishpond and residents of the place salt water from the Iloilo River and impeding the flow of rain and flood waters from the school premises and adjacent lands to said river during rainy season, unjustifiably refused and failed to heed defendants' plea for them to reopen said canal. Worse, plaintiffs instituted the present action against the defendants and dragged the latter into a court suit that occasioned upon them worries, serious anxiety, fright and mental anguish. No doubt, the defendants were vexed to the utmost to find themselves faced with a court suit when what they did was only to do what was incumbent upon them to do as public officials committed to serve public interest and welfare. What is more, they were forced to secure the service of a private counsel as they were sued also in their private capacities. It is quite evident that plaintiffs filed the present action in bad faith to preempt whatever appropriate legal action the authorities could take under the circumstances aware, as they were, that no less than the offices of the City Fiscal of Iloilo and the City Barangay Secretariat, after conducting ocular inspection of the place together with other government functionaries tasked with promoting the health, safety and welfare of the people in the area, recommended immediate appropriate action aimed at reopening the canal. The damages that could be adjudged in this case are, however, limited only to the herein defendants. It may be that the school fishpond was damaged and the school PTA suffered actual damages in the form of lost income therefrom. And so with the school children and residents of

the place reason for which defendants pray that they should be compensated. But they are not parties to this case hence, damages could not be awarded to them. (pp. 37-46, Rollo) After a careful reading of the aforementioned findings of the trial court, there is no question that the two subject canals had been in existence long before plaintiff Florete bought his land from the Maranons. Respondent appellate court cannot now disown it after quoting with approval in the body of its decision the findings of the trial court. This brings Us to the determination of the other issue namely: which of the two (2) estates is the dominant or servient estate, an issue which hinges upon the conclusion reached by the trial court that the canals were in existence long before Florete Sr. had acquired that property from the Maranons. It has been established that the main canal which is traversing the property of Florete served as the passage of salt water from the Iloilo River to the school fishpond and at the same time, as an outlet and drainage canal or channel of rainwater from the school premises and adjacent lands that empty into the Iloilo River. Even assuming that it was plaintiff Florete Sr. who constructed the subject canal in 1961, an easement of water-right of way had already been constituted on the property of the plaintiffs as the servient estate in favor of the L. Borres Elementary School premises and the nearby lands as the dominant estates. Private respondents thus violated Art. 629 of the Civil Code when they closed the entrance of the canal and demolished portions of the main dike thus impairing the use of the servitude by the dominant estates. The findings of the trial court are amply supported by a careful and exhaustive consideration of all available documentary and oral evidence including ocular inspections as it was in the best position to do so. Its legal conclusions are likewise unassailable. In view of the well-settled rule that this Court is not a trier of facts, We find no plausible reason not to sustain the trial court in its findings of fact and the legal conclusions drawn from these findings. WHEREFORE, premises considered, the assailed decision of the respondent appellate court is hereby REVERSED and SET ASIDE, and the judgment of the Regional Trial Court in Civil Case No. 12791 is hereby REINSTATED. SO ORDERED. G.R. No. L-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. Parades for private respondents. PADILLA, J.: This is a petition for review on certiorari of the Order issued by the respondent judge, Hon. Juanita 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. 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 enroaching 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. Hence, the present recourse by petitioner Tanedo. 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 Tanedo cannot redeem the entire Lot 7501-B from the spouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622 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, areawise, 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 enroaches 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 plaintiffs apartment is standing on, the same should be sold to
11

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, 1982 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 reimbursentent 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 Tafiedo 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 7501B, 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 conditions, 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 Tafiedo. 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. SO ORDERED. G.R. No. 116417 October 18, 2000 ALBERTO MAGLASANG, JR., petitioner, vs. HON. MERCEDES GOZO DADOLE, Presiding Judge, Regional Trial Court, Cebu, Branch 28, Mandaue City, and CONSUELO Q. PABROA, respondents. DECISION PARDO, J.: The case under consideration is a special civil action for certiorari assailing the order of the Regional Trial Court, Cebu, Branch 28, Mandaue City1 approving the commissioner's report and ordering the demolition of a structure constructed by Alberto Maglasang, Jr., for obstructing the road right of way. On July 15, 1988, Alberto Maglasang, Jr. filed with the Regional Trial Court, Cebu, Mandaue City a petition for the cancellation of the inscription of a permanent lien of a right of way on Transfer Certificate of Title No. T-62901 of the Office of the Register of Deeds of the Province of Cebu in the name of the petitioner, covering a parcel of land situated in Consolacion, Cebu.2 On September 28, 1988, Consuelo Q. Pabroa filed an opposition, alleging that she owned one of the lots adjoining petitioner's land and that the permanent lien of a right of way should not be cancelled because the road on which a portion of petitioner's property extends is used by the adjoining landowners as the only outlet to the national highway. 3 After conducting several hearings, the trial court noted that the only access to the national highway was through the road right of way located on the property of petitioner Alberto Maglasang, Jr. and spouses Jose M. Quiapo and Sinforosa Flores. Thus, on October 2, 1989, the trial court denied the petition for cancellation of lien. 4 Upon appeal, the Court of Appeals affirmed the decision of the trial court. 5 Not satisfied, Alberto Maglasang, Jr. filed a petition for review with this Court.6 On August 26, 1991, the Court denied the petition. 7 On October 4, 1991, petitioner filed a motion for reconsideration.8 However, on October 21, 1991, the Court denied the motion for reconsideration. 9 On November 13, 1991, the decision became final.10 On February 12, 1993, Consuelo Q. Pabroa filed with the trial court a motion for execution. On March 2, 1993, she filed another motion for execution with prayer for immediate demolition of illegal structures.11 Respondent Pabroa alleged that while awaiting the enforcement of the writ of execution of the order dated October 2, 1989, petitioner Maglasang built a concrete hollow block fence obstructing the two-meter permanent right of way. The trial court did not rule on the motion for execution, but instead, ordered the appointment of a commissioner to conduct an ocular inspection of the land in question. By agreement of the parties, the trial court appointed its clerk of court, Atty.

Bonifacio Go Virtudes, to perform the task. Subsequently, Atty. Virtudes submitted a commissioner's report dated March 18, 1993.12 However, petitioner interposed numerous objections to the report. Consequently, on April 14, 1993, the trial court ordered the appointment of a geodetic engineer to conduct a relocation survey of the land, subject of a right of way in accordance with the order of the trial court dated October 2, 1989. 13 On November 23, 1993, geodetic engineer Cesar V. Tecson submitted a commissioner's report. 14 On December 6, 1993, petitioner filed an opposition to the report.15 On January 7, 1994, the trial court ordered geodetic engineer Tecson to conduct another relocation survey of the land. On January 24, 1994, Engineer Tecson submitted his report, adopting the findings of the first survey.16 Consequently, on February 4, 1994, petitioner filed a reiteration of his opposition, alleging that the surveyor was biased and that an approval of the commissioner's report would be tantamount to amending the substance of the original order which had long become final and irreversible. 17 On July 22, 1994, the trial court issued the questioned order, approving the commissioner's report. The order stated: "Finally, since per findings of the commissioner as contained in his reports dated November 23, 1993 and January 24, 1994, a structure has been constructed by the petitioner which has in a way obstructed the subject road right of way, the same must have (sic) to be demolished in order that the road right of way be established completely. "WHEREFORE, foregoing premises considered, Order is hereby issued: "1) Approving the commissioner's report dated November 23, 1993 and the reiteration on the commissioner's report dated January 24, 1994; "2) Ordering the petitioner to reimburse oppositor's share in the commissioner's fee in the amount of P1,750.00 per court's order dated April 14, 1992; and, "3) Ordering the petitioner to demolish the structure which he has constructed on the road right of way within ten (10) days from receipt of this order; otherwise, after the lapse of ten (10) days without him complying with this order, the said structure will be demolished by the Sheriff of this court at petitioner's expense. "SO ORDERED. "Given in chamber this 22nd day of July, 1994, in the City of Mandaue, Philippines. "(sgd.)MERCEDES GOZO DADOLE "Judge"18 Hence, this petition, alleging that the trial court committed a grave abuse of discretion when it issued the order dated July 22, 1994, because it modified a previous final order dated October 2, 1989.19 On August 12, 1994, the Court required respondents to file a comment and enjoined the trial court from enforcing the order dated July 22, 1994, in LRC Rec. No. 9462.20 On August 22, 1994, private respondent filed her comment, maintaining that petitioner constructed a portion of his apartment house and concrete hollow block fence on the road which obstructed the right of way. Thus, the illegal structures must be demolished. Private respondent further prayed that the temporary restraining order against the enforcement of the writ of execution be lifted. 21 On September 19, 1994, the Court resolved to consolidate the present action with G. R. No. 101032, where this Court affirmed the decision of the lower courts in denying the petition for cancellation of lien of a right of way.22 We find that the trial court did not gravely abuse its discretion in issuing the order dated July 22, 1994.

An act of a court or tribunal may be considered to have been done in grave abuse of discretion when the same was performed in a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.23 It is undisputed that an easement of a right of way had been constituted in a prior proceeding. The trial court order dated October 2, 1989, established the need for a right of way to be maintained on petitioner's property. However, in order to maintain the lien of a right of way, the trial court considered the possibility that structures may be built to obstruct the right of way. It was necessary to conduct an ocular inspection to determine if such right of way had been rendered ineffective by petitioner's acts. The trial court went through great lengths appointing commissioners to conduct surveys of the land to determine whether petitioner encroached on the subject right of way. As a result of the ocular inspections made on the property, it was revealed that a portion of petitioner's property obstructed the right of way. Thus, the challenged order did not modify the previous order, but actually implemented the order of the trial court dated October 2, 1989. The order for demolition was, therefore, incidental to the execution of the order dated October 2, 1989. WHEREFORE, the Court DISMISSES the petition, for lack of merit.1wphi1 The Court sets aside the resolution dated August 15, 1994 enjoining the trial court from enforcing the order dated July 22, 1994, in LRC Rec. No. 9462. No costs. SO ORDERED. G.R. No. 105294 February 26, 1997 PACITA DAVID-CHAN, petitioner, vs. COURT OF APPEALS and PHIL. RABBIT BUS LINES, INC., respondents. PANGANIBAN, J.: In pleading for an easement of right of way, petitioner correctly cites the requirements of law but fails to provide factual support to show her entitlement thereto. Since findings of facts by the Court of Appeals affirming those of the trial court are binding on the Supreme Court, the petition must thus fail. Even petitioner's plea for equity becomes unavailing because resort to equity is possible only in the absence, and never in contravention, of statutory law. The petition assails the Decision 1 of respondent Court 2 promulgated on April 30, 1992. The Decision of respondent Court affirmed the decision dated July 26, 1989, of the Regional Trial Court of San Fernando, Pampanga, Branch 44, in Civil Case No. 8049. The dispositive portion of the affirmed decision of the trial court reads: 3 IN VIEW OF THE FOREGOING CONSIDERATIONS, and finding plaintiff's petition to be without merit, the same is, as it is hereby ordered dismissed with costs against plaintiff. On defendant's (Singian) counterclaim, the same is, as it is hereby dismissed for insufficiency of evidence. The Facts On September 29, 1987, petitioner filed with the trial court an amended petition with prayer for preliminary prohibitory injunction, seeking to stop private respondent from fencing its property and depriving her of access to the highway. Petitioner alleged that her property, consisting of around 635 square meters, situated in Del Pilar, San Fernando, Pampanga and covered by TCT No. 57596-R, was delineated on its northern and western sides by various business establishments. Adjoining her property along its southern boundary was the land of the Pineda family, while along the eastnortheastern boundary, and lying between her property and the MacArthur Highway, was another lot with an area of approximately 161 square meters owned by private respondent. In short, petitioner's lot was almost completely surrounded by other immovables and cut off from the highway. Her only access to the highway was a very small opening measuring

two feet four inches wide through the aforementioned property of private respondent. Petitioner believed she was entitled to a wider compulsory easement of right of way through the said property of private respondent. The prospective subservient estate was a portion of a bigger lot consisting of 7,239 square meters and covered by TCT No. 163033-R, which was formerly owned by the Singian Brothers Corporation hereinafter referred to as ("Singian Brothers") and was sold to private respondent without the knowledge and consent of petitioner, who was thereby allegedly prevented from exercising her right of pre-emption or right of redemption. Petitioner alleged that private respondent was about to complete the construction of its concrete fence on the said lot which would result in depriving petitioner of the only available right of way, and that therefore, she was constrained to petition the trial court to enjoin private respondent from fencing said lot. The petition likewise prayed that judgment be rendered ordering private respondent to sell to petitioner the subject lot and to pay the damages, attorney's fees and cost of suit. Private respondent denied the allegations of petitioner. The parents and relatives of petitioner were never tenants or lessees of the former owner, Singian Brothers; rather, they were found to be illegally occupying the property as ruled by the MTC-San Fernando, Pampanga, Branch 1, in Civil Case No. 4865. The dispositive portion the judgment of ejectment reads: 4 WHEREFORE, defendants Eduardo Mangune, Pacita David-Chan and Primo David including their agents/representatives and, any and all persons given access by them to the disputed premises claiming any right under them, are hereby ordered to immediately vacate the area in question, remove all the improvements that they have constructed thereon; to pay the plaintiff corporation jointly and severally the sum of P2,000.00 pesos as Attorney's fees and the costs of this suit. The case against defendants Loida Makabali and Helen Hermidia is hereby dismissed as the action has become moot. The defendants' counterclaim, Pacita David-Chan and Eduardo Mangune is hereby dismissed for lack of merit. Hence the former owners were not obliged to inform petitioner of the sale. The land sold by the Singian Brothers was free from all liens and encumbrances as stated in the Deed of Absolute Sale. Private respondent was not selling the 161 square-meter lot because it needed the property. Also, petitioner had another access to the highway without passing through the lot in question. The Singian Brothers were impleaded in the trial court. In their answer, they alleged that they did not authorize anyone to receive rentals for the disputed lot. As their affirmative and special defenses, Defendant Singian Brothers averred that the complaint of petitioner stated no cause of action because, being apparent and discontinuous, the right of way cannot be acquired by prescription. Petitioner was not a tenant of the Singian Brothers; therefore she was not entitled to a right of pre-emption or right of redemption. Finally, petitioner had another access to the National Highway which, however, she closed during the pendency of the case at the trial court when she extended the construction of her fence. 5 The Issues Failing to obtain relief at both the trial and respondent courts, petitioner now submits the following issues for consideration of this Court: I. In its reaffirmation of the lower court's decision, the Court of Appeals missed to temper with human compassion of the Art. 649 and 650 of the New Civil Code of the Phil. which requires the presence of four requisites for a compulsory easement of way. 6 II. (The) Court (of Appeals) had used in its decision all technical and legal niceties to favor respondents, violating time-honored and deeply-rooted Filipino values. 7 III. With due respect, the Court (of Appeals) erred in deciding this case in favor of the respondent despite the facts existing at the background. 8 IV. The Court (of Appeals) erred in stating that petitioner had an outlet measuring two (2) feet and four (4) inches to the national highway without passing through respondent's property as per the commissioner's report. 9 In her Memorandum 10 dated February 26, 1993, petitioner alleges only one issue:

Whether or not petitioner is entitled to a legal easement of right of way over that portion of the property of respondent Rabbit? On the other hand, private respondent raises two issues: 11 1. Is the petitioner entitled to an easement of right of way from the private respondents? 2. Should she be granted her desire for a right of way by way of "pakikisama" and "pakikipagkapwa-tao"? After deliberating on the various submissions of the parties, the Court holds that the issues can be condensed into two, as follows: (1) Is petitioner legally entitled to a right of way through private respondent's property? (2) In any event, is she entitled to such easement through the recognition and application of the Filipino values of pakikisama and pakikipagkapwa-tao? The Court's Ruling The petition is devoid of merit.

Supreme Court in the case of Francisco vs. Intermediate Appellate Court, 177 SCRA 52,.534535: "The evidence is, therefore, persuasively to the effect that the private respondent had been granted an adequate access to the public highway (Parada Road) through the adjacent estate of Epifania Dila even as he was trying to negotiate a satisfactory agreement with petitioner Francisco for another passageway through the latters' property. If at the time he filed suit against the petitioner, such access (through the property of Epifania Dila) could no longer be used, it was because he himself had closed it off by erecting a stone wall on his lot at the point where the passageway began for no reason to which the record can attest except to demonstrate the isolation of his property alleged in his complaint. But the law makes it amply clear that an owner cannot. as respondent has done. by his own act isolate his property from a public highway and then claim an easement of way through an adjacent estate. The third of the cited requisites; that the claimant of a right of way has not himself procured the isolation of his property had not been metindeed the respondent had actually brought about the contrary condition and thereby vitiated his claim to such an easement. It will not do to assert that use of the passageway through Lot 860-B was difficult or inconvenient, the evidence being to the contrary and that it was wide enough to be traversable by even a truck, and also because it has been held that mere inconvenience attending the use of an existing right of way does not justify a claim for a similar easement in an alternative location." (Emphasis ours) The Court of Appeals also ruled that petitioner failed to prove she made a valid tender of the proper indemnity, to wit: 16

First Issue: Requisites of an Easement of Right of Way Citing Articles 649 and 650 of the Civil Code, 12 petitioner submits that "the owner of an estate may claim a compulsory right of way only after he (or she) has established the existence of four requisites, namely: (1) the estate is surrounded by other immovables and is without adequate out-let to a public highway; (2) proper indemnity is paid; (3) the isolation is 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 and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. 13 While petitioner may be correct in her theoretical reading of Articles 649 and 650, she nevertheless failed to show sufficient factual evidence to satisfy their requirements. Evaluating her evidence, respondent Court ruled that petitioner is not "without adequate outlet to a public highway" as follows: 14 1. Let it be stressed that it was plaintiff who built a concrete fence on the southern boundary of her property to separate it from the property of the Pineda family. Worse, during the pendency of the case, she closed the 28-inch clearance which she could use as a means to reach the National Highway without passing through the property of defendant. If plaintiff wants a bigger opening, then she can always destroy a portion of the concrete fence which she erected and pass through the property of the Pineda family which, as shown on the attached sketch on the Commissioner's Report, has an open space on the southern boundary of plaintiff's land. 2. Plaintiff maintains that once the Pineda family (fences) off their lot, plaintiff has no more way to the National Highway. Plaintiff's apprehensions are without basis. The Pineda family could no longer fence off their property because plaintiff (had) already constructed a fence to separate the two properties. And even granting that the Pineda family would eventually fence off their land, then plaintiff could ask for an easement of right of way from the Pineda family. The appellate court likewise found that petitioner failed to satisfy the third requirement because she caused her own isolation by closing her access through the Pineda property, thus: 15 1. Worthy of note is the fact that it was plaintiff who built a fence to separate her property from that of the Pineda family on the southern boundary. And she even closed the small opening causing her property to be isolated and losing one access to the National Highway. Plaintiff thus failed to meet the third requisite for the grant of an easement of right of way. As held by the Hon. 2. The second requisite that there was payment of the proper indemnity was likewise not met by the plaintiff. Plaintiffs complaint contained no averment that demand for the easement of right of way had been made after payment of the proper indemnity. There was no showing that plaintiff ever made a tender of payment of the proper indemnity for the right of way. As the lower court said, "The fact that plaintiff prays that defendant Rabbit be ordered to sell to her the disputed premises hardly satisfies the requisite regarding the payment of the proper indemnity." The questions of whether (1) petitioner has another adequate outlet to the public highway, or (2) she caused her own isolation, or (3) she made, in fact, a tender of the proper indemnity are all issues of facts which this Court has no authority to rule upon. 17 The Supreme Court is not a trier of facts. 18 It is doctrinal that findings of facts of the Court of Appeals upholding those of the trial court are binding upon this Court. 19 While there are exceptions to this rule, 20 petitioner has not convinced us that this case falls under one of them. Second Issue: Application of Traditional Filipino Values Perhaps sensing the inadequacy of her legal arguments, petitioner who claims to be an "ordinary housewife (with) . . . meager resources" pleads that "those who have less in life should have more in law" and that the Court should apply the Filipino values of pakikisama and pakikipag-kapwa-tao in resolving the case. Such appeal of petitioner is based on equity which has been aptly described as "justice outside legality." However, equity is applied only in the absence of, and never against, statutory law or judicial rules of procedure. 21 As found by respondent Court, petitioner is not legally entitled to a right of way on the property of private respondent. Thus, such equitable arguments cannot prevail over the legal findings. There are rigorous standards to be complied with by owners of the dominant estate before they may be granted with easement of right of way. These standards must be strictly complied with because easement is a burden on the property of another. Before such inconvenience may be imposed by the Court, applicants must prove that they deserve judicial intervention on the basis of law, and certainly not when their isolation is caused by their own acts. In the latter case, they decide their detachment and must bear the consequences of such choice. WHEREFORE, in view of the foregoing, the Petition is DENIED and the Decision dated April 30, 1992, of the respondent Court is AFFIRMED. Costs against petitioner.

SO ORDERED. G.R. No. 127549 January 28, 1998 SPOUSES CESAR and RAQUEL STA. MARIA and FLORCERFIDA STA. MARIA, petitioners, vs. COURT OF APPEALS, and SPOUSES ARSENIO and ROSLYNN FAJARDO, respondents. DAVIDE, JR., J.: This is an appeal under Rule 45 of the Rules of Court from the decision 1 of 18 December 1996 of the Court of Appeals in CA-G.R. CV No. 48473, which affirmed with modification the 30 June 1994 Decision 2 of Branch 19 of the Regional Trial Court of Bulacan in Civil Case No. 77-M-92 granting the private respondents a right of way through the property of the petitioners. The antecedent facts, as summarized by the Court of Appeals, are as follows: Plaintiff spouses Arsenio and Roslynn Fajardo are the registered owners of a piece of land, Lot No. 124 of the Obando Cadastre, containing an area of 1,043 square meters, located at Paco, Obando, Bulacan, and covered by Transfer Certificate Title (TCD No. T-147729 (M) of the Registry of Deeds of Meycauayan, Bulacan (Exhibit "B", p. 153 Orig. Rec.). They acquired said lot under a Deed of Absolute Sale dated February 6, 1992 executed by the vendors Pedro M. Sanchez, et al. (Annex "A", Complaint; pp. 7-8 ibid.). Plaintiff's aforesaid Lot 124 is surrounded by Lot 1 (Psd 45412), a fishpond (Exh. "C-5"; p. 154, ibid.), on the northeast portion thereof; by Lot 126, owned by Florentino Cruz, on the southeast portion; by Lot 6-a and a portion of Lot 6-b (both Psd-297786) owned respectively by Spouses Cesar and Raquel Sta. Maria and Florcerfida Sta. Maria (Exhs. "C-2" and "C-3", ibid.), on the southwest; and by Lot 122, owned by the Jacinto family, on the northwest. On February 17, 1992, plaintiff spouses Fajardo filed a complaint against defendants Cesar and Raquel Sta. Maria or Florcerfida Sta. Maria for the establishment of an easement of right of way. Plaintiffs alleged that their lot, Lot 124, is surrounded by properties belonging to other persons, including those of the defendants; that since plaintiffs have no adequate outlet to the provincial road, an easement of a right of way passing through either of the alternative defendants' properties which are directly abutting the provincial road would be plaintiffs' only convenient, direct and shortest access to and from the provincial road; that plaintiffs' predecessors-in-interest have been passing through the properties of defendants in going to and from their lot; that defendants' mother even promised plaintiffs' predecessors-in-interest to grant the latter an easement of right of way as she acknowledged the absence of an access from their property to the road; and that alternative defendants, despite plaintiffs' request for a right of way and referral of the dispute to the barangay officials, refused to grant them an easement. Thus, plaintiffs prayed that an easement of right of way on the lots of defendants be established in their favor. They also prayed for damages, attorney's fees and costs of suit. Defendants, instead of filing an answer, filed a motion to dismiss (pp. 41-45, ibid.) on the ground that the lower court has no jurisdiction to hear the case since plaintiffs failed to refer the matter to the barangay lupon in accordance with Presidential Decree No. 1508. The lower court, however, in its Order dated May 18, 1992, denied said motion on the premise that there was substantial compliance with the law. On May 25, 1992, defendants filed a "Notice of Appeal" to the Supreme Court of the questioned order of the lower court denying their motion to dismiss, under Rule 45 of the Rules of Court (p. 54, ibid.). On June 24, 1992, the lower court denied the notice of appeal for lack of merit (p. 86, ibid). In the meantime, defendants filed a petition for review on certiorari of the lower court's Order dated May 18, 1992 (pp. 64-84, ibid.). In an Order dated July 8, 1992, the Third Division of the Supreme Court denied said petition for failure to comply with Revised Circular Nos. 1-88 and Circular No. 28-01 (p. 97, ibid.). Defendants' motion for reconsideration was likewise denied with finality on July 20, 1992 (p. 96, ibid.).

Consequently, defendants filed their answer to the court below where they alleged that the granting of an easement in favor of plaintiffs would cause them great damage and inconvenience; and that there is another access route from plaintiffs' lot to the main road through the property of Florentino Cruz which was likewise abutting the provincial road and was being offered for sale. By way of counterclaim, defendants prayed for damages and attorney's fees. The parties not having settled their dispute during the pre-trial (p.120, Orig. Record), the court directed that an ocular inspection be conducted of the subject property, designating the branch clerk of court as its commissioner. In time, an Ocular Inspection Report dated December 3, 1992 (Exhs. "J" and "J- 1") was submitted. After trial on the merits, the lower court rendered the assailed decision granting plaintiffs' prayer for an easement of right of way on defendants' properties. 3 The trial court found that based on the Ocular Inspection Report there was no other way through which the private respondents could establish a right of way in order to reach the provincial road except by traversing directly the property of the petitioners. It further found that (a) no significant structure, save for a wall or fence about three feet high, would be adversely affected; (b) there was sufficient vacant space of approximately 11 meters between petitioners' houses; and (c) petitioners' property could provide the shortest route from the provincial road to the private respondents' property. Consequently, the trial court granted the easement prayed for by the private respondents in a decision dated 30 June 1994, 4 whose decretal portion reads as follows: WHEREFORE, premises considered the Court orders that a right-of-way be constructed on the defendants' property covered by TCT No. 0-6244 of about 75 sq. meters, 25 sq. meters shall be taken from the lot of Florcerfida Sta. Maria and 50 sq. meters from the property of Cesar Sta. Maria to be established along lines 1-2 of lot 6-c and along lines 3-4 of lot 6-b and to indemnify the owners thereof in the total amount of P3,750.00 (P1,250.00 goes to Florcerfida Sta. Maria and P2,500.00 to Cesar Sta. Maria) and to reconstruct the fence to be destroyed in the manner it was at the time of the filing of this action. The petitioners seasonably appealed from the aforementioned decision to the Court of Appeals, which docketed the case as CA-G.R. CV No. 48473. The Court of Appeals agreed with the trial court that the private respondents had sufficiently established the existence of the four requisites for compulsory easement of right of way on petitioners' property, to wit: (1) private respondents' property was, as revealed by the Ocular inspection Report, surrounded by other immovables owned by different individuals and was without an adequate outlet to a public highway; (2) the isolation of private respondents' property was not due to their own acts, as it was already surrounded by other immovables when they purchased it; (3) petitioners' property would provide the shortest way from private respondents' property to the provincial road, and this way would cause the least prejudice because no significant structure would be injured thereby; and (4) the private respondents were willing to pay the corresponding damages provided for by law if the right of way would be granted. Accordingly, in its decision 5 of 18 December 1996, the Court of Appeals affirmed the trial court's decision, but modified the property valuation by increasing it from P50 to P2,000 per square meter. The petitioners forthwith filed this petition for review on certiorari based on the following assignment of errors: I. WHETHER OR NOT A COMPULSORY EASEMENT OF RIGHT OF WAY CAN BE ESTABLISHED IN THE LIGHT OF THE DOCTRINE LAID DOWN BY THE HON. SUPREME COURT IN COSTABELLA CORPORATION VS. COURT OF APPEALS, 193 SCRA 333, 341 WHICH HELD THAT [FOR] THE FAILURE OF PRIVATE RESPONDENTS TO SHOW THAT THE ISOLATION OF THEIR PROPERTY WAS NOT DUE TO THEIR PERSONAL OR THEIR PREDECESSORS-IN-INTEREST'S OWN ACTS, THEY ARE NOT ENTITLED TO A COMPULSORY EASEMENT OF RIGHT OF WAY. II. WHETHER OR NOT A COMPULSORY RIGHT OF WAY CAN BE GRANTED TO PRIVATE RESPONDENTS WHO HAVE TWO OTHER EXISTING PASSAGE WAYS OTHER THAN THAT OF PETITIONERS AND AN ALTERNATIVE VACANT LOT FRONTING THE PROVINCIAL ROAD

ALSO ADJACENT TO PRIVATE RESPONDENTS' PROPERTY, WHICH CAN BE USED IN GOING TO AND FROM PRIVATE RESPONDENTS' PROPERTY. III. RESPONDENT HON. COURT OF APPEALS GRAVELY ERRED IN MAKING A PORTION OF ITS STATEMENT OF FACTS FROM ALLEGATIONS IN THE COMPLAINT AND NOT FROM THE EVIDENCE ON RECORD. IV. RESPONDENT HON. COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT PRIVATE RESPONDENTS HAVE NO ADEQUATE OUTLET TO A PUBLIC HIGHWAY WHICH INFERENCE DRAWN FROM FACTS WAS MANIFESTLY MISTAKEN. 6 The first, second, and fourth assigned errors involve questions of fact. Settled is the rule that the jurisdiction of this Court in cases brought before it from the Court of Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law. Findings of fact of the latter are conclusive, except in the following instances: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record. 7 A perusal of the pleadings and the assailed decision of the Court of Appeals, as well as of the decision of the trial court, yields no ground for the application of any of the foregoing exceptions. All told, the findings of fact of both courts satisfied the following requirements for an estate to be entitled to a compulsory servitude of right of way under the Civil Code, to wit: 1. the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1); 2. there is payment of proper indemnity (Art. 649, par. 1); 3. the isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.); and 4. 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). 8 As to such requisites, the Court of Appeals made the following disquisitions: Anent the first requisite, there is no dispute that the plaintiffs-appellees' property is surrounded by other immovables owned by different individuals. The ocular inspection report submitted to the lower court reveals that: The property of the plaintiffs, spouses Arsenio and Roslynn Fajardo, is completely surrounded with adobe fence without any point of egress and ingress to the national road. Said plaintiffs' property containing an area of 1,043 square meters and covered by OCT No. O-6244 of the Registry of Deeds of Bulacan was situated directly behind defendants' property which abuts the national road. Defendants, spouses Cesar and Racquel Sta. Maria, are the absolute owners of the parcel of land with an area of 537 square meters and embraced under TCT No. T-37.762(M) situated on the left side abutting the national road with their house thereon made of wood and hollow blocks, while defendant Florcerfida Sta. Maria is the absolute owner of a parcel of land with a similar area of 537 square meters and covered by TCT No. T-37.762(M) situated on the right side and likewise abutting the national road with an impressive house thereon of modern vintage made of strong materials. As depicted in the rough

sketch hereto attached, plaintiffs have absolutely no means of ingress and egress to their property as the same is completely isolated by properties owned by other persons. On the left side is the property of Florentino Cruz, on the right side is the property reportedly owned by the Jacintos; and on the front portion are properties owned by defendants. . . .. (Ocular Inspection Report, p. 135, Orig. Rec.) Plaintiffs-appellees' property is likewise without adequate outlet to a public highway. The existing passage way for people ("daang tao") at the back of plaintiffs-appellees property leading to the provincial road (TSN, May 17, 1993, p. 12) cannot be considered an adequate outlet for purposes of establishing an easement. Article 651 of the 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." Thus in the case of Larracas vs. Del Rio (37 Official Gazette 287), this Court had occasion to rule that "it is not necessary for a person, like his neighbors, to content himself with a footpath and deny himself the use of an automobile. So in an age when motor cars are a vital necessity, the dominant proprietor has a right to demand a driveway for his automobile, and not a mere lane or pathway" (Cited in Tolentino, ibid., p. 391). The second requisite for the establishment of an easement of right way, i.e., payment of indemnity, is likewise present in this case. Plaintiff-appellee spouse Roslynn Fajardo testified on direct examination that they are willing to pay the corresponding damages provided for by law if granted the right of way (TSN, November 5, 1992, p. 11). The third requisite is that the isolation of plaintiffs-appellees' property should not have been due to their own acts. In the case under consideration, the isolation of their lot is not due to plaintiffs' acts. The property they purchased was already surrounded by other immovables leaving them no adequate ingress or egress to a public highway. Going now to the fourth requisite of "least prejudice" and "shortest distance," We agree with the lower court that this twin elements have been complied with in establishing the easement of right of way on defendants-appellants' properties. It has been commented upon that where there are several tenements surrounding the dominant estate, and the easement may be established on any of them, the one where the way is shortest and will cause the least damage should be chosen. But if these two 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. And if the conditions of the various tenements are the same, all the adjoining owners should be cited and experts utilized to determine where the easement shall be established (Tolentino, ibid., pp. 108-109, citing Casals Colldecarrera). In the case at bar, the ocular inspection disclosed that there are three options open to the plaintiffs-appellees as a route to reach the national road, to wit: (1) To traverse directly through defendants' property which is the shortest route of approximately 20 to 25 meters away from the national road; (2) To purchase a right of way from the adjoining property of Florentino Cruz on the left side of their property; and (3) To negotiate with Jacinto family on the right side of their property. In all instances, no significant structures would be adversely affected. There is sufficient vacant space between defendants' houses of approximately 11 meters. The distance of defendant Florcerfida's house with the adjoining adobe wall separating that of the property of defendants Cesar and Racquel Sta. Maria is about 4 meters, while the

space between the adobe wall and that of the latter's house is about 7 meters or a total of 11 meters vacant space for purposes of a right of way. On the other hand, plaintiffs may negotiate with a right of way with Florentino Cruz on the left side of their property although the same is quite circuitous. Lastly, the option through the property of the Jacinto on the right side is very circuitous and longer. The route involves a total of about 50 yards as it has to go straight to the right of about 35 yards and turn left of about another 15 yards before reaching the common right of way. (Ocular Inspection report, pp. 135-136, ibid.) Among the three (3) possible servient estates, it is clear that defendants-appellants' property would afford the shortest distance from plaintiffs-appellees' property to the provincial road. Moreover, it is the least prejudicial since as found by the lower court, "(i)t appears that there would be no significant structures to be injured in the defendants' property and the right-of-way to be constructed thereon would be the shortest of all the alternative routes pointed to by the defendants" (p. 4, RTC, Decision; p. 223, ibid.). Petitioners' reliance on Costabella Corporation v. Court of Appeals 9 to support their first assigned error is misplaced. In said case we reversed the decision of the Court of Appeals granting a compulsory easement of a right of way to the private respondents therein because of the absence of any showing that the "private respondents had established the existence of the four requisites mandated by law." As to the third requisite, we explicitly pointed out; thus: "Neither have the private respondents been able to show that the isolation of their property was not due to their personal or their predecessors-ininterest's own acts." In the instant case, the Court of Appeals have found the existence of the requisites. The petitioners, however, insist that private respondents' predecessors-in-interest have, through their own acts of constructing concrete fences at the back and on the right side of the property, isolated their property from the public highway. The contention does not impress because even without the fences private respondents' property remains landlocked by neighboring estates belonging to different owners. Under the second and fourth assigned errors, the petitioners try to convince us that there are two other existing passage ways over the property of Cruz and over that of Jacinto, as well as a "daang tao," for private respondents' use. Our examination of the records yields otherwise. Said lots of Cruz and Jacinto do not have existing passage ways for the private respondents to use. Moreover, the Ocular Inspection Report 10 reveals that the suggested alternative ways through Cruz's or Jacinto's properties are longer and "circuitous" than that through petitioners' property. This is also clear from the Sketch Plan 11 submitted by the private respondents wherein it is readily seen that the lots of Cruz and Jacinto are only adjacent to that of private respondents unlike that of petitioners which is directly in front of private respondents' property in relation to the public highway. Under Article 650 of the Civil Code, 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. Where there are several tenements surrounding the dominant estate, and the easement may be established on any of them, the one where the way is shortest and will cause the least damage should be chosen. 12 The conditions of "least damage" and "shortest distance" are both established in one tenement petitioners' property. As to the "daang tao" at the back of private respondents' property, it must be stressed that under Article 651 the width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time. Therefore, the needs of the dominant estate determine the width of the easement. 13 The needs of private respondents' property could hardly be served by this "daang tao" located at the back and which is bordered by a fishpond. 14 The third assigned error is without basis and is nothing but a misreading of the challenged decision. The Court of Appeals did not declare as established facts the allegations of the complaint referred to by the petitioner. It merely made a brief summary of what were alleged in the complaint as part of its narration of the antecedents of the case on appeal. WHEREFORE, the instant petition for review is DENIED and the challenged decision of the Court of Appeals is AFFIRMED in toto. Costs against petitioners. SO ORDERED.

Javellana vs IAC April 17, 1989 Paras, J. Roddel Paranos SUMMARY: Respondents in this case filed a case for damages against officials of the L Borres Elem School and city officials for allegedly denying their access to the canal. The canal was being used for the flow of salt water from the river to the school premises, and also as a drainage for rainwater during flood season. It was established by the RTC that the canals have been long existing even before Florete bought the property, and that his act of closing the dikes impaired the use of the dominant estates. The SC ruled that there was an easement or servitude of water-right of way constituted on the property of respondents as the servient estate in favor of L Borres Elem School and nearby lands as dominant estates. DOCTRINE: The main canal was established as a passage of salt water and also an outlet and drainage canal. Even assuming that it was Florete who constructed said canal, an easement of water-right of way had already been constituted on the property of the respondents as the servient estate in favor of the L. Borres Elementary School premises and the nearby lands as the dominant estates. Respondents thus violated Art 629 of NCC when they closed the entrance of the canal and demolished portions of the main dike, thus impairing the use of the servitude by the dominant estates.

PETITIONER: Javellana et al RESPONDENTS: IAC, Florete FACTS: This case arose from complaint for recovery of damages filed by Marsal & Co Inc, and Florete against defendant petitioners for denying plaintiffs access to, and use of a canal leading to plaintiffs property and to enjoin the City Mayor and City Engr of Iloilo from demolishing the structures serving as dike entrance gate to the canal. Stipulation of facts: Marsal & Co is the owner of land adjoining the Iloilo river up to L Borres Elem School; in 1961 Florete was still the owner of the Marsal property, and that there existed a main canal from the river cutting across the property towards the school and through its premises; sometime in 1978, respondents closed the dike entrance of the main canal to the canal running across the school premises; that respondents demolished the dike connecting the main canal in the respondents property ISSUES and RATIO: (note, all the issues here were tackled by the RTC, and reversed by CA, except the impt issue which was discussed by SC) WON the main canal and the canal traversing the school premises existed only in 1961 or time immemorial?- before 1961 The 2 canals have been in existence long before Florete bought his land from the Maranons (orig owners). This was proven by testimonies from several witnesses. Severo Maranon, public school teacher and one of the children of the co-owner of the land purchased by Florete, said that as early as 1948, he already knew of the canal. He remembers it because he nearly drowned in said canal when he was a young boy. Ignacio Gencianeo, a former employee of Bureau of Public Hways, testified that when he was still single, he used to take a Bath in said canal, and that he recalls an incident where a woman (Toribia Tajaon), while picking shells at the sides, fell into the canal and nearly drowned. He also said that in 1940, the school was constructed on the land of Lucas Borres. Francisco Regacho, also testified that in 1948, his house was located near said canal. He also testified that the school fishpond draws its supply of salt water from the canal coming from the Iloilo river. He also testified that Florete merely dug the canal deeper when he got the land. Antonio Sison testified that he took notice of the canal as early as 1933. He also said that Florete was not the one who constructed the canal. This led to the finding of the lower courts that Florete merely dug the canal deeper, but it definitely existed before he bought the property. There was also a finding that his letter which requested to build a canal within the premises of the school up to his lot, and not from the river, proves that the canal was already in existence. A blueprint copy of the cadastral map was presented but this was rendered without probative value, since it was testified to that creeks and esteros are delineated in the cadastral map only if they are 5 or more meters wide, or if less than 5 meters wide, there is continuous flow of water. It was established that the canal is only about 3 meters wide and narrowed to 2 meters, and that during ordinary days, no water flows in the canal. This is why the canal was not in the blueprint. WON the closing of the dike entrance connecting the main canal with the canal running through the school premises caused the flooding of the school-yes This is so because during the rainy season, the canal also serves as an outlet of rain or flood waters that empties to the river. Although there was an attempt to disprove this by saying that water recedes immediately to the Borres property, it is shown that it is higher in elevation, hence the water cannot flow towards that area. Ocular inspections were also done and the officials who conducted these saw for themselves the flooded situation of the place caused by the closure by respondents. WON petitioners acted in private or official capacities- official capacity It has been established that the school fishpond gets its supply of salt water directly from the Iloilo river passing through the canal. The residents also produce salt through the use of plastic sheets by water drawn from the canal. The closure of the canal deprived the fishpond and the residents of the salt-water. The petitioners only did what was incumbent upon them as school and bgy officials when they complained to higher authorities. There was no showing that they had personal interests when they complained. The court noted that respondents had no justifiable reason to close the canal. Since it has existed long before Florete acquired ownership of the fishpond, and the canal served as a passage of salt water, and as an outlet and drainage of rainwater from the school premises, an easement or servitude of water-right of way had thus been constituted on the property of respondents as the servient estate in favor of L Borres Elem School and nearby lands as dominant estates.

Citing the lower courts, even assuming that it was Florete who constructed the canal, an easement or servitude of water-right-ofway had nonetheless been constituted on the property because since it had been in continuous use for 15 years by the fishpond and adjacent lands. A positive easement had thereby been created and plaintiffs have no right to terminate it unilaterally, without violating art 6291 of the NCC. Respondents did not follow this law on easement. They closed the entrance of the canal and demolished portions of the main dike, thus impairing the use of the servitude by the dominant estate. They also violated PD 296, which enjoins any person, natural or juridical, to demolish structures or improvements which tend to obstruct the flow of water through rivers, creeks, esteros and drainage channels. It was found that before the canal was closed, the residents did not experience any flood in the area. The respondents alleged that they closed it because the residents threw waste, but it was belied by the showing that what motivated respondents to close was that fact that residents engaged in salt-making using the plastic bags, and competed with respondents production of salt in the area. Respondents are liable for damages since they instituted the action against the petitioners which brought upon them worries, anxiety, mental anguish. Respondents filed this action in bad faith to preempt whatever appropriate legal action they might have taken. IMPT ISSUE: which of the 2 estates is the dominant or servient estate The main canal was established as a passage of salt water and also an outlet and drainage canal. Even assuming that it was Florete who constructed said canal, an easement of water-right of way had already been constituted on the property of the respondents as the servient estate in favor of the L. Borres Elementary School premises and the nearby lands as the dominant estates. Respondents thus violated Art 629 of NCC when they closed the entrance of the canal and demolished portions of the main dike, thus impairing the use of the servitude by the dominant estates. RULING: WHEREFORE, premises considered, the assailed decision of the respondent appellate court is hereby REVERSED and SET ASIDE, and the judgment of the Regional Trial Court in Civil Case No. 12791 is hereby REINSTATED.

RTC also held that Tanedos a right to use the septic tank erected on Lot B, ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest

Issues: 1. Whether complaint failed to state a cause of action since Tanedo has no right to redeem lot B 2. Whether Tanedo has a right to use the septic tank. Ruling: 1. Complaint did not fail to state a cause of action. 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. Although Tanedo has no right to redeem Lot B based on 1622, his right to redeem the portion of Lot B being occupied by his building should have been determined at the pre-trial or trial on the merits. Further Tanedos action is also for recovery of damages by reason of a breach of promise by Cardenas.

2.

Tanedo still has a right to the use of the septic tank. As can be seen in Art. 631 2, 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 based on Article 624. 3 In the instant case, no statement abolishing or extinguishing the easement was mentioned in the deed of sale of Lot A to Taedo. Nor did Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot A before he sold said lot to Taniedo. Hence, the use of the septic tank is continued by operation of law.

SC reversed and set aside RTCs order and directed the respondent judge or another one designated in his place to proceed with the trial of this case on the merits. G.R. No. L-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. PADILLA, J.: cvflores Short Version Facts: Cerdenas inherited Lots A and B. On Lot B is a septic tank, for common use of the occupants of Lots A and B. Lot A was sold to Tanedo. Spouses Sim, claiming that they have bought Lot B, blocked the sewage pipes connecting Lot A to the septic tank. Held: Tanedo still has a right to the use of the septic tank. 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 based on Article 624.. Facts: Antonio Cerdenas inherited from Lourdes Cerdenas 2 parcels of land , Lot 7501-A (Lot A) and Lot 7501-B (Lot B) Lot A has an area of 140 square meters and on it is constructed an apartment building. o A small portion of the apartment building on Lot A also stands on Lot B Lot B has an area of 612 square meters and the following are constructed on it: o 4-door apartment o 2-storey house o Bodega o Septic tank for the common use of the occupants of Lots A and B Antonio Cerdenas sold Lot A to Eduardo Tanedo Cerdenas also mortgaged to Tanedo Lot B as a security for a loan in the amount of P10,000 Cerdenas further agreed that he would sell Lot B only to Taedo in case he should decide to sell it However spouses Romeo and Pacita Sim claimed that Lot B was sold to them by Cerdenas Tanedo offered to redeem the property from Sim, invoking Art. 1622 of the civil code Sps Sim refused Tanedos offer to redeem and instead blocked the sewage pipe connecting the building of Tanedo to the Septic Tank. Sim also asked Tanedo to remove the portion of the his building encroaching on Lot B. Tanedo, invoking 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 RTC against sps Sim and Cardenas
2

G.R. No. L-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. PADILLA, J.: cvflores Short Version Facts: Cerdenas inherited Lots A and B. On Lot B is a septic tank, for common use of the occupants of Lots A and B. Lot A was sold to Tanedo. Spouses Sim, claiming that they have bought Lot B, blocked the sewage pipes connecting Lot A to the septic tank. Held: Tanedo still has a right to the use of the septic tank. 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 based on Article 624.. Facts: Antonio Cerdenas inherited from Lourdes Cerdenas 2 parcels of land , Lot 7501-A (Lot A) and Lot 7501-B (Lot B) Lot A has an area of 140 square meters and on it is constructed an apartment building. o A small portion of the apartment building on Lot A also stands on Lot B Lot B has an area of 612 square meters and the following are constructed on it: o 4-door apartment o 2-storey house o Bodega o Septic tank for the common use of the occupants of Lots A and B Antonio Cerdenas sold Lot A to Eduardo Tanedo Cerdenas also mortgaged to Tanedo Lot B as a security for a loan in the amount of P10,000 Cerdenas further agreed that he would sell Lot B only to Taedo in case he should decide to sell it However spouses Romeo and Pacita Sim claimed that Lot B was sold to them by Cerdenas Tanedo offered to redeem the property from Sim, invoking Art. 1622 of the civil code Sps Sim refused Tanedos offer to redeem and instead blocked the sewage pipe connecting the building of Tanedo to the Septic Tank. Sim also asked Tanedo to remove the portion of the his building encroaching on Lot B. Tanedo, invoking 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 RTC against sps Sim and Cardenas Sim claimed that Tanedo has no right to redeem as the land sought to be redeemed is much bigger than the land owned by Taedo. Cerdenas filed a cross-claim against Sim, claiming that the Deed of Sale he executed in favor of Sps Lim was only intended as an equitable mortgage to secure payment of loans Sps Sim filed a motion to dismiss for lack of cause of action RTC ruled in favor of Sim and dismissed the complaint filed by Tanedo
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Art. 629: The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude. Nevertheless, if by reason of the place originally assigned or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be charged at his expense, provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement.

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 conditions, 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.

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.

Sim claimed that Tanedo has no right to redeem as the land sought to be redeemed is much bigger than the land owned by Taedo. Cerdenas filed a cross-claim against Sim, claiming that the Deed of Sale he executed in favor of Sps Lim was only intended as an equitable mortgage to secure payment of loans Sps Sim filed a motion to dismiss for lack of cause of action RTC ruled in favor of Sim and dismissed the complaint filed by Tanedo RTC also held that Tanedos a right to use the septic tank erected on Lot B, ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest

- Chans property, consisting of around 635 m2, situated in Del Pilar, San Fernando, Pampanga, surrounded by: Northern and Western Side various business establishments Southern Side land of Pineda Family East-Northeastern Side 161 m2 land of Phil Rabbit she is claiming for ROW Chan Contention: - Chan claims that her lot was almost completely surrounded by other immovable and cut off from the highway. Her only access to the highway was a very small opening measuring two feet four inches wide through the aforementioned property of Phil Rabbit. Chan believed she was entitled to a wider compulsory easement of right of way through the said property of Phil Rabbit. - The prospective subservient estate was a portion of a bigger lot consisting of 7,239 square meters and covered by TCT No. 163033-R, which was formerly owned by the Singian Brothers Corporation and was sold to Phil Rabbit without the knowledge and consent of Chan, who was thereby allegedly prevented from exercising her right of pre-emption or right of redemption. - Chan alleged that private respondent was about to complete the construction of its concrete fence on the said lot which would result in depriving her of the only available right of way, and that therefore, she was constrained to petition the trial court to enjoin Phil Rabbit from fencing said lot. Phil Rabbit Defense: - The parents and relatives of Chan were never tenants or lessees of the former owner, Singian Brothers; rather, they were found to be illegally occupying the property as ruled by the MTC-San Fernando, Pampanga, Branch 1, in Civil Case No. 4865. - Hence the former owners were not obliged to inform Chan of the sale. The land sold by the Singian Brothers was free from all liens and encumbrances as stated in the Deed of Absolute Sale. - Also, Chan had another access to the highway without passing through the lot in question. - RTC Ruled in favor of Phil Rabbit and CA affirmed. ISSUES:

Issues: 3. Whether complaint failed to state a cause of action since Tanedo has no right to redeem lot B 4. Whether Tanedo has a right to use the septic tank. Ruling: 3. Complaint did not fail to state a cause of action. 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. Although Tanedo has no right to redeem Lot B based on 1622, his right to redeem the portion of Lot B being occupied by his building should have been determined at the pre-trial or trial on the merits. Further Tanedos action is also for recovery of damages by reason of a breach of promise by Cardenas.

4.

Tanedo still has a right to the use of the septic tank. As can be seen in Art. 631 4, 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 based on Article 624.5 In the instant case, no statement abolishing or extinguishing the easement was mentioned in the deed of sale of Lot A to Taedo. Nor did Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot A before he sold said lot to Taniedo. Hence, the use of the septic tank is continued by operation of law.

SC reversed and set aside RTCs order and directed the respondent judge or another one designated in his place to proceed with the trial of this case on the merits. PACITA DAVID-CHAN VS. CA & PHIL. RABBIT BUS LINES, INC. February 26, 1997 Panganiban, J. Ronald SUMMARY: Chan is claiming an easement of right of way on the property of Phil Rabbit saying that her lot was almost completely surrounded by other immovable and cut off from the highway. Phil Rabbit is opposing saying that Chan had another access to the highway without passing through their lot. RTC ruled in favor of Phil Rabbit and affirmed by the CA and SC. SC ruled that Chan failed to prove the 1st, 2nd, and 3rd requisite in claiming a right of way. DOCTRINE: - The owner of an estate may claim a compulsory right of way only after he (or she) has established the existence of four requisites, namely: 1) The estate is surrounded by other immovables and is without adequate outlet to a public highway; 2) Proper indemnity is paid; 3) The isolation is not due to the proprietors own acts; and 4) 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. - There are rigorous standards to be complied with by owners of the dominant estate before they may be granted with easement of right of way. These standards must be strictly complied with because easement is a burden on the property of another. Before such inconvenience may be imposed by the Court, applicants must prove that they deserve judicial intervention on the basis of law, and certainly not when their isolation is caused by their own acts. In the latter case, they decide their detachment and must bear the consequences of such choice. FACTS: - Chan filed with the trial court an amended petition with prayer for preliminary prohibitory injunction, seeking to stop Phil. Rabbit Bus Lines, Inc. from fencing its property and depriving her of access to the highway.
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1. 2.
Ratio: 1. - The owner namely: 1) 2) 3) 4)

WON Chan is legally entitled to a right of way through Phil Rabbits property. NO. WON, in any event, she is entitled to such easement through the recognition and application of the Filipino values of pakikisama and pakikipagkapwa-tao. NO.

No, Chan is not legally entitled to a right of way through Phil Rabbits property. of an estate may claim a compulsory right of way only after he (or she) has established the existence of four requisites,

The estate is surrounded by other immovables and is without adequate outlet to a public highway; Proper indemnity is paid; The isolation is not due to the proprietors own acts; and 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. - Chan failed to show sufficient factual evidence to satisfy the requirements. - Chan failed to prove the 1st requirement as ruled by the CA that Chan is not without adequate outlet to a public highway: 1. Chan built a concrete fence on the southern boundary of her property to separate it from the property of the Pineda family. Worse, during the pendency of the case, she closed the 28-inch clearance which she could use as a means to reach the National Highway without passing through the property of defendant. If she wants a bigger opening, then she can always destroy a portion of the concrete fence which she erected and pass through the property of the Pineda family which, as shown on the attached sketch on the Commissioners Report, has an open space on the southern boundary of plaintiffs land. - Chan failed to prove the 3 rd requirement as ruled by the CA because she caused her own isolation by closing her access through the Pineda property: 1. Chan built a fence to separate her property from that of the Pineda family on the southern boundary. And she even closed the small opening causing her property to be isolated and losing one access to the National Highway. - Chan failed to prove the 2nd requirement as ruled by the CA the she failed to make a valid tender of the proper indemnity. - The questions of whether (1) Chan has another adequate outlet to the public highway, or (2) she caused her own isolation, or (3) she made, in fact, a tender of the proper indemnity are all issues of facts which this Court has no authority to rule upon. The Supreme Court is not a trier of facts. - It is doctrinal that findings of facts of the Court of Appeals upholding those of the trial court are binding upon this Court. While there are exceptions to this rule, Chan has not convinced the SC that this case falls under one of them. 2. No, Chan is not entitled to such easement through the recognition and application of the Filipino values of pakikisama and pakikipagkapwa-tao - Equity is applied only in the absence of, and never against, statutory law or judicial rules of procedure. - As found by the CA, Chan is not legally entitled to a right of way on the property of Phil Rabbit. Thus, such equitable arguments cannot prevail over the legal findings. - There are rigorous standards to be complied with by owners of the dominant estate before they may be granted with easement of right of way. These standards must be strictly complied with because easement is a burden on the property of another. Before such inconvenience may be imposed by the Court, applicants must prove that they deserve judicial intervention on the basis of law, and certainly not when their isolation is caused by their own acts. In the latter case, they decide their detachment and must bear the consequences of such choice. Dispositive: WHEREFORE, in view of the foregoing, the Petition is DENIED and the Decision dated April 30, 1992, of the respondent Court is AFFIRMED. Costs against petitioner.

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 conditions, 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.

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.

Spouses Sta. Maria and Florecerfida Sta. Maria v. CA and Spouses Fajardo January 28, 1998 DAVIDE, JR., J.:

Summary: Spouses Fajardo wants to have an easement of right of way established in the property of the spouses Florcerfida because they are surrounded by immovable with no other route towards the provincial road. The court granted the request because it is the shortest route with the least possible damage. FACTS: Spouses Fajardo are the registered owners of a land in Obando, Bulacan. They filed a complaint against the spouses Florcerfida requesting for the establishment of an easement of right of way because their property is surrounded by other properties with no other way to the provincial road. According to the Spouses Florcerfida, granting the easement of right of way would cause them damage and inconvenience, there are other alternative routes are available. Trial Court granted the easement of right of way because according to the ocular report: 1. No structure would be adversely affected 2. Sufficient vacant space 3. The property of the Spouses Florcerfida would provide the shortest route CA; Affirmed ISSUE: W/N a compulsory easement of right of way was established? RATIO: YES. Requirements: 1. Surrounded by other immovables with no adequate outlet to a public highway 2. Payment of proper indemnity the spouses Fajardo were willing to pay for the resulting damages 3. Isolation is not due to the act of the proprietor of the dominant estate the immovabes were already in place before they bought the property 4. Right of way claimed is the shortest way ocular inspection revealed that the other routes were circuitous and longer. Under Article 650, the easement of right of way shall be established at the point least prejudicial to the servient estate, as well as the shortest way to a public highway. According to the Ocular Report, it is the property of the Spouses Florcerfida provides the shortest route with the least amount of damage.