TEOFILO C. VILLARICO, petitioner, vs.

VIVENCIO SARMIENTO, SPOUSES BESSIE SARMIENTO-DEL MUNDO & BETH DEL MUNDO, ANDOKS LITSON CORPORATION and MARITES CARINDERIA, respondents. DECISION SANDOVAL-GUTIERREZ, J.: Before us is a petition for review on certiorari of the Decision 1 of the Court of Appeals dated December 7, 1998 in CA-G.R. CV No. 54883, affirming in toto the Decision 2 of the Regional Trial Court (RTC) of Paraaque City, Branch 259, dated November 14, 1996, in Civil Case No. 95-044. The facts of this case, as gleaned from the findings of the Court of Appeals, are: Teofilo C. Villarico, petitioner, is the owner of a lot in La Huerta, Paraaque City, Metro Manila with an area of sixty-six (66) square meters and covered by Transfer Certificate of Title (T.C.T.) No. 95453 issued by the Registry of Deeds, same city. Petitioners lot is separated from the Ninoy Aquino Avenue (highway) by a strip of land belonging to the government. As this highway was elevated by four (4) meters and therefore higher than the adjoining areas, the Department of Public Works and Highways (DPWH) constructed stairways at several portions of this strip of public land to enable the people to have access to the highway. Sometime in 1991, Vivencio Sarmiento, his daughter Bessie Sarmiento and her husband Beth Del Mundo, respondents herein, had a building constructed on a portion of said government land. In November that same year, a part thereof was occupied by Andoks Litson Corporation and Marites Carinderia, also impleaded as respondents. In 1993, by means of a Deed of Exchange of Real Property, petitioner acquired a 74.30 square meter portion of the same area owned by the government. The property was registered in his name as T.C.T. No. 74430 in the Registry of Deeds of Paraaque City. In 1995, petitioner filed with the RTC, Branch 259, Paraaque City, a complaint for accion publiciana against respondents, docketed as Civil Case No. 95-044. He alleged inter alia that respondents structures on the government land closed his "right of way" to the Ninoy Aquino Avenue; and encroached on a portion of his lot covered by T.C.T. No. 74430. Respondents, in their answer, specifically denied petitioners allegations, claiming that they have been issued licenses and permits by Paraaque City to construct their buildings on the area; and that petitioner has no right over the subject property as it belongs to the government. After trial, the RTC rendered its Decision, the dispositive portion of which reads: "WHEREFORE, premises considered, judgment is hereby rendered:

1. Declaring the defendants to have a better right of possession over the subject land except the portion thereof covered by Transfer Certificate of Title No. 74430 of the Register of Deeds of Paraaque; 2. Ordering the defendants to vacate the portion of the subject premises described in Transfer Certificate of Title No. 74430 and gives its possession to plaintiff; and 3. Dismissing the claim for damages of the plaintiff against the defendants, and likewise dismissing the claim for attorneys fees of the latter against the former. Without pronouncement as to costs. SO ORDERED."3 The trial court found that petitioner has never been in possession of any portion of the public land in question. On the contrary, the defendants are the ones who have been in actual possession of the area. According to the trial court, petitioner was not deprived of his "right of way" as he could use the Kapitan Tinoy Street as passageway to the highway. On appeal by petitioner, the Court of Appeals issued its Decision affirming the trial courts Decision in toto, thus: "WHEREFORE, the judgment hereby appealed from is hereby AFFIRMED in toto, with costs against the plaintiff-appellant. SO ORDERED."4 In this petition, petitioner ascribes to the Court of Appeals the following assignments of error: "I THE FINDINGS OF FACT OF THE HON. COURT OF APPEALS CONTAINED A CONCLUSION WITHOUT CITATION OF SPECIFIC EVIDENCE ON WHICH THE SAME WAS BASED. II THE HON. COURT OF APPEALS ERRED IN CONSIDERING THAT THE ONLY ISSUE IN THIS CASE IS WHETHER OR NOT THE PLAINTIFF-APPELLANT HAS ACQUIRED A RIGHT OF WAY OVER THE LAND OF THE GOVERNMENT WHICH IS BETWEEN HIS PROPERTY AND THE NINOY AQUINO AVENUE. III THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT ACCION PUBLICIANA IS NOT THE PROPER REMEDY IN THE CASE AT BAR. IV THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT THE EXISTENCE OF THE PLAINTIFF-APPELLANTS RIGHT OF WAY DOES NOT CARRY POSSESSION OVER THE SAME. V THE HON. COURT OF APPEALS ERRED IN NOT RESOLVING THE ISSUE OF WHO HAS THE BETTER RIGHT OF POSSESSION OVER THE SUBJECT LAND BETWEEN THE PLAINTIFF-APPELLANT AND THE DEFENDANT-APPELLEES."5 In their comment, respondents maintain that the Court of Appeals did not err in ruling that petitioners action for accion publiciana is not the proper remedy in asserting his "right of way" on a lot owned by the government.

Here, petitioner claims that respondents, by constructing their buildings on the lot in question, have deprived him of his "right of way" and his right of possession over a considerable portion of the same lot, which portion is covered by his T.C.T. No. 74430 he acquired by means of exchange of real property. It is not disputed that the lot on which petitioners alleged "right of way" exists belongs to the state or property of public dominion. Property of public dominion is defined by Article 420 of the Civil Code as follows: "ART. 420. The following things are property of public dominion: (1) Those intended for public use such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and other of similar character. (2) Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth." Public use is "use that is not confined to privileged individuals, but is open to the indefinite public." 6 Records show that the lot on which the stairways were built is for the use of the people as passageway to the highway. Consequently, it is a property of public dominion. Property of public dominion is outside the commerce of man and hence it: (1) cannot be alienated or leased or otherwise be the subject matter of contracts; (2) cannot be acquired by prescription against the State; (3) is not subject to attachment and execution; and (4) cannot be burdened by any voluntary easement. 7 Considering that the lot on which the stairways were constructed is a property of public dominion, it can not be burdened by a voluntary easement of right of way in favor of herein petitioner. In fact, its use by the public is by mere tolerance of the government through the DPWH. Petitioner cannot appropriate it for himself. Verily, he can not claim any right of possession over it. This is clear from Article 530 of the Civil Code which provides: "ART. 530. Only things and rights which are susceptible of being appropriated may be the object of possession." Accordingly, both the trial court and the Court of Appeals erred in ruling that respondents have better right of possession over the subject lot. However, the trial court and the Court of Appeals found that defendants buildings were constructed on the portion of the same lot now covered by T.C.T. No. 74430 in petitioners name. Being its owner, he is entitled to its possession. WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals dated December 7, 1998 in CA-G.R. CV No. 54883 is AFFIRMED with MODIFICATION in the sense that neither petitioner nor respondents have a right of possession over the disputed lot where the stairways were built as it is a property of public dominion. Costs against petitioner. SO ORDERED. Kinds of easement

Real and personal servitudes G.R. No. L-17482 March 31, 1966 ET AL., plaintiffs,

GENOVEVA R. JABONETE, vs. JULIANA MONTEVERDE, ET ANTONIO LEGASPI, DEVELOPMENT BANK OF THE MRS. LUZ ARCILLA, petitioner-intervenor-appellee. Zuo and Mojica Jesus Avancea for the plaintiffs. REGALA, J.: for

AL., defendants, respondent-appellant, PHILIPPINES, petitioner-appellee, the respondents-appellants.

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

1. Los demandantes no instalaran en su terreno su taller de reparacion de vehiculos de motor. 2. Los demandantes pueden construir su garaje dentro de su terreno para su jeep (AC), pero no los tendran parados en la calle privada del demandados construida por este en su terreno a lo largo del terreno de los demandantes; 3. Los demandantes contribuiran a prorata con el demandado los gastos de reparacion de la calle privada construida por el referido demandado en su terreno a lo largo del terreno de los demandantes. 1wph1.t 4. El demandado, Antonio Legaspi, permitira el uso y paso en la calle privada construida por el en su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos, chofers, servidumbre y de sus jeeps. 5. Para los fines del uso de la calle, el demandado permitira a los demandantes, frente de la casa de estos, abrir una puerta de 4 metros de ancho en el corral construido por el demandado que separa la calle privada y el terreno de los demandantes, a su (demandantes) costa; sus hojas tendran por dentro, que los demandantes tendran cerradas para evitar que los nios, hijos de los inquilinos del demandado tengan acceso a los jeeps de los demandantes, cuyo garaje tendran dentro de su (demandantes) terreno. El Juzgado ordena a las partes litigantes complan estrictamente con lo estipulado; de los contrario, los mismos estaran sujetos a las ordenes de este Juzgado. As a result of the above agreement and Order of May 24, 1954, the defendant abandoned the prosecution of his appeal. At the same time, both parties complied with its terms until the plaintiffs, unable to continue with their repair shop, transferred to another place in December 1959 whereupon the defendant reconstructed his fence and its footing, closing thereby the opening previously made by the plaintiffs. In the course of time, the plaintiffs' lot was foreclosed by the Development Bank of the Philippines (DBP) which, later still, conveyed it under a conditional sale to Mrs. Luz Arcilla. On her acquisition of the said lot, Mrs. Arcilla demanded of the defendant the re-opening of the fence in question as it was her plan to construct her house in the said lot. When the defendant refused, the Development Bank filed with the lower court a petition to hold the said defendant in contempt. To this petition, Mrs. Luz Arcilla later intervened and was so allowed by the lower court. The Development Bank of the Philippines and Mrs. Luz Arcilla contended that the refusal of the defendant to cause or allow the making of an opening in his fence was a defiance of the said court's decision of March 11, 1954 and was, therefore, contemptuous. After due hearing, the lower court sustained the petitioners and found the defendant guilty of contempt with orders "to pay a fine of One Hundred Pesos (P100.00) and to open the vereda or alley leading to the lot owned by the Development Bank of the Philippines and conveyed to Mrs. Luz S. Arcilla under a conditional deed of sale, otherwise he should be imprisoned until he does so." Thus, the instant appeal. The respondent-appellant maintains that the lower court erred in finding him guilty of contempt because: 1. The decision of March 11, 1954 was novated by the order of May 24, 1954. Consequently, he could not have violated the former decree since with its novation it ceased to have any legal effect. 2. Even assuming that the said decision was not novated by the subsequent order of May 24, 1954, still he could not be deemed to have violated the said decision because the same never became final and executory. The respondent-appellant argued that since the decision of March 11, 1954 ordered the opening of a right of

way in his property without providing for this corresponding compensation to him, contrary to Article 649 of the Civil Code,1 there was in the said decision "a void which ought to be filled or to be done in order to completely dispose of the case. It was not clear, specific and definitive," and consequently, a judgment that could not have acquired finality. 3. The right to file contempt proceedings against him, with respect to the decrees contained in the decision of March 11, 1954, has prescribed. The respondent-appellant conceded that there is no prescriptive period for the institution of contempt proceedings. However, he contended that inasmuch as contempt under Rule 64 of the Rules of Court is punishable by arresto mayor, it should prescribe in five years just as crimes for which the said penalty is imposed prescribe, under the Penal Code, in five years. Without passing on the merits or demerits of the foregoing arguments, this Court believes that the order finding the respondent-appellant guilty of contempt should be reversed. It is clear that the order of May 24, 1954 superseded and was fully intended by the lower court to modify or stand in substitution of the decision of March 11, 1954. More than the expression of the parties amicable agreement on the dispute, the said order was the lower court's resolution of the respondent-appellant's motion for reconsideration of the decision of March 11, 1954. In the determination, therefore, of the said appellant's obligation relative to the easement in question, the latter and not the decision of March 11, 1954 is the proper point in reference. Under the aforesaid order of May 24, 1954, the easement awarded or secured by the lower court to the plaintiffs was strictly a personal one. The right of way granted was expressly limited to the latter and their "family, friends, drivers, servants and jeeps." In the very language of the agreement the following appears: El demandado Antonio Legaspi, permitira el uso y paso en la calle privada construida por el en su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos, chofers, servidumbre y de sus jeeps. The servitude established was clearly for the benefit alone of the plaintiffs and the persons above enumerated and it is clear that the lower court, as well as the parties addressed by the said order, did not intend the same to pass on to the plaintiffs' successors-in-interest. In other words, the right acquired by the original plaintiffs was a personal servitude under Article 614 of the Civil Code, and not a predial servitude that inures to the benefit of whoever owns the dominant estate. In resisting the extension of the aforementioned easement to the latter, the plaintiffs' successors-in-interest, the respondent-appellant, therefore, was not defying the decision of March 11, 1954 which was then no longer subsisting, nor the order of May 24, 1954 since the said successors-in-interest had no right thereunder. Another evidence that the servitude in question was personal to the plaintiffs is the fact that the same was granted to the latter without any compensation to the respondent-appellant. Wherefore, the order of the lower court dated March 11, 1960 finding the respondent-appellant guilty of contempt is hereby reversed, without pronouncement as to costs. Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. Bautista Angelo and Dizon, JJ., took no part. Footnotes

ART. 649. "The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after the payment of the proper indemnity." G.R. No. 136996 December 14, 2001

EDILBERTO ALCANTARA, FLORENCIO VILLARMIA, POLICARPIO OBREGON, + RICARDO ROBLE, ESCOLASTICA ONDONG, ESTEBAN RALLOS, HENRY SESBINO, SERGIO SESBINO, MANUEL CENTENO, + RENATO CRUZ, MARCELINO CENEZA, BUENAVENTURA ONDONG, and BENJAMIN HALASAN, petitioners, vs. CORNELIO B. RETA, JR., respondent. PARDO, J.: The Case In this petition for review,1 petitioners seek to review the decision 2 of the Court of Appeals affirming the decision3 of the Regional Trial Court, Davao City, Branch 14, dismissing petitioners' complaint for the exercise of the right of first refusal under Presidential Decree No. 1517, injunction with preliminary injunction, attorney's fees and nullity of amicable settlement. The Facts Edilberto Alcantara, Florencio Villarmia, Policarpio Obregon, Ricardo Roble, Escolastica Ondong, Esteban Rallos, Henry Sesbino, Sergio Sesbino, Manuel Centeno, Renato Cruz, Marcelo Ceneza, Buenaventura Ondong and Benjamin Halasan, filed with the Regional Trial Court, Davao City, Branch 14, a complaint 4 against Cornelio B. Reta, Jr. for the exercise of the right of first refusal under Presidential Decree No. 1517, injunction with preliminary injunction, attorney's fees and nullity of amicable settlement. The plaintiffs claimed that they were tenants or lessees of the land located in Barangay Sasa, Davao City, covered by Transfer Certificate of Title No. T-72594, owned by Reta; that the land has been converted by Reta into a commercial center; and that Reta is threatening to eject them from the land. They assert that they have the right of first refusal to purchase the land in accordance with Section 3(g) of Presidential Decree No. 1517 since they are legitimate tenants or lessees thereof. They also claimed that the amicable settlement executed between Reta and Ricardo Roble was void ab initio for being violative of Presidential Decree No. 1517. On the other hand, Reta claimed that the land is beyond the ambit of Presidential Decree No. 1517 since it has not been proclaimed as an Urban Land Reform Zone; that the applicable law is Batas Pambansa Blg. 25 for failure of the plaintiffs to pay the rentals for the use of the land; and that the amicable settlement between him and Ricardo Roble was translated to the latter and fully explained in his own dialect. On March 8, 1994, the trial court rendered a decision dismissing the complaint and ordering the plaintiffs to pay Reta certain sums representing rentals that had remained unpaid. 5 On April 6, 1994, plaintiffs appealed the decision to the Court of Appeals. 6

On December 9, 1998, the Court of Appeals promulgated a decision 7 affirming in toto the decision of the trial court. Hence, this appeal.8 The Issue The issue is whether petitioners have the right of first refusal under Presidential Decree No. 1517. The Court's Ruling The petition is without merit. The area involved has not been proclaimed an Urban Land Reform Zone (ULRZ). In fact, petitioners filed a petition with the National Housing Authority requesting that the land they were occupying be declared as an ULRZ. On May 27, 1986, the request was referred to Mr. Jose L. Atienza, General Manager, National Housing Authority, for appropriate action. 9 The request was further referred to acting mayor Zafiro Respicio, Davao City, as per 2nd Indorsement dated July 1, 1986. 10 Clearly, the request to have the land proclaimed as an ULRZ would not be necessary if the property was an ULRZ. Presidential Decree No. 1517, otherwise known as "The Urban Land Reform Act," pertains to areas proclaimed as Urban Land Reform Zones. 11 Consequently, petitioners cannot claim any right under the said law since the land involved is not an ULRZ. To be able to qualify and avail oneself of the rights and privileges granted by the said decree, one must be: (1) a legitimate tenant of the land for ten (10) years or more; (2) must have built his home on the land by contract; and, (3) has resided continuously for the last ten (10) years. Obviously, those who do not fall within the said category cannot be considered "legitimate tenants" and, therefore, not entitled to the right of first refusal to purchase the property should the owner of the land decide to sell the same at a reasonable price within a reasonable time.12 Respondent Reta denies that he has lease agreements with petitioners Edilberto Alcantara and Ricardo Roble.13 Edilberto Alcantara, on the other hand, failed to present proof of a lease agreement other than his testimony in court that he bought the house that he is occupying from his father-in-law. 14 Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62) coconut trees for P186 from where he gathered tuba. This arrangement would show that it is a usufruct and not a lease. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. 15 Petitioner Roble was allowed to construct his house on the land because it would facilitate his gathering of tuba. This would be in the nature of a personal easement under Article 614 of the Civil Code. 16 Whether the amicable settlement 17 is valid or not, the conclusion would still be the same since the agreement was one of usufruct and not of lease. Thus, petitioner Roble is not a legitimate tenant as defined by Presidential Decree No. 1517.

As to the other petitioners, respondent Reta admitted that he had verbal agreements with them. This notwithstanding, they are still not the legitimate tenants contemplated by Presidential Decree No. 1517, who can exercise the right of first refusal. A contract has been defined as "a meeting of the minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.'' 18 Clearly, from the moment respondent Reta demanded that the petitioners vacate the premises, the verbal lease agreements, which were on a monthly basis since rentals were paid monthly, 19 ceased to exist as there was termination of the lease. Indeed, none of the petitioners is qualified to exercise the right of first refusal under P.D. No. 1517. Another factor which militates against petitioners' claim is the fact that there is no intention on the part of respondent Reta to sell the property. Hence, even if the petitioners had the right of first refusal, the situation which would allow the exercise of that right, that is, the sale or intended sale of the land, has not happened. P.D. No. 1517 applies where the owner of the property intends to sell it to a third party. 20 The Fallo WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the decision of the Court of Appeals 21 and the resolution denying reconsideration thereof. No costs. SO ORDERED. Public and private easements G.R. No. L-42334 October 31, 1936 CO., plaintiff-appellant,

NORTH NEGROS SUGAR vs. SERAFIN HIDALGO, defendant-appellee.

Hilado and Hilado for Simeon Bitanga for Ross, Lawrence, Selph and Carrascoso and DeWitt, Perkins and Ponce Enrile as amici curi.

appellant. appellee.

RECTO, J.: On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental Negros a complaint praying, upon the allegations contained therein, that in an injunction be issued, restraining the defendant from entering or passing through the properties of the plaintiff, specially through the "mill site" of plaintiff's sugar central.

It appears that the plaintiff is the owner of a site in which is located its sugar central, with its factory building and residence for its employees and laborers, known as the "mill site." It also owns the adjoining sugar plantation known as Hacienda "Begoa." Across its properties the plaintiff constructed a road connecting the "mill site" with the provincial highway. Through this road plaintiff allowed and still allows vehicles to pass upon payment of a toll charge of P0.15 for each truck or automobile. Pedestrians are allowed free passage through it. Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of Luciano Aguirre, known as Hacienda "Sagay," where the defendant has a billiard hall and a tuba saloon. Like other people in and about the place, defendant used to pass through the said road of the plaintiff, because it was his only means of access to the Hacienda "Sagay" where he runs his billiard hall and tuba saloon. Later on, by order of the plaintiff, every time that the defendant passed driving his automobile with a cargo of tuba plaintiff gatekeeper would stop him and prevent him from passing through said road. Defendant in such cases merely deviated from said road and continued on his way to Hacienda "Sagay" across the fields of Hacienda "Begoa," likewise belonging to the plaintiff. The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its property has not been established by the evidence adduced in this case. This the plaintiff admits in its brief (p.15). Neither is there any evidence to show that the defendant actually created disturbance in plaintiff's properties, including its "mill site." Other pertinent facts will be stated in appropriate places in this decision. A. First of all it may be stated that in the case at bar the injunction applied for, constitutes, unlike the auxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief should only be granted, therefore, after it has been established not only that the right sought to be protected exists, but also that the acts against which the injunction is to be directed are violative of said right. SEC. 164. Circumstances under which a preliminary injunction may be granted. A preliminary injunction may be granted when it is established, in the manner herein-after provided, to the satisfaction of the judge granting it: 1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually; 2. That the commission or continuance of some act complained of during the litigation would probably work in justice to the plaintiff; 3. That the defendant is doing, or threatens, or is about to do, or in procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject to the action, and tending to render the judgment ineffectual. (Code of Civil Procedure.) In order that, at the final trial of a case, an injunction may issue perpetually prohibiting the repetition or continuation of an act complained of, it is indispensable that it shall have been proven at trial that he who seeks such a remedy is entitled to ask for it; if he is not, his request must be denied. (Tumacder vs. Nueva, 16 Phil., 513.)

The extraordinary remedy of injunction will not be granted to prevent or remove a nuisance unless there is a strong case of pressing necessity, and not because of a trifling discomfort. (De Ayala vs. Barretto, 33 Phil., 538.) The existence of a right violated is a prerequisite to the granting of an injunction. . . . A permanent injunction should not be awarded except in a clear case and to prevent irreparable injury. (32 C. J., 34-36.) A court of chancery will not entertain a bill enforce a mere valueless abstract right, and the court will, on its own motion, raise the point for its own protection. (Dunnom vs. Thomsen, 58 Ill. App., 390.) None of these requisites is present in the instant case. There has been a failure to establish either the existence of a clear and positive right of the plaintiff specially calling for judicial protection through an extraordinary writ of the kind applied for, or that the defendant has committed or attempts to commit any act which has endanger or tends to endanger the existence of said right, or has injured or threatens to injure the same. In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff made under oath in its complaint the following allegations, which later turned out to be untrue, or, at least, beyond the capacity of plaintiff to prove: 3. That on sundry occasions heretofore, the defendant used to go to the said "mill site" of the plaintiff, passing over the latter's private roads, and there caused trouble among the peaceful people of the place. 4. That the plaintiff, through its representatives, has prohibited the defendant from entering its private property, but this notwithstanding, the defendant still persists in repeating his incursions into the said private roads and "mill site" of the plaintiff, disturbing public order and molesting plaintiff's employees and their families. The court, in its order granting the preliminary injunction said: Considering the said injunction and the sworn statement of its correctness filed by plaintiff's attorneys 1 and it appearing satisfactorily that the issuance of a preliminary injunction is in order because of the sufficiency of the grounds alleged, upon the filing of a bond, it is hereby, etc. . . . . After obtaining the preliminary injunction, the plaintiff amended its complaint by eliminating therefrom those very allegations upon which the court granted the temporary remedy, namely, the acts imputed to the defendant "of causing trouble among the peaceful people of plaintiff's "mill site," and of disturbing public order and molesting plaintiff's employees and their families within the private roads and the "mill site" of the plaintiff." The plaintiff doubtless overlooked the fact that the allegation it availed of to obtain a preliminary injunction was necessary to secure one of a permanent character. In its new complaint, its only grievance is that the defendant insists in passing through its property to take tuba to the Hacienda "Sagay" (which does not belong to the plaintiff but to Luciano Aguirre, and where the defendant has established a legitimate business). The amended complaint no longer alleges that the defendant went to the "mill site" and to the private roads of the plaintiff "to cause trouble, disturb public order and molest plaintiff's employees and their families." It develops, however, that neither the original complaint nor the one amended states how and why the mere passage of the defendant over plaintiff's estate to convey tuba to the Hacienda "Sagay" has caused

damages to the plaintiff's property rights, requiring the unusual intervention and prohibition thereof by the courts through injunctive relief. The plaintiff failed not only to make any allegation to this effect, but also to the state that the road on its property where the defendant used to pass on his way to the Hacienda "Sagay" was open to the public in general, and that the plaintiff, exercising without any permit a power exclusively lodged in the state by reason of its sovereign capacity, required the payment of passage fees for the use of said road. Now, there being no contention here that the defendant, in passing over plaintiff's estate to take tuba to the Hacienda "Sagay," occasioned damages to such estate, or that he sold tuba within the confines thereof, what could have been the basis of the plaintiff's right for which the special protection of the court is invoked, and of the illegal act laid at defendant's door? Defendant's passage over plaintiff's property does not, of itself, constitute an unlawful act inasmuch as the plaintiff, of its own accord, opened the same to the public conditioned only upon the payment of transit fees by motor vehicles. Neither does the mere transportation of tuba over plaintiff's estate amount to a violation of the latter's property rights, unless the goods' destination be at any point within the confines thereof, or unless the said goods be sold in transit to the laborers and employees of the plaintiff, which, as plaintiff itself admits in his brief. (p. 15), has not been shown. The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid does not consist in defendant's taking tuba with him while traversing the former's property, as there is no causal relation between the act and any resultant damage, but in the fact that tuba is disposed of at the Hacienda "Sagay" to which plaintiff's laborers have access. What should, therefore, be enjoined, if it were legally possible, is defendant's sale of tuba at the Hacienda "Sagay," and not its conveyance across plaintiff's estate. But if, as plaintiff concedes (brief, p. 16), the former cannot legally enjoined, least of all can the latter be restrained as long as the public in general is free to go about the said property and it has not been shown that the defendant, in passing through, it has occasioned damage thereto or has committed any act infringing plaintiff's property rights or has refused to pay the required road toll. Defendant's sale of tuba at the Hacienda "Sagay" is nothing more than the exercise of a legitimate business, and no real damage to the third persons can arise from it as a natural and logical consequence. The bare possibility that plaintiff's laborers, due to the contiguity of the Hacienda "Sagay" to its property, might come to the defendant's store to imbibe tuba to drunkenness, does not warrant the conclusion that the defendant, in thus running this business, impinges upon plaintiff's property rights and should thereby be judicially enjoined. The damage which plaintiff seeks to enjoin by this action does not consist, as has been demonstrated, in defendant's maintaining a tuba store at the Hacienda "Sagay," or in defendant's crossing its property while taking tuba to the Hacienda "Sagay," but in its laborers finding their way to the said hacienda in order to buy tuba and become drunk. In other words, the act sought to be restrained as injurious or prejudicial to plaintiff's interests, is that committed, not by the defendant, but by plaintiff's own laborers. Rightly and logically, the injunction should be directed against said laborers to the end that they should abstain from going to the Hacienda "Sagay" in order to buy tuba and become drunk. As it would seem unusual for the plaintiff to do this, it should at least exercise stricter vigilance and impose rigorous discipline on its laborers by, for instance, punishing drunkenness with expulsion. Plaintiff's remedy lies in its own hand and should not be looked for in the courts at the sacrifice of other interests no less sacred and legitimate than the plaintiff's. Where one has a right to do a thing equity has no power to restrain him from doing it. (Dammann vs. Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law will not be enjoined (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw., 205). Lawful exercise of rights incidentally injuring others may not be enjoined by injunction. (14 R. C. L., 369.) "It is . . . an established principle that one may

not be enjoined from doing lawful acts to protect and enforce his rights of property or of persons, . . . ." (14 R. C. L., pp. 365, 366.) It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at his store in the Hacienda "Sagay," but from passing through its property to introduce tuba to said hacienda (plaintiff's brief, p. 16.) The legal rule, however, is that what the law does not authorize to be done directly cannot be hone indirectly. If the plaintiff cannot judicially enjoin the defendant from selling tuba at the Hacienda "Sagay," neither can it obtain said injunction to prevent him from passing over its property to transport tuba to that place as long as the defendant is ready to pay the transit fees required by the plaintiff and does not sell the said goods inside the said property. Suppose that the defendant, instead of being a tuba vendor, is a social propagandist whose preachings, while not subversive of the established legal order, are not acceptable to some capitalistic organizations, say the plaintiff. Suppose that the defendant, armed with the corresponding official permit, should desire to go to Hacienda "Sagay" through plaintiff's estate for the purpose of explaining to the laborers the advantage of the latter organizing themselves into unions, or joining existing ones, to better defend their interests. Plaintiff learns in time of the plan and determines to frustrate it in the belief that it would be prejudicial to its interests for the laborers to be "unionized," while it is for its good that the laborers be contracted under the so-called "open shop" system. Unable to stop the holding of the meeting because the same is not to take place on its property may he plaintiff secure an injunction from the court to prevent the defendant to pass through the said property in order to reach the place of the meeting, by alleging that the defendant entertains theories of social reform which might poison the minds of the laborers at the expense of the plaintiff's interests? May the latter, under the same hypothesis, maintain that the defendant's act in passing through its property, which is open to public use, constitute trespass or usurpation restrainable by injunction? If the answer to these questions is, as it must be, in the negative, the present case is not susceptible of a different solution. The only difference between the two cases is that in the one supposed the dreaded damage to plaintiff's interests is of more moment and of more lasting effect than in the case at bar. When a private road has been thrown open to public use, no action for trespass is maintainable against any person who desires to make use thereof; consequently, an injunction suit likewise does not lie. Private roads, except where laid out under constitutional provisions authorizing the condemnation of private property for a private use, are public roads in the sense that they are open to all who see fit to use them, and it is immaterial that the road is subject to gates and bars, or that it is merely a cul de sac. Being thus considered as a public road, it necessarily follows that the owner of the land through which the road is laid out cannot maintain an action of trespass against any person using it; . . . (50 C. J., pp. 397, 398.) . . . Where it is clear that the complainant does not have the right that he claims, he is not entitled to an injunction, either temporary or perpetual, to prevent a violation of such supposed right. . . . An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give rise to a cause of action, . . . . (32 C. J., pp. 34, 35.) B. In its brief, plaintiff states:

In transporting the tuba which he sells in his saloon in Hacienda "Sagay" the defendant used to pass thru the private road of the plaintiff which connects its sugar central with the provincial road. On this private road the plaintiff has put up a gate under the charge of a keeper, and every time that the defendant passed with a cargo of tuba the gatekeeper would stop him and remind him that the tuba was not permitted entry into

the private properties of the company, but instead of heeding this prohibition the defendant would simply deviate from the road and continue on his way to hacienda "Sagay" by way of the fields of Hacienda "Begoa." which is also the private property of the plaintiff. It is deducible from the above statement that, whenever the gatekeeper of the plaintiff prevented the defendant from passing thru its so-called "private road," on his way to the provincial road to Hacienda "Sagay," the defendant deviated from said road and carried the tuba across the lands of Hacienda "Begoa" leading to the Hacienda "Sagay." The evidence discloses that the passageway across the Hacienda "Begoa," is the same one frequented by carabaos (s. t., 32, 36). Plaintiff intends not only to prohibit the defendant from using the road in question, but also from crossing the lands of the Hacienda "Begoa," also belonging to the plaintiff, where carabaos are allowed to roam. An act so shocking to the conscience, one is reminded, could only have been perpetrated during the feudal period when human rights were unmercifully sacrificed to property rights. If an injunction should lie in the instant case, it should be in favor of the defendant and against the plaintiff, to enjoin the latter from obstructing the former to pass over the road in question to convey tuba to the Hacienda "Sagay." It is indeed strange that it is the plaintiff and not the defendant that should have applied for the remedy. . . . An injunction will not be granted when good conscience does not require it, where it will operate oppressively or contrary to justice, where it is not reasonable and equitable under the circumstances of the case, or where it will tend to promote, rather than to prevent, fraud and injustice. . . . (32 C. J., p. 33.) . . . a court of equity may interfere by injunction to restrain a party from enforcing a legal right against all equity and conscience. . . . (14 R. C. L., pp. 365, 366, par. 66.) . . . The comparative convenience or inconvenience of the parties from granting or withholding the injunction should be considered, and none should be granted if it would operate oppressively or inequitably, or contrary to the real justice of the case. This doctrine is well established. . . . (14 R. C. L., pp. 357, 358, par. 60.) The power of the courts to issue injunctions should be exercised with great caution and only where the reason and necessity therefor are clearly established; and while this rule has been applied more frequently in the case of preliminary and mandatory injunctions, it applies to injunctions of all classes, and to restraining orders. . . . (32 C. J., pp. 33, 34.) The writ of injunction will not be awarded in doubtful or new cases not coming within well-established principles of equity. (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617; Hardesty vs. Taft, 87 Am. Dec., 584.) C. Plaintiff's action is frivolous and baseless. Plaintiff states in the sixth paragraph of its amended complaint: 6. That, in addition, the plaintiff, in the exercise of it property rights, does not want to allow the entry of the defendant in any part of its estate above mentioned in order to avert any friction or ill-feeling against him. The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling" against the defendant, invoking its sacred property rights, attempts to intrust to them a mission at once beyond those conferred upon them by the Constitution and the laws, and unbecoming of their dignity and decorum. D. Plaintiff has not established the existence, real or probable of the alleged damage against which the injunction is invoked.

As has been seen, the allegations of the amended complaint do not justify the granting of an injunction. The said allegations only state, as the basis of plaintiff's action, that the defendant insists in passing or "making incursions" on plaintiff's property to take tuba to the Hacienda "Sagay," and the plaintiff wants to avoid "friction and ill-feeling against him." Such allegations do not imply the existence, of any real damage to plaintiff's rights which should be enjoined, and do not, therefore, constitute a legal cause of action. On the other hand, what the plaintiff attempted to establish by its evidence differs from the allegations of its amended complaint. What said evidence really discloses is not, that the plaintiff had forbidden the defendant to convey tuba to the Hacienda "Sagay" through plaintiff's estate, but to introduce tuba into the central or to place tuba on its lands, or, according to Exhibit A, to trespass illegally on plaintiff's estate. The testimony of the gatekeeper Santiago Plagata and the accountant Ankerson is as follows: Q. Why did you detain him? A. Because the Central forbids the bringing of tuba to the Central. Q. Why does the Central prohibit the entry of tuba? A. The Central prohibits the entry of tuba there because the laborers, generally, buy tuba, drink it and become drunk, and are unable to work, and sometimes they fight because they are drunk. (S. t., p. 5.) Q. Why did you kick them? A. Because the North Negros Sugar Co. prohibits the placing of tuba on those lands. (S. t., pp. 38, 39.) Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites: Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935. Present. SIR: Effective this date, you are hereby forbidden to trespass upon any of the Company's properties under penalties of law prescribed for trespass. NORTH INTEGROS By: (Sgd.) Y. Manager SUGAR E. CO., INC,. GREENFIELD

It will be noted that according to this letter, the defendant was enjoined by the plaintiff from passing thru its properties, whether he carried tuba or not. Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has brought tuba to the "mill site," or has sold it within its property, is fatal to the present action charging the defendant with said acts. E. The well-known principle of equity that "he who comes to equity must come with clean hands" bars the granting of the remedy applied for by the plaintiff. It has been already stated that the plaintiff, to obtain a preliminary injunction in this case, alleged under oath in its original complaint facts which it knew to be false, or, at least, unprobable, because it did not only eliminate them from the amended complaint which it filed after the issuance of the preliminary injunction, but it failed to substantiate them at the trial. We refer to the following allegations: "that the defendant used to go to the "mill site" of the plaintiff passing through plaintiff's private roads and there cause trouble among peaceful

people of the place," and "that notwithstanding the prohibition of the plaintiff, the defendant insists in repeating his incursions into the said private roads and "mill site" of the plaintiff, disturbing public order and molesting plaintiff's employees and their families." If said allegations were true, it is evident that plaintiff was entitled to a preliminary injunction at the commencement of the trial, and to a permanent injunction after the was rendered. But such is not the case, as the subsequent theory of the plaintiff, announced in its amended complaint, is not that the defendant "made incursions into the "mill site" and private roads of the plaintiff, causing trouble, disturbing public order, and molesting plaintiff's employees and their families," but only that the defendant, to take tuba to the Hacienda "Sagay," belonging to Luciano Aguirre, insisted in passing through plaintiff's estate. From all this it follows that the plaintiff in order to obtain a preliminary injunction, trifled with the good faith of the lower court by knowingly making untrue allegations on matters important and essential to its cause of action. Consequently, it did not come to court with clean hands. Coming into Equity with Clean Hands. The maxim that he who comes into equity must come with clean hands is, of course, applicable in suits to obtain relief by injunction. Injunction will be denied even though complainant shows that he has a right and would otherwise be entitled to the remedy in case it appears that he himself acted dishonestly, fraudulently or illegal in respect to the matter in which redress is sought, or where he has encouraged, invited or contributed to the injury sought to be enjoined. However, the general principle that he who comes into equity must come with clean hands applies only to plaintiff's conduct relation to the very matter in litigation. The want of equity that will bar a right to equitable relief for coming into court with unclean hands must be so directly connected with the matter in litigation that it has affected the equitable relations of the parties arising out of the transaction in question. (32 C. J. pp. 67, 68.) At this point, attention should be directed to other facts of the case indicative of the censurable attitude which the plaintiff has taken in connection therewith. On one occasion, the defendant drove his automobile along the road in question, accompanied by Antonio Dequia, headed for the Hacienda "Sagay." As they had tuba with them, on reaching the gate they were halted by the gatekeeper. The defendant and his companion got off the car and unloaded the tuba in order to follow the passageway across the lands of the Hacienda "Begoa," through which plaintiff's carabaos passed, until they could reach "Sagay." Thereupon, one Ankerson, accountant and auditor of the plaintiff, arrived and no sooner he had laid eyes on the tuba containers than he indignantly kicked them and uttered a blasphemy to both, spilling the contents thereof. The defendant protested and asked Ankerson to indemnify him for the value of the tuba which had been wasted, to which Ankerson replied that he would make good what should be paid, and he then and there wrote and handed over a note to the defendant for presentation to plaintiff's cashier. The defendant presented the note, but this claim was not paid, and instead he was prosecuted for trespass in the justice of the peace court of Manapla under article 281 of the Revised Penal Code. So absurd and malicious was the charge that the court, in acquitting the defendant, entered the following order (Exhibit 3): A peaceful citizen who passes through a private road open to the public does not commit the crime of trespass. Although the prohibition to the accused to be in a private property should be manifest, if the latter is not fenced or uninhabited, the mere fact that the accused is found on the place in question, for a lawful purpose, does not constitute the crime of trespass defined and punished under article 281 of the Revised Penal Code. The plaintiff did not stop at this; it filed the present action for injunction which, as has been seen, is nothing more than the culmination of a series of affronts which the plaintiff has perpetrated, privately and through the courts, against the defendant.

F. The exercise of discretion by trial courts in matters injunctive should not be interfered with by appellate courts except in cases of manifest abuse. . . . The court which is to exercise the discretion is the trial court and not the appellate court. The action of the court may be reviewed on appeal of error in case of a clear abuse of discretion, but not otherwise, and ordinarily mandamus will not lie to control such discretion. (32 C. J., sec. 11, p. 33.) True, the rule has particular application to preliminary injunctions, but the rule should not be otherwise with respect to permanent injunctions especially where, as in this case, the trial court, after granting the preliminary injunction, set the same aside in its final decision on a careful review of the evidence. II It is undisputed the road in question was constructed by the plaintiff on its own land, and that it connects the central or the "mill site" with the provincial road. We have also the admission that the plaintiff made this road accessible to the general public, regardless of class or group of persons or entities. Its use has been extended to employees and laborers of the plaintiff; and so also to all those who have a mind to pass through it, except that, in cases of motor vehicles, a passage fee of P0.15, each should be paid. There is no contention here that the defendant had refused to pay said tolls whenever he wanted to drive his car along the road in question. We, therefore, have the case of an easement of way voluntarily constituted in favor of a community. Civil Code articles 531 and 594 read: ART. 531. Easements may also be established for the benefit of one or more persons or of a community to whom the encumbered estate does not belong. xxx xxx xxx

ART. 594. The owner of an estate may burden it with such easements as he may deem fit, and in such manner and form as he may consider desirable, provided he does not violate the law or public order. There is nothing in the constitution of this easement in violation of law or public order, except perhaps that the right to open roads and charge passage fees therefor i the State's by right of sovereignty and may not be taken over by a private individual without the requisite permit. This, however, would affect the right of the plaintiff to charge tolls, but not that of the defendant or of any other person to make use of the easement. As may be seen from the language of article 594, in cases of voluntary easement, the owner is given ample liberty to establish them: "as he may deem fit, and in such manner and form as he may consider desirable." The plaintiff "considered it desirable" to open this road to the public in general, without imposing any condition save the payment of a fifteen-centavo toll by motor vehicles, and it may not now go back on this and deny the existence of an easement. Voluntary easements under article 594 are not contractual in nature; they constitute the act of the owner. If he exacts any condition, like the payment of a certain indemnity for the use of the easement, any person who is willing to pay it may make use of the easement. If the contention be made that a contract is necessary, it may be stated that a contract exits from the time all those who desire to make use of the easement are disposed to pay the required indemnity.

The plaintiff contends that the easement of way is intermittent in nature and can only be acquired by virtue of a title under article 539. The defendant, however, does not lay claim to it by prescription. The title in this case consists in the fact that the plaintiff has offered the use of this road to the general public upon payment of a certain sum as passage fee in case of motor vehicles. The cases of Roman Catholic Archbishop of Manila vs. Roxas (22 Phil., 450), and Cuaycong vs. Benedicto (37 Phil., 781), are not controlling, as there the attempt was to establish that the right to an easement of way had been acquired by prescription. Here defendant's contention is, that while the road in question remains open to the public, he has a right to its use upon paying the passage fees required by the plaintiff. Indeed the latter may close it at its pleasure, as no period has been fixed when the easement was voluntarily constituted, but while the road is thrown open, the plaintiff may not capriciously exclude the defendant from its use. Furthermore, plaintiff's evidence discloses the existence of a forcible right of way in favor of the owner and occupants of the Hacienda "Sagay" under the Civil Code, article 564, because, according to said evidence, those living in Hacienda "Sagay" have no access to the provincial road except thru the road in question. Santiago Plagata, principal witness of the plaintiff, testified thus: Emerging from the provincial road, the defendant has necessarily to pass through this private road where the gate of which I am the keeper is situated, and then he gets to the Central. (S. t., p. 5.) Q. To go to the Hacienda "Sagay," is there any need to cross the "mill site" of the Central? A. Yes, sir. Q. And the property of the Central is passed in going to the Hacienda "Sagay"? A. Yes, sir. Q. Is there any other road? A. I am not sure whether there is another road. Q. For how long have you been a watchman there? A. Nine years to date. Q. And during that period of nine years, can you not state if there is any road which gives access to the Hacienda "Sagay"? Or the Central has necessarily to be passed? A. I cannot say because I do not go to those places. COURT: Q. But all the others, except the defendant, who go to the Hacienda "Sagay" necessarily pass thru the Central? A. They pass thru that road of the Central. (S. t., pp. 16, 17.) The evidence for the defendant confirms this: Q. To go there, thru what road did you have to pass? A. Thru the road of the Central. Q. And by this road of the Central you mean the Central "North Negros Sugar Co., Inc."? A. Yes, sir. Q. By this road of the Central which you mentioned, you mean the road where there is a gate, beginning from the Central until the provincial road, where the gate is for the purpose of preventing passage? A. Yes, sir, the very one.

Q. And because of that gate, the Central collects certain toll? A. Yes, sir. (S. t., pp. 20, 21.) III Having been devoted by the plaintiff to the use of the public in general, upon paying the passage fees required in the case of motor vehicles, the road in question is charged with a public interest, and while so devoted, the plaintiff may not establish discriminatory exceptions against any private person. When private property is affected with a public interest, it ceases to be juris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by a public interest. (Lord Chief Justice Hale in his treatise "De Portibus Maris, quoted with approval in Munn vs. Illinois, 94 U. S., 113 [1876], and in Nebbia vs. New York, 291 U. S., 502 [1934].) The above language was used in the seventeenth century, when exceptions to the individualistic regime of ownership were scarcely recognized, and when the ideas on its social function may be said to be in their infancy. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control. (Munn vs. Illinois, 94 U. S., 113; 24 Law. ed., 77.) Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; nor government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate in the common interest. . . . The court has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. (Nebbia vs. New York, 291 U. S., 502, 521, 525; 78 Law. ed., 940, 948.) Whenever any business or enterprise becomes so closely and intimately related to the public, or to any substantial part of a community, as to make the welfare of the public, or a substantial part thereof, dependent upon the proper conduct of such business, it becomes the subject for the exercise of the regulatory power of the state. (Clarksburg Light & Heat Co. vs. Public Service Commission, P. U. R. 1920A, 639; 84 W. Va., 638; 100 S. E., 551.) . . . If the service is dedicated to the public or some portion thereof, or to persons within a given area, then any member of the public or of the given class, or any person within the given area, may demand such service without discrimination, and the public, or so much of it as has occasion to be served, is entitled to the service of the utility as a matter of right, and not of grace. . . . A corporation becomes a public service corporation, and therefore subject to regulation as a public utility, only when and to the extent that the business of such corporation becomes devoted to a public use. . . . (Stoehr vs. Natatorium Co. 200 Pac. [Idaho], 132, quoted in 18 A. L. R., 766.)

Tested by the rule laid down in Munn vs. Illinois, it may be conceded that the state has the power to make reasonable regulation of the charges for services rendered by the stockyards company. Its stock yards are situated in one of the gateways of commerce, and so located that they furnish important facilities to all seeking transportation of cattle. While not a common carrier, nor engaged in any distinctively public employment, it is doing a work in which the public has an interest, and therefore must be considered as subject to government regulation. (Cotting vs. Godard, 183 U.S., 79; 46 Law. ed., 92.) Business which, though not public at their inception, may be fairly said to have risen to be such, and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner, by devoting his business to the public use, in effect, grants the public an interest in that use, and subjects himself to public regulation to the extent of that interest, although the property continues to belong to its private owner, and to be entitled to protection accordingly. (Munn vs. Illinois, supra; Spring Valley Waterworks vs. Schottler, 110 U. S., 347; 28 L. ed., 173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117 N. Y., 1, 27; 5 L. R. A., 559; 15 Am. St. Rep., 460; 22 N. E., 670; s. c. 143 U. S., 517; 36 L. ed., 247; 4 Inters. Com. Rep., 45; 12 Sup. Ct. Rep., 468; Brass vs. North Dakota, 153 U. S., 391; 38 L. ed., 757; 4 Inters. Com. Rep., 670; 14 Sup. Ct. Rep., 857; Noble State Bank vs. Haskell, 219 U. S., 104; 55 L. ed., 112; 32 L. R. A. [N. S.], 1062; 31 Sup. Ct. Rep., 186; Ann. Cas., 1912A, 487; German Alliance Ins. Co. vs. Lewis, 233 U.S., 389; 58 L. ed., 1011; L. R. A. 1915C, 1189; 34 Sup. Ct. Rep., 612; VanDyke vs. Geary, 244 U. S., 39, 47; 61 L. ed., 973, 981; 37 Sup. Ct. Rep., 483, Block vs. Hirsh, 256 U. S., 135; 65 L. ed., 865; 16 A. L. R., 165; 41 Sup. Ct. Rep., 458.) Wolff Packing Co. vs. Court of Industrial Relations, 262 U. S. 522; 27 A. L. R., 1280, 1286.) Under the facts of the instant case, the road in question is of the nature of the so-called "turnpike road" or "toll-road." The following authorities are, therefore, in point: ""Toll" is the price of the privilege to travel over that particular highway, and it is a quid pro quo. It rests on the principle that he who, receives the toll does or has done something as an equivalent to him who pays it. Every traveler has the right to use the turnpike as any other highway, but he must pay the toll. (City of St. Louis vs. Creen, 7 Mo. App., 468, 476.) A toll road is a public highway, differing from the ordinary public highways chiefly in this: that the cost of its construction in the first instance is borne by individuals, or by a corporation, having authority from the state to build it, and, further, in the right of the public to use the road after completion, subject only to the payment of toll. (Virginia Caon Toll Road Co. vs. People, 45 Pac., 396, 399; 22 Colo., 429; 37 L. R. A., 711.) Toll roads are in a limited sense public roads, and are highways for travel, but we do not regard them as public roads in a just sense, since there is in them a private proprietary right. . . . The private right which turnpike companies possess in their roads deprives these ways in many essential particulars of the character of public roads. It seems to us that, strictly speaking, toll roads owned by private corporation, constructed and maintained for the purpose of private gain, are not public roads, although the people have a right to freely travel them upon the payment of the toll prescribed by law. They are, of course, public, in a limited sense, but not in such a sense as are the public ways under full control of the state, for public ways, in the strict sense, are completely under legislative control. (Elliott, Roads & S., p. 5.) (Board of Shelby County Com'rs vs. Castetter, 33 N. E., 986, 987; 7 Ind. App., 309.) It has been suggested during the consideration of the case at bar that the only transportation companies with motor vehicles who can have an interest in passing over the said road are those which carry laborers of the central and passengers who transact business with the plaintiff, and not all public service

motor vehicles with certificates of public convenience, and that the only persons who may have an interest in passing over the said road are the laborers of the plaintiff and persons who do business with it and the occupants of the 21 houses situated in the Hacienda "Sagay," and not everyone for personal convenience. But even if this were true, the plaintiff having subjected the road in question to public use, conditioned only upon the payment of a fifteen-centavo passage fees by motor vehicles, such circumstance would not affect the case at all, because what stamps a public character on a private property, like the road in question, is not the number of persons who may have an interest in its use, but the fact that all those who may desire to use it may do so upon payment of the required indemnity. . . . The public or private character of the enterprise does not depend, however, upon the number of persons by whom it is used, but upon whether or not it is open to the use and service of all members of the public who may require it, to the extent of its capacity; and the fact that only a limited number of persons may have occasion to use it does not make of it a private undertaking if the public generally has a right to such use. . . . (51 C. J., sec. 2, p. 5.) The test is, not simply how many do actually use them, but how many may have a free and unrestricted right in common to use them. If it is free and common to all citizens, then no matter whether it is or is not of great length, for whether it leads to or from a city, village or hamlet, or whether it is much or little used, it is a "public road." (Heninger vs. Peery, 47 S. E., 1013, 1014; 102 Va., 896, quoting Elliott, Roads & S., secs. 11, 192.) The circumstance that the road in question does not properly fall within the definition of a public utility provided in Act No. 3108, does not divest it to this character: . . . Whether or not a given business, industry, or service is a public utility does not depend upon legislative definition, but upon the nature of the business or service rendered, and an attempt to declare a company or enterprise to be a public utility, where it is inherently not such, is, by virtue of the guaranties of the federal constitution, void wherever it interferes with private rights of property or contract. So a legislature cannot by mere fiat or regulatory order convert a private business or enterprise into a public utility, and the question whether or not a particular company or service is a public utility is a judicial one, and must be determined as such by a court of competent jurisdiction; . . . . (51 C. J., sec. 3, p. 5.) The road in question being a public utility, or, to be more exact, a private property affected with a public interest, is not lawful to make arbitrary exceptions with respect to its use and enjoyment. Duty to Serve Without Discrimination. A public utility is obligated by the nature of its business to furnish its service or commodity to the general public, or that part of the public which it has undertaken to serve, without arbitrary discrimination, and it must, to the extent of its capacity, serve all who apply, on equal terms and without distinction, so far as they are in the same class and similarly situated. Accordingly, a utility must act toward all members of the public impartially, and treat all alike; and it cannot arbitrarily select the persons for whom it will perform its service or furnish its commodity, nor refuse to one a favor or privilege it has extended to another, since the term "public utility" precludes the idea of service which is private in its nature and is not to be obtained by the public. Such duties arise from the public nature of a utility, and statutes providing affirmatively therefor are merely declaratory of the common law. (51 C. J., sec. 16, p. 7.) The circumstance that the plaintiff is not the holder of a franchise or certificate of public convenience, or that it is a company devoted principally to the manufacturer of sugar and not to the business of public service

or that the state has not as yet assumed control or jurisdiction over the operation of the road in question by the plaintiff, does not preclude the idea that the said road is a public utility. The touchstone of public interest in any business, its practices and charges, clearly is not the enjoyment of any franchise from the state. (Munn vs. Illinois [94 U. S., 113; 24 L. ed., 77, supra.) (Nebbia vs. New York, supra.) The fact that a corporation may not have been given power to engage in the business of a public utility is not conclusive that it is not in fact acting as a public utility and to be treated as such. (51 C. J., p. 5.) The question whether or not it is such does not necessarily depend upon whether it has submitted or refused submit to the regulatory jurisdiction of the state, nor upon whether or not the state has as yet assumed control and jurisdiction, or has failed or refused so to do. (51 C. J., p. 6.) The fact that a corporation does other business in addition to rendering a public service does not prevent it from being a public utility, and subject to regulation as such, as to its public business. (51 C. J., p. 6.) The term "public utility" sometimes is used to mean the physical property or plant being used in the service of the public. (51 C. J., p. 6.) There are . . . decisions in which the incidental service has been held to public regulation and control. (Re Commonwealth Min. & Mill. Co. [1915; Ariz.], P. U. R., 1915B, 536; Nevada, C. & O. Teleg. & Teleph. Co. vs. Red River Lumber Co. [1920; Cal.], P. U. R., 1920E, 625; Sandpoint Water & Light Co. vs. Humberd Lumber Co. [1918; Idaho], P. U. R., 1918B, 535; Public Service Commission vs. Valley Mercantile Co. [1921; Mont.], P. U. R., 1921D, 803; Public Service Commission vs. J. J. Rogers Co. [1918], 184 App. Div., 705; P. U. R., 1919A, 876; 172 N. Y. Supp., 498; Wingrove vs. Public Service Commission [1914], 74 W. Va., 190; L. R. A. 1918A, 210; 81 S. E., 734; Chambers vs. Spruce Lighting Co. [1918], 81 W. Va., 714; 95 S. E. 192. See also Hoff vs. Montgomery [1916; Cal.], P. U. R., 1916D, 880; Re Producers Warehouse [1919; Cal.], P. U. R., 1920A, 919; Ticer vs. Phillips [1920; Cal.], P. U. R., 1920E, 582; Re Ontario Invest. Co. [1921; Cal.], P. U. R., 1922A, 181; Bassett vs. Francestown Water Co. [1916; N. H.], P. U. R., 1916B, 815; Re Northern New York Power Co. [1915; N. Y., 2d Dist.], P. U. R., 1915B, 70.) (Annotation in 18 A. L. R., 766, 767.) The point is made that, there being no contract between the plaintiff and the public interested in the use of the road in question it should be understood that such use has been by the mere tolerance of the plaintiff, and that said property has not been constituted into a public utility. The contention is devoid of merit. When private property is devoted to public use in the business of a public utility, certain reciprocal rights and duties are raised by implication of law between the utility and the public it undertakes to serve, and no contract between them is necessary to give rise thereto. . . . (51 C. J., sec. 12 p. 6.) Wherefore the judgment appealed from is affirmed, with costs to the plaintiff. Abad Santos, J., concurs. Inseparability of easement G.R. No. L-37409 May 23, 1988

NICOLAS VALISNO, vs. FELIPE ADRIANO, defendant-appellee. Honorio Valisno Garcia I for plaintiff-appelant. Felipe K Medina for defendant-appellee. GRIO-AQUINO, J.:

plaintiff-appellant,

This case was certified to this Court by the Court of Appeals in a resolution dated August 10, 1973, the sole issue being a question of law and beyond its jurisdiction. to decide. Admitted by the parties in their pleading and established during the trial on the merits are the following material facts: On June 20, 1960, 'the plaintiff-appellant file against the defendant-appellee an action for damages docketed as Civil Case No. 3472 in the Court of First Instance of Nueva Ecija. The complaint alleged that the plaintiff is the absolute owner and actual possessor of a 557,949-square-meter parcel of land in La Fuente, Santa Rosa, Nueva Ecija, and more particularly described in his Transfer Certificate of Title No. NT-16281. The plaintiffappellant Valisno bought the land from the defendant-appellees sister, Honorata Adriano Francisco, on June 6,1959. (Deed of Absolute Sale, Exh. "A".) The land which is planted with watermelon, peanuts, corn, tobacco, and other vegetables adjoins that of the appellee Felipe Adriano on the bank of the Pampanga River. Both parcels of land had been inherited by Honorata Adriano Francisco and her brother, Felipe Adriano, from their father, Eladio Adriano. At the time of the sale of the land to Valisno, the land was irrigated by water from the Pampanga River through a canal about seventy (70) meters long, traversing the appellee's land. On December 16, 1959, the appellee levelled a portion of the irrigation canal so that the appellant was deprived of the irrigation water and prevented from cultivating his 57-hectare land. The appellant filed in the Bureau of Public Works and Communications a complaint for deprivation of water rights. A decision was rendered on March 22, 1960 ordering Adriano to reconstruct the irrigation canal, "otherwise judicial action shall be taken against him under the provisions of Section 47 of Act 2152 (the Irrigation Act), as amended." Instead of restoring the irrigation canal, the appellee asked for a reinvestigation of the case by the Bureau of Public Works and Communications. A reinvestigation was granted. In the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expense because his need for water to irrigate his watermelon fields was urgent. On June 20, 1960, he filed a complaint for damages in the Court of First Instance (now Regional Trial Court) of Nueva Ecija (Civil Case No. 3472) claiming that he suffered damages amounting to P8,000 when he failed to plant his fields that year (1960) for lack of irrigation water, P800 to reconstruct the canal on defendant Adriano's land, and P1,500 for attorney's fees and the costs of suit. On October 25, 1961, the Secretary of Public Works and Communications reversed the Bureau's decision by issuing a final resolution dismissing Valisno's complaint. The Secretary held that Eladio Adriano's water rights which had been granted in 1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation canal

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

The existence of the irrigation canal on defendant's land for the passage of water from the Pampanga River to Honorata's land prior to and at the time of the sale of Honorata's land to the plaintiff was equivalent to a title for the vendee of the land to continue using it as provided in Article 624 of the Civil Code: Article 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both shall be considered, should either of them be alienated, as a title in order that he easement may continue actively and passively, unless at the time, theownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common on by two or more persons (Civil Code) This provision was lifted from Article 122 of the Spanish Law of Waters which provided: Article 122. Whenever a tract of irrigated land which previously received its waters from a single point is divided through inheritance, sale or by virtue of some other title, between two or more owners, the owners of the higher estates are under obligation to give free passage to the water as an easement of conduit for the irrigation of the lower estates, and without right to any compensation therefore unless otherwise stipulated in the deed of conveyance. (Art. 122, Spanish Law of Waters of August 3, 1866.) No enlightened concept of ownership can shut out the Idea of restrictions thereon, such as easements. Absolute and unlimited dominion is unthinkable, inasmuch as the proper enjoyment of property requires mutual service and forbearance among adjoining estates (Amor vs. Florentino, 74 Phil. 403). As indicated in the decision dated March 22, 1960 of the Bureau of Works "the principal issue involved in this case falls under the subject of servitude of waters which are governed by Article 648 of the new Civil Code and the suppletory laws mentioned in the cases of Lunod vs. Meneses 11 Phil. 128) and Osmena vs. Camara (C.A. 380 62773) which are the irrigation law and the Spanish Law of Waters of August 3, 1866, specifically Article 122 thereof. The deed of sale in favor of Valisno included the "conveyance and transfer of the water rights and improvements" appurtenant to Honorata Adriano's property. By the terms of the Deed of Absolute Sale, the vendor Honorata Adriano Francisco sold, ceded, conveyed and transferred to Dr. Nicolas Valisno all "rights, title, interest and participations over the parcel of land above- described, together with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge 500-1500 GPM, with Serial No. 5415812 and one (1) set of suction pipe and discharge of pipe with elbow, nipples, flanges and footvalves," and the water rights and such other improvements appertaining to the property subject of this sale. According to the appellant, the water right was the primary consideration for his purchase of Honorata's property, for without it the property would be unproductive. Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant to a parcel of land, pass with the conveyance of the land, although not specifically mentioned in the conveyance. The purchaser's easement of necessity in a water ditch running across the grantor's land cannot be defeated even if the water is supplied by a third person (Watson vs. French, 112 Me 371 19 C.J. 868-897). The fact that an easement by grant may also have qualified as an easement of necessity does detract from its permanency as property right, which survives the determination of the necessity (Benedicto vs. CA, 25 SCRA 145).<re||an1w>

As an easement of waters in favor of the appellant has been established, he is entitled to enjoy it free from obstruction, disturbance or wrongful interference (19 CJ 984), such as the appellee's act of levelling the irrigation canal to deprive him of the use of water from the Pampanga River. WHEREFORE, the appealed decision is set aside, and a new one is entered ordering the appellee to grant the appellant continued and unimpeded use of the irrigation ditch traversing his land in order to obtain water from the Pampanga River to irrigate appellant's land. Let the records of this case be remanded to the court a quo for the reception of evidence on the appellant's claim for damages. SO ORDERED. Existence of an apparent sign of easement 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 7501A 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 7501A "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
11

the provisions of Art. 1622 of the Civil Code, since the lot sought to be redeemed, has an area of 612 square meters which is much bigger, area-wise, than the lot owned by petitioner Taedo. However, the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by his apartment building, because the spouses Romeo and Pacita Sim had told him to remove that portion of his building which 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 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 7501-B, ceased upon the subdivision of the land and its subsequent sale to different owners who do

not have the same interest, 16 also appears to be contrary to law. Article 631 of the Civil Code enumerates the grounds for the extinguishment of an easement. Said article provides: Art. 631. Easements are extinguished: (1) By merger in the same person of the ownership of the dominant and servient estates; (2) By non-user for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; (3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; (4) By the expiration of the term or the fulfillment of the 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.

Rights and obligations of the owners of dominant and servient estate G.R. No. L-23810 December 18, 1925 plaintiff-appellee,

CATALINO VALDERRAMA, vs. THE NORTH NEGROS SUGAR CO., INC., defendant-appellant. -------------------------G.R. No. L-23811 December 18, 1925 EMILIO RODRIGUEZ, vs. THE NORTH NEGROS SUGAR CO., INC., defendant-appellant. -------------------------G.R. No. L-23812 December 18, 1925 SANTOS URRA ET AL., vs. THE NORTH NEGROS SUGAR CO., INC., defendant-appellant. Ross, Lawrence & Selph and Antonio T. Camus & Delgado for appellees. VILLAMOR, J.:

plaintiff-appellee,

plaintiffs-appellees, Carrascoso, Jr., for appellant.

As appears from the record, on November 17, 1916, several hacienda owners Manapla, Occidental Negros entered into a contract with Miguel J. Osorio, known as milling contract, wherein Osorio agreed to install in Manapla a sugar central of a minimum capacity of 300 tons, for grinding and milling all the sugar cane to be grown by the hacienda owners, who in turn bound themselves to furnish the central with all the cane they might produce in their estates for thirty years from the execution of the contract, all in accordance with the conditions specified therein. Later on, the defendant North Negros Sugar Co., Inc., acquired the rights and interest of Miguel J. Osorio in the milling contract aforesaid. Two years thereafter, that is to say, on January 29, 1919 Catalino Valderrama (case No. 23810) and on February 1st of the same year, Emilio Rodriguez (case No. 23811) and Santos Urra, Ignacio Benito Huarte, Adolfo Huarte and Pedro Auzmendi (case No. 23812) made with the appellant other milling contracts identical with the first one of November 17, 1916, with some new conditions which are specified in detail in the aforesaid documents Exhibit A and 1. Santos Urra thereafter transferred to Pedro Auzmendi, and the latter to Lorenzo Echarri, their interest in the milling contract executed by them. In view of the fact that the hacienda owners, who were up to that time customers of the central, could not furnish sufficient cane for milling, as required by the capacity of said central, the defendant made other milling contracts with various hacienda owners of Cadiz, Occidental Negros, in order to obtain sufficient cane to sustain the central; and this gave rise to the plaintiffs filing their complaint, alleging that the easement of way, which each of them has established in his respective hacienda, was only for the transportation through each hacienda of the sugar cane of the owner thereof, while the defendant maintains that it had the right to transport to its central upon the railroad passing through the haciendas of the plaintiffs, not only the sugar cane harvested in said haciendas, but also that of the hacienda owners of Cadiz, Occidental Negros.

The plaintiffs, in separate complaints, prayed the Court of First Instance of Occidental Negros to pronounce judgment, holding that the defendant had no right, under the easement or otherwise, to cause its locomotives and wagons to run across the estates of the plaintiffs for the purpose of transporting sugar cane of any agriculturist of Cadiz, Occidental Negros. The defendant answered the amended complaints, admitting some allegations thereof and denying others. And as special defense, it alleged that the plaintiffs respectively granted the defendant, for the period of fifty years from the date of the aforesaid contracts, an easement of way 7 meters wide upon the lands of the plaintiffs for the construction and operation of a railroad for the transportation of sugar cane; that said easement of way was established without any restriction whatsoever, as regards the ownership of the cane to be transported over the said railroad; that said contract was then in full force and effect and had never been annulled or modified. After hearing the three cases, the trial court entered one single judgment for all of them, holding that the defendant had no right to pass through the lands of the plaintiffs described in their amended complaints for the transportation of sugar cane not grown from any of the haciendas of the plaintiffs. From this judgment, the defendant appealed. In view of the similarity of the facts and questions raised in the three complaints, they will herein be considered jointly, as was done by the trail court. The parties agree that the only question herein involved is as to the extent of the easement of way which the plaintiffs have established in their respective haciendas in favor of the defendant, and therefore it is important to know the terms in which such easement of way was established. In the contract executed by the plaintiff Valderrama with the defendant on January 29, 1919, there appears: "6th. That in order to have the obligations herein entered into by Mr. Valderrama duly registered, in regard to the rural estates belonging to him and which are described hereinafter, an easement of way 7 meter wide and for the period of 50 years from the date hereof is hereby created in favor of the 'North Negros Sugar Co., Inc., ' upon his property hereinafter described, at such place as said corporation may see fit for the construction of a railroad." And in the contract of the plaintiff Rodriguez of February 1, 1919, there also appears" "6th. That in order to have the obligations herein entered into by Mr. Emilio Rodriguez duly registered, in regard to the rural estates belongings to him which are herein described, an easement of way 7 meters wide and for the period of 50 years from the date hereof is hereby established by said Mr. Emilio Rodriguez in favor of the 'North Negros Sugar Co., Inc.,' upon his estate aforementioned, at such place as said corporation may see fit for the construction of a railroad." And lastly in the contract of Santos Urra and others of February 1, 1919, there likewise appears: "7th. That in order to have the obligations herein entered into by Santos Urra, Ignacio Benito Huarte, Adolfo Huarte and Pedro Auzmendi duly registered in regard to their estate hereinafter described, an easement of way 7 meters wide and for the period of 50 years from the date hereof is hereby established in favor of the 'North Negros Sugar Co., Inc.,' upon their estate hereinafter described, at such place as said corporation may see fit for the construction of a railroad."lawphi1.net As may be seen, the question raided depends upon the interpretation to be given to the clause of the contracts of the plaintiffs above quoted. The plaintiffs allege that the aforesaid clause is ambiguous, and

under the first exception of section 285 of the Code of Civil Procedure, they have the right to introduce extraneous evidence to explain the true intent of the parties. And it is ambiguous, according to them, because it may applied to the transportation of the cane of the plaintiffs or other producers, which is contrary to the intent of the contracting parties. If the above quoted clause is ambiguous, the plaintiffs have the right to introduce circumstantial evidence to explain the true intent of the parties, but it our opinion said clause is clear enough in its terms to express what the parties have intended to agree upon. Had the clause mentioned only an "easement of way," there might be a doubt as to whether or not the easement of way is for pedestrians, horsemen or carriages. But when the clause says: "easement of way 7 meters wide for the period of 50 years for the construction of the railroad," there can be no doubt about what the contracting parties have agreed upon, to wit, that the plaintiffs have created upon their respective haciendas at a suitable place an easement of way 7 meters wide and for a period of fifty years, in order to enable the defendant to build and maintain a railroad for the transportation of sugar cane to the central. It is clear that the cane of the plaintiffs was to be transported upon the railroad to the central; but to limit the use of the road exclusively to the cane of the plaintiffs and within their respective haciendas would make the contract in question ineffective, except as to the hacienda which is contiguous or nearest to the central. The object of such a milling contract, from which arises the easement in question, is undoubtedly to obtain mutual benefit to the procedures of sugar cane and the corporation putting up the central. It is only by taking this principal idea into account that it may be conceived why the parties had come to an agreement to assume such obligation as are set forth in the milling contract. But the contract could not produce any benefit to the parties, if the explanation given by the plaintiffs would be admitted, as to their intention in creating the aforesaid easement of way upon their respective haciendas, that it was only in favor of their respective haciendas. Such an explanation is inadmissible because it is contrary to the object of the milling contract. It is against the nature of the easement to pretend that it was established in favor of the servient estates, because it is a well settled rule that things serve their owner by reason of ownership and not by reason of easement. This is a case of an easement for the benefit of a corporation, voluntarily created by the plaintiffs upon their respective estates for the construction of a railroad connecting said estates with the central of the defendant. Once the road is constructed, the easement is apparent because it is continuously exposed to view by the rails which reveal the use and enjoyment of said easement. It is evident, as above stated, that the cane of the plaintiffs if to be transported to the central by means of wagons passing upon the railroad; but as the easement was created for the benefit of the corporation, owner of the central, it may cause its wagons to pass upon the road as many times as it may deem fit, according to the needs of the central. If the plaintiffs do not produce sufficient cane to cover the capacity of the central, it would be unjust to impose upon the defendant corporation the burden of maintaining a central, prohibiting it to obtain from another source sufficient cane with which to maintain its business; this is specially true here, because in the milling contract with the plaintiffs, there is nothing to prohibit the defendant from making milling contracts with other planters, and obtain in that way all cane necessary to cover the capacity of the central. Another reason advanced by the appellees in support of their theory is that by transporting upon the road, through the servient estates, the cane of the planters of Cadiz, it would alter the easement, making it more burdensome. It is true that the owner of the dominant estate, in making on the servient estate the necessary works for the use and preservation of the easement, cannot alter it, nor make it more burdensome (art. 543 of the Civil Code); but this does not mean that the defendant cannot transport in the wagons passing upon the railroad other cane that of the plaintiffs. What is prohibited by the legal provision above cited is that the defendant, in excavations or building materials outside of the area of 7 meters, because in the first case, the

easement will be altered, and in the second it would become more burdensome. But nothing of the kind happens when the defendant transport on the railroad, crossing the servient estates, the cane of the planters of Cadiz; the railroad continues to occupy the same area on the servient estates, and the incumbrance resulting from the easement continues to be the same, whether the tractors traverse the line 10, 20 or 30 times a day transporting cane for the central.lawphi1.net Furthermore, the record shows a circumstance indicating that at the time of the execution of the milling contracts above referred to, there was no intention of the part of the contracting parties to limit the use of the railroad to the transportation of cane grown by the plaintiffs in their respective haciendas, and that is because, while the duration of the milling contracts is fixed at thirty years, that of the easement is at fifty. So that if at the end of thirty years the plaintiffs or their successors should no longer desire to furnish canes for milling in the central of the defendant, the latter shall still have the right to the easement for the remaining period, but without transporting on the railroad any cane for the central. An interpretation of the clause in question leading to such a result is untenable. For the foregoing, we are of the opinion that the trial court erred in finding that the appellant could not transport on its railroad passing through the haciendas of the appellees, where it has an easement of way established in its favor, the cane grown in the haciendas of the procedures of Cadiz, Occidental Negros, to be milled in the central of the appellant. And, therefore, the judgment appealed from must be reversed and the appellant absolved, as it is hereby absolved, from the complaint, without special pronouncement as to costs. So ordered. Avancea. C. J., Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur. Modes of extinguishment G.R. No. 90596 April 8, 1991 SOLID MANILA CORPORATION, vs. BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents. Balgos & Perez for petitioner. Alfredo G. de Guzman for private respondent. SARMIENTO, J.:p This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of Court. The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in reversing the trial court which had rendered summary judgment; and (2) whether or not it erred in holding that an easement had been extinguished by merger. We rule for the petitioner on both counts. It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered by Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the vicinity of another parcel, registered in the name of the private respondent corporation under Transfer Certificate of Title No. 128784. petitioner,

The private respondent's title came from a prior owner, and in their deed of sale, the parties thereto reserved as an easement of way: . . .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a private alley for the benefit of neighboring estates, this being duly annotated at the back of the covering transfer Certificate of title per regulations of the Office of the City Engineer of Manila and that the three meterwide portion of said parcel along the Pasig River, with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS, more or less, had actually been expropriated by the City Government, and developed pursuant to the beautification drive of the Metro Manila Governor. (p. 3, Record). 2 As a consequence, an annotation was entered in the private respondent's title, as follows: Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY It is hereby made of record that a construction of private alley has been undertaken on the lot covered by this title from Concepcion Street to the interior of the aforesaid property with the plan and specification duly approved by the City Engineer subject to the following conditions to wit: (1) That the private alley shall be at least three (3) meters in width; (2) That the alley shall not be closed so long as there's a building exists thereon ( sic); (3) That the alley shall be open to the sky; (4) That the owner of the lot on which this private alley has been constituted shall construct the said alley and provide same with concrete canals as per specification of the City Engineer; (5) That the maintenance and upkeep of the alley shall be at the expense of the registered owner; (6) That the alley shall remain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the owner of the lot on which the alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not act ( sic) for any indemnity for the use thereof; and (8) That he shall impose upon the vendee or new owner of the property the conditions abovementioned; other conditions set forth in Doc. No. 4236, Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila. 3 The petitioner claims that ever since, it had (as well as other residents of neighboring estates) made use of the above private alley and maintained and contributed to its upkeep, until sometime in 1983, when, and over its protests, the private respondent constructed steel gates that precluded unhampered use. On December 6, 1984, the petitioner commenced suit for injunction against the private respondent, to have the gates removed and to allow full access to the easement. The court a quo shortly issued ex parte an order directing the private respondent to open the gates. Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the easement referred to has been extinguished by merger in the same person of the dominant and servient estates upon the purchase of the property from its former owner; (2) the petitioner has another adequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the petitioner has not shown that the right-of-way lies at the point least prejudicial to the servient estate. The private respondent's opposition notwithstanding, the trial court issued a "temporary writ of preliminary injunction to continue up to the final termination of the case upon its merits upon the posting of a P5,000.00 bond by the plaintiff. 4 (the petitioner herein). Thereafter, the respondent corporation answered and reiterated its above defenses. On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on the same as follows:

In view of the foregoing, this Court finds it unnecessary to try this case on the merit ( sic) and hereby resolve (sic) to grant the plaintiffs motion for summary judgment. (pp. 15-107, Record). 5 On January 19, 1987, the trial court rendered judgment against the private respondent, the dispositive portion of which states: WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory injunction, that had been issued against the defendant, and for the defendant to pay the plaintiff the costs of this suit. The defendant's counterclaim against the plaintiff is hereby dismissed, for lack of merit. (Summary Judgment, p. 6). 6 The private respondent appealed to the respondent Court of Appeals. Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the cancellation of the annotation in question. The court granted cancellation, for which the petitioner instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered the restoration of the annotation "without prejudice [to] the final outcome of 7 the private respondent's own appeal (subject of this petition). In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the respondent Court of Appeals held that the summary judgment was improper and that the lower court erroneously ignored the defense set up by the private respondent that the easement in question had been extinguished. According to the Appellate Court, an easement is a mere limitation on ownership and that it does not impair the private respondent's title, and that since the private respondent had acquired title to the property, "merger" brought about an extinguishment of the easement. The petitioner submits that the respondent Court of Appeals erred, because the very deed of sale executed between the private respondent and the previous owner of the property "excluded" the alley in question, and that in any event, the intent of the parties was to retain the "alley" as an easement notwithstanding the sale. As already stated at the outset, the Court finds merit in the petition. There is no question that an easement, as described in the deed of sale executed between the private respondent and the seller, had been constituted on the private respondent's property, and has been in fact annotated at the back of Transfer Certificate of Title No. 128784. Specifically, the same charged the private respondent as follows: "(6) That the alley shall remain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the owner of the lot on which the alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] for any indemnity for the use thereof. . ." 8 Its act, therefore, of erecting steel gates across the alley was in defiance of these conditions and a violation of the deed of sale, and, of course, the servitude of way. The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on appeal, the respondent Appellate Court committed an error of judgment and law. It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of the portion on which the right-of-way had been established and that an easement can not impair ownership. The petitioner is not claiming the easement or any part of the property as its own, but rather, it is seeking to have the private respondent respect the easement already existing thereon. The petitioner is moreover agreed that the private

respondent has ownership, but that nonetheless, it has failed to observe the limitation or encumbrance imposed on the same There is therefore no question as to ownership. The question is whether or not an easement exists on the property, and as we indicated, we are convinced that an easement exists. It is true that the sale did include the alley. On this score, the Court rejects the petitioner's contention that the deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the tenement and maintain an independent existence. Thus: Art. 617. Easements are inseparable from the estate to which they actively or passively belong.
9

Servitudes are merely accessories to the tenements of which they form part. 10 Although they are possessed of a separate juridical existence, as mere accessories, they can not, however, be alienated 11 from the tenement, or mortgaged separately. 12 The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no argument to defeat the petitioner's claims, because as an easement precisely, it operates as a limitation on the title of the owner of the servient estate, specifically, his right to use ( jus utendi). As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of the tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a private alley for the benefit of the neighboring estates. . ." 13 and precisely, the former owner, in conveying the property, gave the private owner a discount on account of the easement, thus: WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust the purchase price from THREE MILLION SEVEN HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00) 14 Hence, and so we reiterate, albeit the private respondent did acquire ownership over the property including the disputed alley as a result of the conveyance, it did not acquire the right to close that alley or otherwise put up obstructions thereon and thus prevent the public from using it, because as a servitude, the alley is supposed to be open to the public. The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine merger took place as a consequence of the sale in favor of the private respondent corporation. According to the Civil Code, a merger exists when ownership of the dominant and servient estates is consolidated in the same person. 15 Merger then, as can be seen, requires full ownership of both estates. One thing ought to be noted here, however. The servitude in question is a personal servitude, that is to say, one constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of the general public. Personal servitudes are referred to in the following article of the Civil Code: Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. 16

In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the easement pertains to persons without a dominant estate, 17 in this case, the public at large. Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and the termination of that relation leaves the easement of no use. Unless the owner conveys the property in favor of the public if that is possible no genuine merger can take place that would terminate a personal easement. For this reason, the trial court was not in error in rendering summary judgment, and insofar as the respondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals is in error. Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to the existence of a material fact, and the facts appear undisputed based on the pleadings, depositions, admissions, and affidavits of record. 18 In one case, this Court upheld a decision of the trial court rendered by summary judgment on a claim for money to which the defendant interposed the defense of payment but which failed to produce receipts. 19 We held that under the circumstances, the defense was not genuine but rather, sham, and which justified a summary judgment. In another case, we rejected the claim of acquisitive prescription over registered property and found it likewise to be sham, and sustained consequently, a summary judgment rendered because the title challenged was covered by a Torrens Certificate and under the law, Torrens titles are imprescriptible. 20 We also denied reconveyance in one case and approved a summary judgment rendered thereon, on the ground that from the records, the plaintiffs were clearly guilty of laches having failed to act until after twentyseven years. 21 We likewise allowed summary judgment and rejected contentions of economic hardship as an excuse for avoiding payment under a contract for the reason that the contract imposed liability under any and all conditions. 22 In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one, because as we said, merger is not possible, and secondly, the sale unequivocally preserved the existing easement. In other words, the answer does not, in reality, tender any genuine issue on a material fact and can not militate against the petitioner's clear cause of action. As this Court has held, summary judgments are meant to rid a proceeding of the ritual of a trial where, from existing records, 23 the facts have been established, and trial would be futile. What indeed, argues against the posturing of the private respondent and consequently, the challenged holding of the respondent Court of Appeals as well is the fact that the Court of Appeals itself had rendered judgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporation v. Ysrael, in which it nullified the cancellation of the easement annotated at the back of the private respondent's certificate of title ordered by Judge Ysrael in LRC Case No. 273. As the petitioner now in fact insists, the Court of Appeals' judgment, which was affirmed by this Court in its Resolution dated December 14, 1988, in G.R. No. 83540, is at least, the law of the case between the parties, as "law of the case" is known in law, e.g.: xxx xxx xxx Law of the case has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same

parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330) (Emphasis supplied). It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.) In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). (Emphasis supplied.) Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87). (Emphasis supplied.) 24 CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of the parties regarding the easement, subject of the controversy in this case, although as a petition for "cancellation of annotation" it may have, at a glance, suggested a different cause of action. And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as the law of the case, after all, it was the one that initiated the cancellation proceedings with the Regional Trial Court in LRC No. 273 that precipitated that appeal. In the second place, the proceedings for cancellation of annotation was in fact meant to preempt the injunction decreed by the lower court in this case. Plainly and simply, the private respondent is guilty of forum-shopping, as we have described the term: xxx xxx xxx There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending, as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. This is specially so, as in this case, where the court in which the second suit was brought, has no jurisdiction. 25 to which contempt is a penalty.
26

As it happened, in its effort to shop for a friendly forum, the private respondent found an unfriendly court and it can not be made to profit from its act of malpractice by permitting it to downgrade its finality and deny its applicability as the law of the case.

As a personal servitude, the right-of-way in question was established by the will of the owner. In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo, 27 this Court, speaking through Justice Claro Recto, declared that a personal servitude (also a right of way in that case) is established by the mere "act" 28 of the landowner, and is not "contractual in the nature," 29 and a third party (as the petitioner herein is a third party) has the personality to claim its benefits. In his separate opinion, however, Justice Jose Laurel maintained that a personal or voluntary servitude does require a contract and that "[t]he act of the plaintiff in opening the private way here involved did not constitute an offer . . . " 30 and "[t]here being no offer, there could be no acceptance; hence no contract." 31 The Court sees no need to relive the animated exchanges between two legal titans (they would contend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps owe their erudition and who, because of the paths they have taken, have shaped history itself; after all, and coming back to the case at bar, it is not disputed that an easement has been constituted, whereas it was disputed in North Negros' case. Rather, the question is whether it is still existing or whether it has been extinguished. As we held, our findings is that it is in existence and as a consequence, the private respondent can not bar the public, by erecting an obstruction on the alley, from its use. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel are hereby required to SHOW CAUSE why they should not be punished for contempt of court, and also administratively dealt with in the case of counsel, for forum shopping. IT IS SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur. Legal easements Easement of right of way, requisites [G.R. NO. 130845. November 27, 2000] BRYAN U. VILLANUEVA, petitioner, vs. HON. TIRSO D.C. VELASCO in his capacity as Presiding Judge of the Regional Trial Court of Quezon City, Branch 88, JULIO N. SEBASTIAN and SHIRLEY LORILLA, respondents. DECISION QUISUMBING, J.: This petition for certiorari assails (1) the decision i[1] dated December 27, 1996 of the Court of Appeals in CAG.R. SP No. 39166, dismissing petitioners petition for review under Rule 65 with prayer for the issuance of a cease and desist order and/or temporary restraining order, and (2) the resolution ii[2]dated August 14, 1997 denying the subsequent motion for reconsideration. Petitioner Bryan Villanueva is the registered owner of the parcel of land covered by Transfer Certificate of Title No. 127862 of the Register of Deeds of Quezon City. He bought it from Pacific Banking Corporation, the

mortgagee of said property. The bank had acquired it from the spouses Maximo and Justina Gabriel at a public auction on March 19, 1983. When petitioner bought the parcel of land there was a small house on its southeastern portion. It occupied one meter of the two-meter wide easement of right of way the Gabriel spouses granted to the Espinolas, predecessors-in-interest of private respondents, in a Contract of Easement of Right of Way. The pertinent portion of the contract dated November 28, 1979, states: . . . in order to have an access to and from their aforementioned land where their houses are constructed and to have an outlet to Tandang Sora Ave. which is the nearest public road and the least burdensome to the servient estate and to third persons, it would be necessary for them to pass through spouses MAXIMO GABRIEL and JUSTINA CAPUNOs land and for this purpose, a path or passageway of not less than two (2) meters wide of said spouses property is necessary for the use of ROMEO, RODOLFO, NENITA and AURORA ESPINOLA and for all their needs in entering their property. xxx WHEREFORE, in view of the fact that the property of the ESPINOLA had been bought by them from MAXIMO CAPUNO, father of MAXIMO GABRIEL, spouses MAXIMO GABRIEL and JUSTINA CAPUNO hereby agree and permit RODOLFO, ROMEO, NENITA and AURORA ESPINOLA and their families to have a permanent easement of right of way over the aforementioned property of said spouses limited to not more than two meters wide, throughout the whole length of the southeast side of said property and as specifically indicated in the attached plan which is made an integral part of this Contract as Annex A; This Agreement shall be binding between the parties and upon their heirs, successors, assigns, without prejudice in cases of sale of subject property that will warrant the circumstances. iii[3] Unknown to petitioner, even before he bought the land, the Gabriels had constructed the aforementioned small house that encroached upon the two-meter easement. Petitioner was also unaware that private respondents, Julio Sebastian and Shirley Lorilla, had filed on May 8, 1991, Civil Case No. Q-91-8703, for easement, damages and with prayer for a writ of preliminary injunction and/or restraining order against the spouses Gabriel.iv[4] As successors-in-interest, Sebastian and Lorilla wanted to enforce the contract of easement. On May 15, 1991, the trial court issued a temporary restraining order. On August 13, 1991, it issued a writ of preliminary mandatory injunction ordering the Gabriels to provide the right of way and to demolish the small house encroaching on the easement. On August 15, 1991, the Gabriels filed a motion for reconsideration which was also denied. Thus, they filed a petition for certiorari before the Court of Appeals. On March 26, 1992, the Eighth Division of the Court of Appeals dismissed the petition and upheld the RTCs issuances. The decision became final and executory on July 31, 1992. v[5] On January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City, Branch 88, issued an Alias Writ of Demolition. On June 20, 1995, the sheriff tried to demolish the small house pursuant to the writ. Petitioner filed a Third Party Claim with Prayer to Quash Alias Writ of Demolition. He maintains that the writ of demolition could not apply to his property since he was not a party to the civil case. His Third Party Claim with prayer to quash the writ of demolition was denied for lack of merit on August 16, 1995. vi[6] The motion for reconsideration as well as the Supplemental Motion for Reconsideration dated September 12, 1995 were denied on October 19, 1995.vii[7]

Petitioner, thereafter, filed a petition for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 39166, asserting that the existence of the easement of right of way was not annotated in his title and that he was not a party to Civil Case No. Q-91-8703, hence the contract of easement executed by the Gabriels in favor of the Espinolas could not be enforced against him. The Court of Appeals dismissed the petition for lack of merit and denied the reconsideration, disposing thus: WHEREFORE, the instant petition is hereby dismissed by this court for lack of merit. No costs considering the failure of private respondents to file their comment, despite notice. viii[8] Hence, this instant petition. Petitioner now avers that the appellate court erred in declaring, (1) THAT FOLLOWING THE ESSENCE OF INHERENCE AND INTRANSMISSIBILITY OF AN EASEMENT, A RIGHT OF WAY CAN EXIST EVEN IF THEY ARE NOT EXPRESSLY STATED OR ANNOTATED ON THE TORRENS TITLE; (2) THAT PETITIONER, AS PROSPECTIVE BUYER, SHOULD HAVE EXERCISED ORDINARY PRUDENCE BY TAKING THE INITIATIVE TO DETERMINE THAT AN EASEMENT HAS BEEN CONSTITUTED ON THE PROPERTY HE INTENDS TO BUY; AND, (3) THAT IN AS MUCH AS THE HEREIN PETITIONER IS NOT A PARTY TO CIVIL CASE NO. Q-91-8703, HE CANNOT BE BOUND BY ANY JUDGMENT OR ORDER RENDERED THEREIN. ix[9] Primarily, the issue is whether the easement on the property binds petitioner. Petitioner argues it could not be enforced against him. First, he says that a right of way cannot exist when it is not expressly stated or annotated on the Torrens title. According to him, even if an easement is inherent and inseparable from the estate to which it actively belongs as provided in Art. 617 of the Civil Code, x[10] the same is extinguished when the servient estate is registered and the easement was not annotated in said title conformably with Section 39 of the Land Registration Law. Second, petitioner points out that the trial court erred when it faulted him for relying solely on the clean title of the property he bought, as it is well-settled that a person dealing with registered land is not required to go beyond what is recorded in the title. He adds that it is private respondents who should have made sure their right of way was safeguarded by having the same annotated on the title with the Register of Deeds. He adds that Section 76 of P.D. No. 1529 xi[11] also requires that when a case is commenced involving any right to registered land under the Land Registration Law (now the Property Registration Decree), any decision on it will only be effectual between or among the parties thereto, unless a notice of lis pendens of such action is filed and registered in the registry office where the land is recorded. There was no such annotation in the title of the disputed land, according to petitioner. Lastly, since he was not a party to Civil Case No. Q-91-8703, petitioner argues that he cannot be bound by the writ of demolition and be forcibly divested of a portion of his land without having his day in court. Private respondents Sebastian and Lorilla, for their part, adopted the disquisition of the appellate court as their Comment and asked for the dismissal of the petition and P100,000.00 in damages. In its decision the appellate court, citing the decision of the lower court, stressed that unlike other types of encumbrance of real property, a servitude like a right of way can exist even if they are not expressly stated or annotated as an encumbrance in a Torrens title because servitudes are inseparable from the estates to which they actively or

passively belong. Moreover, Villanueva was bound by the contract of easement, not only as a voluntary easement but as a legal easement. A legal easement is mandated by law, and continues to exists unless its removal is provided for in a title of conveyance or the sign of the easement is removed before the execution of the conveyance conformably with Article 649 xii[12]in accordance with Article 617xiii[13] of the Civil Code. At the outset, we note that the subject easement (right of way) originally was voluntarily constituted by agreement between the Gabriels and the Espinolas. But as correctly observed by the Court of Appeals, the easement in the instant petition is both (1) an easement by grant or a voluntary easement, and (2) an easement by necessity or a legal easement. A legal easement is one mandated by law, constituted for public use or for private interest, and becomes a continuing property right. xiv[14] As a compulsory easement, it is inseparable from the estate to which it belongs, as provided for in said Article 617 of the Civil Code. The essential requisites for an easement to be compulsory are: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; (4) the right of way claimed is at a point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest. xv[15] The trial court and the Court of Appeals have declared the existence of said easement (right of way). This finding of fact of both courts below is conclusive on this Court, xvi[16] hence we see no need to further review, but only to re-affirm, this finding. The small house occupying one meter of the two-meter wide easement obstructs the entry of private respondents cement mixer and motor vehicle. One meter is insufficient for the needs of private respondents. It is well-settled that the needs of the dominant estate determine the width of the easement. xvii[17] Conformably then, petitioner ought to demolish whatever edifice obstructs the easement in view of the needs of private respondents estate. Petitioners second proposition, that he is not bound by the contract of easement because the same was not annotated in the title and that a notice of lis pendens of the complaint to enforce the easement was not recorded with the Register of Deeds, is obviously unmeritorious. As already explained, it is in the nature of legal easement that the servient estate (of petitioner) is legally bound to provide the dominant estate (of private respondents in this case) ingress from and egress to the public highway. Petitioners last argument that he was not a party to Civil Case No. Q-91-8703 and that he had not been given his day in court, is also without merit. Rule 39, Sec. 47, of the Revised Rules of Court: SEC. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (Emphasis ours). Simply stated, a decision in a case is conclusive and binding upon the parties to said case and those who are their successor in interest by title after said case has been commenced or filed in court. xviii[18] In this case, private respondents, Julio Sebastian and Shirley Lorilla, initiated Civil Case No. Q-91-8703 on May 8, 1991, xix [19] against the original owners, the spouses Maximo and Justina Gabriel. Title in the name of petitioner was entered in the Register of Deedsxx[20] on March 24, 1995, after he bought the property from the bank which had acquired it from the Gabriels. Hence, the decision in Civil Case No. Q-91-8703 binds petitioner. For, although not a party to the suit, he is a successor-in-interest by title subsequent to the commencement of the action in court. WHEREFORE, the instant petition is DENIED. The assailed decision and resolution of the Court of Appeals are AFFIRMED. Costs against petitioner. SO ORDERED. Bellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. G.R. No. 75905 October 12, 1987 REMIGIO O. RAMOS, SR., petitioner, vs. GATCHALIAN REALTY, INC., EDUARDO ASPREC, and COURT OF APPEALS, respondents.

GUTIERREZ, JR., J.: In this petition for review on certiorari, the petitioner assails the decision of the Court of Appeals dated August 29, 1986 which affirmed the November 14, 1984 order of the Regional Trial Court, Branch CXI at Pasay City dismissing the petitioner's civil action for a right of way with prayer for preliminary injunction. Petitioner Ramos is the owner of a house and lot containing an area of 901 square meters covered by Transfer Certificate of Title No. 14927 situated at Barrio San Dionisio, Paraaque, Metro Manila. The lot was acquired by the petitioner from Science Rodriguez Lombos Subdivision In the subdivision survey plan of Lot 4133-G, (LRC) PSD-172544, the lot is more particularly described as Lot 4133-G-11 (Exhibits "1" and "1-A "). Two road lots abut petitioner's property namely lot 4133-G-12 with an area of 2,160 square meters clearly appearing as a proposed road in the Lombos subdivision plan and Lot 4135 of the Paraaque Cadastre now known as Pambansa Road but more commonly referred to as Gatchalian Avenue. Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135. Respondent Gatchalian Realty was granted the road right of way and drainage along Lot 4135 to service the Gatchalian and Asprec subdivision, by the respondent Asprecs.

The records of this case disclose that on April 30, 1981, a complaint for an easement of a right of way with preliminary mandatory injunction was filed by Ramos against the private respondents. Among the allegations in the complaint are: ... that he (referring to the petitioner) constructed his house at 27 Gatchalian Avenue (also known as Pambansa Road), Paranaque, and has since resided therein with his family from 1977 up to the present; that during construction of the house, Gatchalian Realty, Inc. built a 7-8, feet high concrete wall right infront of appellant's premises, blocking his entrance/exit to Gatchalian Road, the nearest, most convenient and adequate entrance/exit to the public road. or highway, formerly Sucat Road but now known as Dr. A. Santos Avenue, Paraaque; that this house and lot is only about 100 meters from Sucat, Road passing thru Gatchalian Avenue; that prior to this, appellant and his counsel addressed separate request/demand letters (Exh. A and Annex B) to defendant company to allow him to exercise a right of way on the subject premises; that in September 1977, a meeting/conference was held between appellant and his counsel on one hand and Mr. Roberto Gatchalian and counsel on the other, during which defendant Corporation manifested its conformity to grant appellant the requested right of way upon payment of proper indemnity, with the request that appellant inform defendants Asprec of their aforesaid agreement; that consequently, appellant wrote Mr. Cleto Asprec on September 16, 1977 (Exh. D); that with the construction of the 7-8 feet concrete wall appellant and his family have been constrained to pass through the back portion of their lot bounded by other lots belonging to different owners, which is grassy and cogonal as temporary ingress/egress with great inconvenience and hardship, and this becomes all the more pronounced during the rainy season due to flood and mud (Exhs. B-1, B-1-A, B-2; B-2-A, B-3, B-3-A, B-3-B and B-4); and, lastly, that the aforesaid concrete wall is dangerously leaning towards appellant's premises posing great danger or hazard. (Court of Appeals Decision, p. 3, Rollo, p. 39) On May 20, 1981, the respondent corporation filed a motion to dismiss on grounds of lack of cause of action and bar by prior judgment alleging that the complaint was merely a reproduction of that filed on October 26, 1972 in Civil Case No. 5930-P which was dismissed on October 30, 1980 for failure to prosecute within a reasonable length of time. Respondents Asprec later joined the respondent company in its motion to dismiss and adopted the grounds and arguments stated therein. On November 20, 1981, after the petitioner had filed his opposition to the above motions, the lower court issued its order denying the motion to dismiss on the ground that the order dismissing the earlier case was not an adjudication on the merits. On November 26, 1981, the petitioner filed an urgent exparte motion for the issuance of a preliminary mandatory injunction as well as a preliminary prohibitory injunction. On the same day, the lower court set the motion for hearing on December 1, 1981, later reset to December 10, 1981, and ordered that: In the meantime, pending determination of the application on the merits and in order that the reliefs sought therein may not be rendered moot and academic, the defendants and all persons acting upon their orders are hereby temporarily enjoined from building, constructing and/or erecting a wall, fence or any enclosure adjoining or abutting plaintiff's premises and/or from restraining, preventing or prohibiting the plaintiff, his family or persons residing in his premises as well as any person/s who may have any dealing or business with them from using, passing and/or traversing the said Gatchalian Avenue in going to or returning from the plaintiff's premises and in going to or returning from Sucat Road via Gatchalian Avenue, until further orders from this Court. (Order dated November 26,1981, Records, p. 66). On December 1, 1981, Gatchalian Realty filed its answer and averred, among others, that:

xxx xxx xxx Defendant Corporation has never entered into a verbal agreement with plaintiff to grant the latter a road right of way; xxx xxx xxx The so-called Gatchalian Avenue or Palanyag Road is not a public road but a private street established and constructed by the defendant Corporation intended for the sole and exclusive use of its residents and lot buyers of its subdivisions, as well as of the subdivisions owned and operated by the various naked owners of the different portions constituting the entire length and breadth of said street; If plaintiff's property referred to in the complaint is Lot No. 4133-G-11, (LRC) Psd-229001 (sic), then a grant of a right of way to plaintiff is not a legal necessity, because such lot has an eating road right of way, more particularly Lot 4133-G-12, towards Dr. Arcadio Santos Avenue(Sukat Road); xxx xxx xxx The opening of Gatchalian Avenue to the property of plaintiff will unduly cause great prejudice to defendant Corporation as it can no longer effectively regulate the use of the said private road; ... Assuming, though not admitting, that plaintiff may be granted a right of way, still the reasonable compensation for such grant would be some P800,000.00, as such portion of Gatchalian Avenue consists of some 2,000 square meters of prime and valuable property which could readily command a market value of P400.00 per square meter; moreover, plaintiff still has to shoulder his proportionate share of the expenses and upkeep of such street and the real estate taxes imposed thereon. (Answer of Gatchalian Realty, Inc., Records, pp. 8182). On December 2, 1981, respondent Asprec filed their answer which basically contained the same averments as that of the realty company. At the hearing of the petitioner's application for issuance of a writ of preliminary injunction to compel the private respondents to remove the wall constructed right in front of the petitioner's premises barring him access to Gatchalian Avenue, both parties presented oral and documentary evidence to support their respective positions. After the hearing, the lower court issued the following order: Plaintiff is given fifteen (15) days to file a memorandum and the defendant is given another fifteen days from receipt thereof to file a reply, after which the case shall be deemed submitted for resolution. So ordered. (TSN, December 10, 1981, p. 57) After compliance by both parties with the above order, the lower court, on July 9, 1982, rendered a decision the dispositive part of which reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter to grant the former a right of way through Palanyag Road to and from Don Arcadio Santos Avenue and to and from his residence, upon payment by the plaintiff to the defendants Asprecs the sum of P5,000 as indemnity therefor and under the following terms and conditions to wit: (1) the easement created shall be only in favor of the plaintiff, members of his family and person or persons dealing with them; and (2) the opening to

be created through the concrete wall separating plaintiff's residence and Palanyag Road shall only be three (3) meters wide and shall be provided by an iron gate by the plaintiff all at the expense of the plaintiff. Without pronouncement as to costs and damages. (Rollo, p. 30) Thereafter, the respondent company filed a motion to set aside and/or reconsider the lower court's decision for being premature since only the application for the writ of injunction was heard and submitted for resolution and not the entire case. Respondents Asprec, likewise, filed a motion for reconsideration mainly on the ground that the lower court's grant of a right of way through Gatchalian Avenue in petitioner's favor would be in derogation of the "Contract of Easement of Road Right-of-Way and of Drainage" executed between them and Gatchalian Realty. In his opposition to both motions, the petitioner argued that on the basis of the transcript of steno graphic notes taken on December 10, 1981, it was clear that both parties submitted the entire case for resolution inasmuch as the pieces of evidence for the injunction and for the main case were the same and there was nothing left to be presented. Thus, in effect, the petitioner contended that the lower court's decision dated July 9, 1982 was an adjudication on the merits. On July 8, 1983, the lower court under a new judge by virtue of the reorganization of the judiciary, issued an order setting aside and vacating its previous decision dated July 9, 1982 on the ground that the same was "rendered prematurely as the defendants had not presented their evidence on the main evidence." After the petitioner had rested his case, the respondent company filed a motion to dismiss based on the insufficiency of the evidence adduced by the petitioner. An opposition to said motion, was, thereafter, filed by the petitioner. On November 14, 1984, the lower court, acting on the respondent company's motion to dismiss, issued an order with the following tenor: WHEREFORE, finding the motion to dismiss of defendant corporation Gatchalian Realty, Inc. to be impressed with merit, the same is hereby granted. For insufficiency of evidence, plaintiff's complaint is hereby dismissed, without pronouncement as to costs. (Rollo, p. 34) The Court of Appeals on August 29, 1986, found that the petitioner failed to establish the existence of the preconditions in order that he could legally be entitled to an easement of a right of way. It affirmed the lower court's order dated November 14, 1984 in all respects, with costs against the petitioner. Hence, this petition which presents the following assignment of errors: I PUBLIC RESPONDENT ERRED IN AFFIRMING I-IV TOTO THE ORDER OF DISMISSAL OF THE TRIAL COURT IN ALL RESPECTS WITH COSTS AGAINST THE PETITIONER. II PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT PETITIONER HAS NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE LAW AND IN FAILING TO PROVE HIS RIGHT OF WAY THROUGH GATCHALIAN AVENUE OR PALANYAG ROAD AGAINST THE RESPONDENTS HEREIN;

III PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE TRIAL COURT, AND NOT ADOPTING THE DECISION OF THE TRIAL COURT DATED JULY 9,1982 GRANTING TO PETITIONER A RIGHT OF WAY IN THE SUBJECT PREMISES. (Rollo, pp. 14-15) These assigned errors center on the issue of whether or not the petitioner has successfully shown that all the requisites necessary for the grant of an easement of a right of way in his favor are present. An easement or servitude in an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner as defined in Article 613 of the Civil Code. It is established either by law, in which case it is called legal or by the will of the parties, in which event it is a voluntary easement. (See Article 619, Civil Code of the Philippines; City of Manila vs. Entote, 57 SCRA 497, 503). Since there is no agreement between the contending parties in this case granting a right of way by one in favor of the other, the establishment of a voluntary easement between the petitioner and the respondent company and/or the other private respondents is ruled out. What is left to examine is whether or not the petitioner is entitled to a legal or compulsory easement of a right of way. In the case of Bacolod-Murcia Milling Company, Inc. vs. Capitol Subdivision Inc., et al. (17 SCRA 731, 735-6), we held that: ... the Central had to rely strictly on its being entitled to a compulsory servitude of right of way, under the Civil Code, and it could not claim any such servitude without first establishing the pre-conditions for its grant fixed by Articles 649 and 650 of the Civil Code of the Philippines: (1) That it is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1); (2) After payment of proper indemnity (Art. 649, p. 1. end); (3) That the isolation was not due to the Central's own acts (Art. 649, last par.); and (4) That the right of way claimed is "at the point least prejudicial to the servient estate; and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest." (Art. 650). By express provision of law, therefore, a compulsory right of way can not be obtained unless the four requisites enumerated are first shown to exist, and the burden of proof to show their existence was on the Central. (See also Angela Estate, Inc. vs. Court of First Instance of Negros Occidental 24 SCRA 500, 510) On the first requisite, the petitioner contends that since the respondent company constructed the concrete wall blocking his ingress and egress via the Gatchalian Avenue, the "nearest, most convenient and adequate road" to and from a public highway, he has been constrained to use as his "temporary" way the adjoining lots belonging to different persons. Said way is allegedly "bumpy and impassable especially during rainy seasons because of flood waters, mud and tall 'talahib' grasses thereon." Moreover, according to the petitioner, the road right of way which the private respondents referred to as the petitioner's alternative way to Sucat Road is

not an existing road but has remained a proposed road as indicated in the subdivision plan of the Sobrina Rodriguez Lombos Subdivision. The petitioner's position is not impressed with merit. We find no reason to disturb the appellate court's finding of fact that the petitioner failed to prove the non-existence of an adequate outlet to the Sucat Road except through the Gatchalian Avenue. As borne out by the records of the case, there is a road right of way provided by the Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its lots. The fact that said lot is still undeveloped and causes inconvenience to the petitioner when he uses it to reach the public highway does not bring him within the ambit of the legal requisite. We agree with the appellate court's observation that the petitioner should have, first and foremost, demanded from the Sabrina Rodriguez Lombos Subdivision the improvement and maintenance of Lot 4133-G-12 as his road right of way because it was from said subdivision that he acquired his lot and not either from the Gatchalian Realty or the respondents Asprec. To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right of way provided by the petitioner's subdivision for its buyers simply because Gatchalian Avenue allows petitioner a much greater ease in going to and coming from the main thoroughfare is to completely ignore what jurisprudence has consistently maintained through the years regarding an easement of a right of way, that "mere convenience for the dominant estate is not enough to serve as its basis. To justify the imposition of this servitude, there must be a real, not a fictitious or artificial, necessity for it." (See Tolentino, Civil Code of the Philippines, Vol. II, 2nd ed., 1972, p. 371) Considering that the petitioner has failed to prove the existence of the first requisite as aforestated, we find it unnecessary to discuss the rest of the preconditions for a legal or compulsory right of way. Once again, we apply the rule that findings of facts of the Court of Appeals are binding on the Supreme Court and who not be overturned when supported by the evidence on record save in the known exceptions such as gross misappreciation of the evidence or misapprehension of facts. (See Community Savings and Loan Association, Inc. vs. Court of Appeals, et al., G.R. No. 75786 promulgated on August 31, 1987; Regalario vs. Northwest Finance Corporation, 117 SCRA 45; Agton vs. Court of Appeals, 113 SCRA 322). WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack of merit. The questioned decision of the Court of Appeals is AFFIRMED. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur. G.R. No. 80511 January 25, 1991 COSTABELLA CORPORATION, petitioner, vs. COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO, and CESAR T. ESPINA, respondents. Roco, Bunag, Kapunan & Migallos for petitioner. Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.

Zosa & Quijano Law Offices for respondents.

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

petitioner stated that what it built was a breakwater on the foreshore land fronting its property and not a dike as claimed by the private respondents. Moreover, contrary to the private respondents' accusation, the said construction had benefitted the community especially the fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and debris which had formed on the private respondents' beach front on the other hand were but the natural and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the sea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead as defendants the owners of the other properties supposedly traversed by the alleged ancient road right way, indispensable parties without whom no final adjudication of the controversy could be rendered. 7 After trial, the court a quo rendered a decision on March 15, 1984 finding that the private respondents had acquired a vested right over the passageway in controversy based on its long existence and its continued use and enjoyment not only by the private respondents, but also by the community at large. The petitioner in so closing the said passageway, had accordingly violated the private respondents' vested right. Thus, the trial court ordered the petitioner: 1. To open and make available the road in question to the plaintiffs and the general public at all times free of any obstacle thereof, unless the defendant, shall provide another road equally accessible and convenient as the road or passage closed by the defendant; 2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff Perfecto Guangco the sum of TWO HUNDRED PESOS (P200.00) a month beginning September, 1982, representing their respective expenditures they had incurred in other beach resorts after the road was closed, until the passageway claimed by them is opened and made available to them, or if the defendant chooses to provide another road, until such road is made available and conveniently passable to the plaintiffs and the general public; and 3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees, and to pay the costs.
8

Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioning the alleged "vested right" of the private respondents over the subject passageway, and the private respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the petitioner's "dike" is concerned. In its decision, the respondent Appellate Court held as without basis the trial court's finding that the private respondents had acquired a vested right over the passageway in question by virtue of prescription. 9 The appellate court pointed out that an easement of right of way is a discontinuous one which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by prescription. 10 That notwithstanding, the appellate court went on to rule that ". . . in the interest of justice and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is not dependent upon the claims of the parties but a compulsory one that is legally demandable by the owner of the dominant estate from the owner of the servient estate." 11 Thus the appellate court: (1) granted the private respondents the right to an easement of way on the petitioner's property using the passageway in question, unless the petitioner should provide another passageway equally accessible and convenient as the one it closed; (2) remanded the case to the trial court for the determination of the just and proper indemnity to be paid to the petitioner by the private respondents for the said easement; and (3) set aside the trial court's award of actual damages and attorney's fees. 12

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

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

road through an inaccessible slope or precipice, is in fact isolated for all the effects of the easement requested by its owner. On the other hand, an estate which for any reason has necessarily lost its access to a public road during certain periods of the year is in the same condition. . . . There are some who propound the query as to whether the fact that a river flows between the estate and the public road should be considered as having the effect of isolating the estate. . . . If the river may be crossed conveniently at all times without the least danger, it cannot be said that the estate is isolated; in any other case, the answer is in the affirmative." 25 The isolation of the dominant estate is also dependent on the particular need of the dominant owner, and the estate itself need not be totally landlocked. What is important to consider is whether or not a right of way is necessary to fill a reasonable need therefor by the owner. 26 Thus, as Manresa had pointed out, if the passageway consists of an "inaccessible slope or precipice," 27 it is as if there is no passageway, that is, one that can sufficiently fulfill the dominant owner's necessities, although by the existence of that passageway the property can not be truly said that the property is isolated. So also, while an existing right of way may have proved adequate at the start, the dominant owner's need may have changed since then, for which Article 651 of the Code allows adjustments as to width. 28 But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon two criteria: (1) at the point least prejudicial to the servient state; and (2) where the distance to a public highway may be the shortest. According, however, to one commentator, "least prejudice" prevails over "shortest distance." 29 Yet, each case must be weighed according to its individual merits, and judged according to the sound discretion of the court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when there are constuctions or walls which can be avoided by a roundabout way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline." 30 It is based on these settled principles that we have resolved this case. WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSED. Costs against the private respondents. SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur. G.R. No. 112331 May 29, 1996 ANASTACIA QUIMEN, vs. COURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents. petitioner,

BELLOSILLO, J.:p IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice shall be chosen. However, if the two circumstances do not concur in a single tenement, the way where

damage will be least shall be used even if not the shortest route. 1 This is so because least prejudice prevails over shortest distance. This means that the court is not bound to establish what is the shortest distance; a longer way may be adopted to avoid injury to the servient estate, such as when there are constructions or walls which can be avoided by a round about way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline. Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in Pandi, Bulacan. They agreed to subdivide the property equally among themselves, as they did, with the shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road. The share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is bounded on the right by the property of Sotero designated as Lot. No. 14413-B-2. Adjoining Sotero's property on the right are Lots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina and Sulpicio, respectively, but which were later acquired by a certain Catalina Santos. Located directly behind the lots of Anastacia and Sotero is the share of their brother Antonio designated as Lot No. 1448-B-C which the latter divided into two (2) equal parts, now Lots Nos. 1448-B-6-A and 1448-B-6-B, each with an area of 92 square meters. Lot No. 1448-B-6-A is located behind Anastacia's Lot No. 1448-B-1, while Lot No. 1448-B-6-B is behind the property of Sotero, father of respondent Yolanda. In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt Anastacia who was then acting as his administratrix. According to Yolanda, when petitioner offered her the property for sale she was hesitant to buy as it had no access to a public road. But Anastacia prevailed upon her to buy the lot with the assurance that she would give her a right of way on her adjoining property for P200.00 per square meter. Thereafter, Yolanda constructed a house on the lot she bought using as her passageway to the public highway a portion of Anastacia's property. But when Yolanda finally offered to pay for the use of the pathway Anastacia refused to accept the payment. In fact she was thereafter barred by Anastacia from passing through her property. 2 In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6-B, located directly behind the property of her parents who provided her a pathway gratis et amore between their house, extending about nineteen (19) meters from the lot of Yolanda behind the sari sari store of Sotero, and Anastacia's perimeter fence. The store is made of strong materials and occupies the entire frontage of the lot measuring four (4) meters wide and nine meters (9) long. Although the pathway leads to the municipal road it is not adequate for ingress and egress. The municipal road cannot be reached with facility because the store itself obstructs the path so that one has to pass through the back entrance and the facade of the store to reach the road. On 29 December 1987 Yolanda filed an action with the proper court praying for a right of way through Anastacia's property. An ocular inspection upon instruction of the presiding judge was conducted by the branch clerk of court. The report was that the proposed right of way was at the extreme right of Anastacia's property facing the public highway, starting from the back of Sotero's sari-sari store and extending inward by one (1) meter to her property and turning left for about five (5) meters to avoid the store of Sotero in order to reach the municipal road 3 and the way was unobstructed except for an avocado tree standing in the middle. 4 But on 5 September 1991 the trial court dismissed the complaint for lack of cause of action; explaining that the right of way through Sotero's property was a straight path and to allow a detour by cutting through

Anastacia's property would no longer make the path straight. Hence the trial court concluded that it was more practical to extend the existing pathway to the public road by removing that portion of the store blocking the path as that was the shortest route to the public road and the least prejudicial to the parties concerned than passing through Anastacia's property. 5 On appeal by respondent Yolanda, the Court of Appeals reversed the lower court and held that she was entitled to a right of way on petitioner's property and that the way proposed by Yolanda would cause the least damage and detriment to the servient estate. 6 The appellate court however did not award damages to private respondent as petitioner did not act in bad faith in resisting the claim. Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregarding the agreement of the parties; (b) in considering petitioner's property as a servient estate despite the fact that it does not abut or adjoin the property of private respondent; and, (c) in holding that the one-meter by five-meter passage way proposed by private respondent is the least prejudicial and the shortest distance to the public road. Incidentally, petitioner denies having promised private respondent a right of way. She claims that her agreement with private respondent was to provide the latter with a right of way on the other lot of Antonio Quimen under her administration when it was not yet sold to private respondent. Petitioner insists that passing through the property of Yolanda's parents is more accessible to the public road than to make a detour to her property and cut down the avocado tree standing thereon. Petitioner further argues that when Yolanda purchased Lot No. 1448-B-6-B in 1986 the easement of right of way she provided her (petitioner) was ipso jure extinguished as a result of the merger of ownership of the dominant and the servient estates in one person so that there was no longer any compelling reason to provide private respondent with a right of way as there are other surrounding lots suitable for the purpose. Petitioner strongly maintains that the proposed right of way is not the shortest access to the public road because of the detour and that, moreover, she is likely to suffer the most damage as she derives a net income of P600.00 per year from the sale of the fruits of her avocado tree, and considering that an avocado has an average life span of seventy (70) years, she expects a substantial earning from it. 7 But we find no cogent reason to disturb the ruling of respondent appellate court granting a right of way to private respondent through petitioner's property. In fact, as between petitioner Anastacia and respondent Yolanda their agreement has already been rendered moot insofar as it concerns the determination of the principal issue herein presented. The voluntary easement in favor of private respondent, which petitioner now denies but which the court is inclined to believe, has in fact become a legal easement or an easement by necessity constituted by law. 8 As defined, an easement is a real right on another's property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property, for the benefit of another person or tenement. 9 It is jus in re aliena, inseparable, indivisible and perpetual, unless extinguished by causes provided by law. A right of way in particular is a privilege constituted by covenant or granted by law 10 to a person or class of persons to pass over another's property when his tenement is surrounded by realties belonging to others without an adequate outlet to the public highway. The owner of the dominant estate can demand a right of way through the servient estate provided he indemnifies the owner thereof for the beneficial use of his property. 11

The conditions sine quo non for a valid grant of an easement of right of way are: (a) the dominant estate is surrounded by other immovables without an adequate outlet to a public highway; (b) the dominant estate is willing to pay the proper indemnity; (c) the isolation was not due to the acts of the dominant estate; and, (d) the right of way being claimed is at a point least prejudicial to the servient estate. 12 A cursory examination of the complaint of respondent Yolanda for a right of way
13

readily shows that

[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase the same for they are enclosed with permanent improvements like a concrete fence and store and have ( sic) no egress leading to the road but because of the assurance of the defendant that plaintiff will be provided one (1) meter wide and five (5) meters long right of way in the sum of P200.00 per square meter to be taken from Anastacia's lot at the side of a concrete store until plaintiff reach(es) her father's land, plaintiff was induced to buy the aforesaid parcels of land . . . That the aforesaid right of way is the shortest, most convenient and the least onerous leading to the road and being used by the plaintiff's predecessors-in-interest from the very inception . .. The evidence clearly shows that the property of private respondent is hemmed in by the estates of other persons including that of petitioner; that she offered to pay P200.00 per square meter for her right of way as agreed between her and petitioner; that she did not cause the isolation of her property; that the right of way is the least prejudicial to the servient estate. 14 These facts are confirmed in the ocular inspection report of the clerk of court, more so that the trial court itself declared that "[t]he said properties of Antonio Quimen which were purchased by plaintiff Yolanda Quimen Oliveros were totally isolated from the public highway and there appears an imperative need for an easement of right of way to the public highway." 15 Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by private respondent is the least onerous to the parties. We cannot agree. Article 650 of the New Civil Code explicitly states that the easement of right of way shall be established at the point least prejudicial to the servient estate and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing the shortest distance; while on the other hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through. In other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. 16 This is the test. In the trial court, petitioner openly admitted Q. You testified during your direct examination about this plan, kindly go over this and please point to us in what portion of this plan is the house or store of the father of the (plaintiff )? A. This one, sir (witness pointed a certain portion located near the proposed right of way). xxx xxx xxx

Q. Now, you will agree with me . . . that this portion is the front portion of the lot owned by the father of the plaintiff and which was (sic) occupied by a store made up of strong materials? A. It is not true, sir. Q. What materials does (sic) this store of the father of the plaintiff made of? A. Hollow blocks and the side is made of wood, sir. xxx xxx xxx Q. Just before your brother disposed that 1/2 portion of the lot in question, what right of way does ( sic) he use in reaching the public road, kindly point to this sketch that he is ( sic) using in reaching the public road? A. In my property, sir. Q. Now you will agree with me . . . the main reason why your brother is ( sic) using this property is because there was a store located near this portion? A. Yes, and according to the father of Yolanda there is no other way than this, sir. 17 The trial court found that Yolanda's property was situated at the back of her father's property and held that there existed an available space of about nineteen (19) meters long which could conveniently serve as a right of way between the boundary line and the house of Yolanda's father; that the vacant space ended at the left back of Sotero's store which was made of strong materials; that this explained why Yolanda requested a detour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5) meters long to serve as her right of way to the public highway. But notwithstanding its factual observations, the trial court concluded, although erroneously, that Yolanda was not entitled to a right of way on petitioner's property since a detour through it would not make the line straight and would not be the route shortest to the public highway. In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right of way of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of petitioner's property, will cause the least prejudice and/or damage as compared to the suggested passage through the property of Yolanda's father which would mean destroying the sari sari store made of strong materials. Absent any showing that these findings and conclusion are devoid of factual support in the records, or are so glaringly erroneous, this Court accepts and adopts them. As between a right of way that would demolish a store of strong materials to provide egress to a public highway, and another right of way which although longer will only require an avocado tree to be cut down, the second alternative should be preferred. After all, it is not the main function of this Court to analyze or weigh the evidence presented all over again where the petition would necessarily invite calibration of the whole evidence considering primarily the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other, and the probabilities of the situation. 18 In sum, this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the evidence. WHEREFORE, no reversible error having been committed by respondent Court of Appeals, the petition is DENIED and the decision subject of review is AFFIRMED. Costs against petitioner. SO ORDERED.

Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur. G.R. No. 175510 July 28, 2008

SPOUSES VICTOR VALDEZ AND JOCELYN VALDEZ, represented by their Attorney-In-Fact, VIRGILIO VALDEZ, Petitioners, vs. SPOUSES FRANCISCO TABISULA AND CARIDAD TABISULA, Respondents. DECISION CARPIO MORALES, J.: Petitioner-spouses Victor and Jocelyn Valdez purchased via a January 11, 1993 Deed of Absolute Sale 1 (the deed) from respondent-spouses Francisco Tabisula and Caridad Tabisula a 200 square meter (sq.m.) portion (the subject property) of a 380 sq. m. parcel of land located in San Fernando, La Union, which 380 sq.m. parcel of land is more particularly described in the deed as follows: A parcel of land classified as residential lot, bounded on the North by Lot No. 25569, on the East, by Lot No. 247, 251, on the South, by a Creek and on the West, by Lot No. 223-A, declared under Tax Decl. No. 52820, with an area of 380 square meters, more or less, and assessed at P 17100.00 for the current year. It is not registered under Act 496 nor under the Spanish Mortgage Law. (Emphasis and underscoring supplied) The pertinent portions of the deed read: xxxx That for and in consideration of the sum of SEVENTY THOUSAND (P70,000.00) PESOS, Philippine Currencyp [sic] paid to us at our entire satisfaction by spouses VICTOR and JOECELYN [sic] VALDEZ, both of legal age, Filipinos and residents of 148 P. Burgos St., San Fernando, La Union, receipt of which is hereby acknowledged, do hereby SELL, CONVEY and TRANSFER by way of absolute sale unto the said spouses Victor and Joecelyn Valdez, their heirs and assigns, the TWO HUNDRED (200) SQUARE METERS, EASTERN PORTION of the parcel of land above-described, free from all liens and encumbrances. xxxx That now and hereinafter, said VENDEE-SPOUSES VICTOR and JOECELYN [sic] VALDEZ shall be the absolute owners of the said 200 sq. meters, eastern portion and that we shall warrant and forever defend their ownership of the same against the claims of all persons whomsoever; they shall be provided a 2 1/2 meters [sic] wide road right-of-way on the western side of their lot but which is not included in this sale. x x x.x (Emphasis and underscoring supplied) Respondents subsequently built a concrete wall on the western side of the subject property. 2 Believing that that side is the intended road right of way mentioned in the deed, petitioners, through their representative, reported the matter to the barangay for mediation and conciliation. Respondents failed to attend the conferences scheduled by the barangay, however, drawing petitioners to file in April 1999 or more than six

years after the execution of the deed a Complaint for Specific Performance with Damages 3 against respondents before the Regional Trial Court (RTC) of San Fernando City, La Union. In their complaint, petitioners alleged that they purchased the subject property on the strength of respondents assurance of providing them a road right of way. They thus prayed that respondents be ordered to provide the subject property with a 2-meter wide easement and to remove the concrete wall blocking the same. 4 Respondents, in their Answer with Compulsory Counterclaim (for damages and attorneys fees), 5 averred that the 2 -meter easement should be taken from the western portion of the subject property and not from theirs;6 and petitioners and their family are also the owners of two properties adjoining the subject property, which adjoining properties have access to two public roads or highways the bigger one which adjoins P. Burgos St. on the north, and the smaller one which abuts an existing barangay road on the north. 7 Respondents further averred that they could not have agreed to providing petitioners an easement "on the western side of their lot" as there exists a two-storey concrete house on their lot where the supposed easement is to be located, which was erected long before the subject property was sold to petitioners. 8 In support of this claim, respondents submitted a February 20, 2003 letter from the City Engineers Office. 9 Branch 26 of the RTC of San Fernando dismissed petitioners complaint and granted respondents Counterclaim by Decision10 of March 18, 2005, the dispositive portion of which reads: WHEREFORE, and in view of all the foregoing, judgment is hereby rendered finding the defendants as against the plaintiffs and hereby orders the Complaint dismissed for being unmeritorious and plaintiffs are hereby ordered to pay the defendants, the following: 1) P100,000.00 as moral damages; 2) P50,000.00 as exemplary damages; 3) P50,000.00 as attorneys fees; 4) P30,000.00 as expenses of litigation; and 5) To pay the costs. SO ORDERED.11 (Underscoring supplied) On appeal by petitioners, the Court of Appeals, by Decision of May 29, 2006, 12 affirmed that of the trial court, it holding that the deed only conveyed ownership of the subject property to petitioners, and that the reference therein to an easement in favor of petitioners is not a definite grant-basis of a voluntary easement of right of way.13 The appellate court went on to hold that petitioners are neither entitled to a legal or compulsory easement of right of way as they failed to present circumstances justifying their entitlement to it under Article 649 of the Civil Code.14 Petitioners motion for reconsideration 15 having been denied by the Court of Appeals by Resolution of November 15, 2006, they filed the present petition for review on certiorari faulting the trial [sic] court

I. . . . IN RULING THAT THE RIGHT OF WAY IS NOT PART OF THE ABSOLUTE DEED OF SALE DATED JANUARY 11, 1993; II. . . . IN RULING THAT THE PROVISION OF THE ABSOLUTE DEED OF SALE GRANTING A RIGHT OF WAY IS VAGUE AND OBSCURE; III. . . . IN AWARDING MORAL AND EXEMPLARY DAMAGES TO THE RESPONDENTS.16 (Underscoring supplied) An easement or servitude is "a real right constituted on anothers property, corporeal and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person." 17 The statutory basis of this right is Article 613 of the Civil Code which reads: Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. There are two kinds of easements according to source by law or by the will of the owners. So Article 619 of the Civil Code provides: Art. 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements. From the allegations in petitioners complaint, it is clear that what they seek to enforce is an alleged grant in the deed by respondents of an easement reading: "they shall be provided a 2 meters wide road right-ofway on the western side of their lot but which is not included in this sale." Article 1358 of the Civil Code provides that any transaction involving the sale or disposition of real property must be in writing.18 The stipulation harped upon by petitioners that they "shall be provided a 2 meters wide road right-of-way on the western side of their lot but which is not included in this sale" is not a disposition of real property. The proviso that the intended grant of right of way is "not included in this sale" could only mean that the parties would have to enter into a separate and distinct agreement for the purpose. 19 The use of the word "shall," which is imperative or mandatory in its ordinary signification, should be construed as merely permissive where, as in the case at bar, no public benefit or private right requires it to be given an imperative meaning.20 Besides, a document stipulating a voluntary easement must be recorded in the Registry of Property in order not to prejudice third parties. So Articles 708 and 709 of the Civil Code call for, viz: Art. 708. The Registry of Property has for its object the inscription or annotation of acts and contracts relating to the ownership and other rights over immovable property. Art. 709. The titles of ownership, or of other rights over immovable property, which are not duly inscribed or annotated in the Registry of Property shall not prejudice third persons.

Petitioners are neither entitled to a legal or compulsory easement of right of way. For to be entitled to such kind of easement, the preconditions under Articles 649 and 650 of the Civil Code must be established, viz: Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons, and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. xxxx This easement is not compulsory if the isolation of the immovable is due to the proprietors own acts. (Underscoring supplied) Art. 650. The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. (Underscoring supplied) Thus, to be conferred a legal easement of right of way under Article 649, the following requisites must be complied with: (1) the property is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity must be paid; (3) the isolation is not the result of the owner of the dominant estates own acts; (4) the right of way claimed is at the point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, the distance from the dominant estate to a public highway may be the shortest.21 The onus of proving the existence of these prerequisites lies on the owner of the dominant estate,22 herein petitioners. As found, however, by the trial court, which is supported by the Sketch 23 (Exhibit "B"; Exhibit "1") of the location of the lots of the parties and those adjoining them, a common evidence of the parties, petitioners and their family are also the owners of two properties adjoining the subject property which have access to two public roads or highways.24 Since petitioners then have more than adequate passage to two public roads, they have no right to demand the grant by respondents of an easement on the "western side of [respondents] lot." It may not be amiss to note at this juncture that at the time the deed was executed in 1993, the barangay road-Exhibit "1-G," by which petitioners could access Burgos Street-Exhibit "1-F," was not yet in existence; and that the Interior Street-Exhibit "1-H," which petitioners via this case seek access to with a right of way, was still a creek,25 as reflected in the earlier-quoted particular description of respondents parcel of land from which the subject property originally formed part. Respecting the grant of damages in favor of respondents by the trial court which was affirmed by the appellate court, the Court finds the same baseless. 1avvphi1 To merit an award of moral damages, there must be proof of moral suffering, mental anguish, fright and the like. It is not enough that one suffers sleepless nights, mental anguish, serious anxiety as a result of the actuation of the other party.26 Invariably, such actuation must be shown by clear and convincing evidence 27 to have been willfully done in bad faith or with ill-motive.

In respondents case, they predicated their Counterclaim for damages on general allegations of sickness, humiliation and embarrassment, without establishing bad faith, fraud or ill-motive on petitioners part. 28 More importantly, respondents are precluded from filing any counterclaim in light of Article 199 of Rule XXVI of the Rules and Regulations Implementing the Local Government Code of 1991 reading: xxxx ARTICLE 199. Penalty for Refusal or Failure of Any Party or Witness to Appear before the Lupon or Pangkat. Refusal or willful failure of any party or witness to appear before the lupon or pangkat in compliance with summons issued pursuant to this Rule may be punished by the city or municipal court as for indirect contempt of court upon application filed therewith by the lupon chairman, the pangkat chairman, or by any of the contending parties. Such refusal or willful failure to appear shall be reflected in the records of the lupon secretary or in the minutes of the pangkat secretary and shall bar the complainant who fails to appear, from seeking judicial recourse for the same course of action, and the respondent who refuses to appear, from filing any counterclaim arising out of, or necessarily connected with the complaint. x x x x (Emphasis and underscoring supplied) While respondent Caridad Tabisula claimed that she always appeared, when summoned, before the barangay lupon,29 the following Certificate to File Action30 belies the claim. xxxx This is to certify that respondents failed to appear for (2) Mediation Proceeding before our Punong Barangay thus the corresponding complaint may now be filed in court. Issued this 24th day of November 1998 at the Multi Purpose Hall, Barangay 1 City of San Fernando (LU). x x x x (Underscoring supplied) The award for moral damages being thus baseless, that for exemplary damages must too be baseless. As for the award of attorney's fees and expenses of litigation, respondents have not shown their entitlement thereto in accordance with Article 2208 of the Civil Code. WHEREFORE, the May 29, 2006 Decision and November 15, 2006 Resolution of the Court of Appeals are MODIFIED in that the grant of the Counterclaim of respondents, Spouses Francisco Tabisula and Caridad Tabisula, is reversed and set aside. In all other respects, the challenged decision is AFFIRMED. Costs against petitioners. SO ORDERED. CONCHITA Associate Justice WE CONCUR: CARPIO MORALES

LEONARDO Associate Chairperson

A.

QUISUMBING Justice J. JR. BRION

PRESBITERO DANTE O. TINGA VELASCO, Associate Justice Associate Justice ARTURO Associate Justice Width of an easement of right of way G.R. No. 77628 March 11, 1991 D.

TOMAS ENCARNACION, petitioner, vs. THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN and THE HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN,* respondents. Esteban M. Mendoza for petitioner. Oscar Gozos for private respondents. FERNAN, C.J.:p Presented for resolution in the instant petition for review is the not-so-usual question of whether or not petitioner is entitled to a widening of an already existing easement of right-of-way. Both the trial court and the Appellate Court ruled that petitioner is not so entitled, hence the recourse to this Court. We reverse. The facts are undisputed. Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda de Sagun are the owners of two adjacent estates situated in Buco, Talisay, Batangas. ** Petitioner owns the dominant estate which has an area of 2,590 square meters and bounded on the North by Eusebio de Sagun and Mamerto Magsino, on the south by Taal Lake, on the East by Felino Matienzo and on the West by Pedro Matienzo. Private respondents co-own the 405-square-meter servient estate which is bounded on the North by the National Highway (Laurel-Talisay Highway), on the South by Tomas Encarnacion, on the East by Mamerto Magsino and on the West by Felipe de Sagun. In other words, the servient estate stands between the dominant estate and the national road. Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons going to the national highway just crossed the servient estate at no particular point. However, in 1960 when private respondents constructed a fence around the servient estate, a roadpath measuring 25 meters long and about a meter wide was constituted to provide access to the highway. One-half meter width of the path was taken from the servient estate and the other one-half meter portion was taken from another lot owned by Mamerto Magsino. No compensation was asked and non was given for the portions constituting the pathway. 1

It was also about that time that petitioner started his plant nursery business on his land where he also had his abode. He would use said pathway as passage to the highway for his family and for his customers. Petitioner's plant nursery business through sheer hard work flourished and with that, it became more and more difficult for petitioner to haul the plants and garden soil to and from the nursery and the highway with the use of pushcarts. In January, 1984, petitioner was able to buy an owner-type jeep which he could use for transporting his plants. However, that jeep could not pass through the roadpath and so he approached the servient estate owners (Aniceta Vda. de Sagun and Elena Romero Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of their property to be added to the existing pathway so as to allow passage for his jeepney. To his utter consternation, his request was turned down by the two widows and further attempts at negotiation proved futile. Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6 (Tanauan) to seek the issuance of a writ of easement of a right of way over an additional width of at least two (2) meters over the De Saguns' 405-square-meter parcel of land. 2 During the trial, the attention of the lower court was called to the existence of another exit to the highway, only eighty (80) meters away from the dominant estate. On December 2, 1985, the lower court rendered judgment dismissing petitioner's complaint. It ruled: It is clear, therefore, that plaintiff at present has two outlets to the highway: one, through the defendants' land on a one meter wide passageway, which is bounded on both sides by concrete walls and second, through the dried river bed eighty meters away. The plaintiff has an adequate outlet to the highway through the dried river bed where his jeep could pass. The reasons given for his claim that the one-meter passageway through defendants' land be widened to two and one-half meters to allow the passage of his jeep, destroying in the process one of the concrete fences and decreasing defendants' already small parcel to only about 332.5 square meters, just because it is nearer to the highway by 25 meters compared to the second access of 80 meters or a difference of only 65 meters and that passage through defendants' land is more convenient for his (plaintiffs) business and family use are not among the conditions specified by Article 649 of the Civil Code to entitle the plaintiff to a right of way for the passage of his jeep through defendant's land. 3 On appeal, the Court of Appeals affirmed the decision of the trial court on January 28, 1987 and rejected petitioner's claim for an additional easement. In sustaining the trial court, the Court of Appeals opined that the necessity interposed by petitioner was not compelling enough to justify interference with the property rights of private respondents. The Appellate Court took into consideration the presence of a dried river bed only eighty (80) meters away from the dominant estate and conjectured that petitioner might have actually driven his jeep through the river bed in order to get to the highway, and that the only reason why he wanted a wider easement through the De Sagun's estate was that it was more convenient for his business and family needs. After evaluating the evidence presented in the case, the Court finds that petitioner has sufficiently established his claim for an additional easement of right of way, contrary to the conclusions of the courts a quo. While there is a dried river bed less than 100 meters from the dominant tenement, that access is grossly inadequate. Generally, the right of way may be demanded: (1) when there is absolutely no access to a public

highway, and (2) when, even if there is one, it is difficult or dangerous to use or is grossly insufficient. In the present case, the river bed route is traversed by a semi-concrete bridge and there is no ingress nor egress from the highway. For the jeep to reach the level of the highway, it must literally jump four (4) to five (5) meters up. Moreover, during the rainy season, the river bed is impassable due to the floods. Thus, it can only be used at certain times of the year. With the inherent disadvantages of the river bed which make passage difficult, if not impossible, it is if there were no outlet at all. Where a private property has no access to a public road, it has the right of easement over adjacent servient estates as a matter of law. 4 With the non-availability of the dried river bed as an alternative route to the highway, we transfer our attention to the existing pathway which straddles the adjoining properties of the De Sagun heirs and Mamerto Magsino. The courts below have taken against petitioner his candid admission in open court that he needed a wider pathway for the convenience of his business and family. (TSN, August 2, 1985, pp. 24-26). We cannot begrudge petitioner for wanting that which is convenient. But certainly that should not detract from the more pressing consideration that there is a real and compelling need for such servitude in his favor. Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time." This is taken to mean that under the law, it is the needs of the dominant property which ultimately determine the width of the passage. And these needs may vary from time to time. When petitioner started out as a plant nursery operator, he and his family could easily make do with a few pushcarts to tow the plants to the national highway. But the business grew and with it the need for the use of modern means of conveyance or transport. Manual hauling of plants and garden soil and use of pushcarts have become extremely cumbersome and physically taxing. To force petitioner to leave his jeepney in the highway, exposed to the elements and to the risk of theft simply because it could not pass through the improvised pathway, is sheer pigheadedness on the part of the servient estate and can only be counter-productive for all the people concerned. Petitioner should not be denied a passageway wide enough to accomodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business. We are well aware that an additional one and one-half (1 1/2) meters in the width of the pathway will reduce the servient estate to only about 342.5 square meters. But petitioner has expressed willingness to exchange an equivalent portion of his land to compensate private respondents for their loss. Perhaps, it would be well for respondents to take the offer of petitioner seriously. 5 But unless and until that option is considered, the law decrees that petitioner must indemnify the owners of the servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute the original path several years ago. Since the easement to be established in favor of petitioner is of a continuous and permanent nature, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code which states in part: Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.

xxx xxx xxx WHEREFORE, in conformity with the foregoing discussion, the appealed decision of the Court of Appeals dated January 28, 1987 is REVERSED and SET ASIDE. Petitioner Tomas Encarnacion is hereby declared entitled to an additional easement of right of way of twenty-five (25) meters long by one and one-half (1 1/2) meters wide over the servient estate or a total area of 62.5 square meters after payment of the proper indemnity. SO ORDERED. Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur. Easement of party wall G.R. No. L-10372 December 24, 1915 DOMINGO LAO and ALBINA DE LOS vs. THE HEIRS OF LORENZA ALBURO, objectors-appellees. Medina, Gabriel Buenaventura Reyes for appellees. and Diaz SANTOS, applicants-appellants,

for

appellants.

TORRES, J.: This appeal by bill of exceptions was taken from the judgment of August 17, 1914, in which the honorable judge of the Court of Land Registration decreed that, after the description of the parcel of land No. 2 should have been amended in the manner indicated, the parcels of land in the case at bar should be registered in the name of the applicants, Domingo Lao and his wife Albina de los Santos. It was held in this decree that the wall, called a stone wall in the plan of the said parcel No. 2, was a party wall between the said parcel and the property adjoining it on the north-west. Counsel for the applicants excepted to this finding and moved for a new trial. His motion was overruled whereupon the applicants excepted and duly filed their bill of exceptions, which was approved and transmitted to this court. On May 8, 1914, counsel for the said husband and wife filed a written application in the Court of Land Registration for the registration of four parcels of land, together with the buildings thereon, of which they claimed to be the absolute owners. The first of said parcels, Lot No. 1, comprising a house and three other buildings known as accesorias, all of strong materials, is situated in Calle Juan Luna, formerly Calle Jolo or Anloague of the district of Binondo, and has an area of 175.08 square meters; the second parcel, Lot No. 2, comprising a house of strong materials erected thereon, likewise situated in Calle Juan Luna, formerly Calle Jolo or Anloague, Binondo, is 212.05 square meters in area; the third parcel of land, Lot No. 3, located in Calle Elcano, San Nicolas, Binondo, and measures 596.06 square meters in area; and the fourth parcel of land, Lot No. 2, containing two buildings of strong materials, one of them of three stories, situated in Calle Elcano, San Nicolas, Binondo, 813.01 square meters in area. The street numbers of the two latter properties appear in the said judgment, and their boundaries are given in both the said plan No. 1 and in their respective technical descriptions.

The application recites that the first of the four above-mentioned properties was appraised in the last assessment, the land at P4,664 and the buildings at P4,000; the second parcel, the land at P5,492 and the buildings at P3,600; the third parcel, the land at P6,329 and the buildings at P4,000; and the fourth parcel, the land at P8,529 and the buildings at P22,500; and that the said properties are all unencumbered and no one has any right or share therein except the applicants, who acquired them by purchase, the first parcel from Felix Zalvidea, by a public instrument of June 11, 1912; the second parcel, from Clara Lichauco and her husband Catalino Arevalo, by a public instrument of September 12, 1912; the third parcel, from Antonio Abraham Brimo, by a public instrument of March 28, 1911; and the fourth parcel, from Marcela Lao, by a public instrument of April 17, 1914. The application recited the names of the tenants who occupy the first three properties and states that the applicants occupy the fourth. The names and addresses of the owners or proprietors of the adjoining properties are also given. After due service of notice, counsel for the administrator of the estate of the deceased Lorenza Alburo filed in court a written objection, alleging that in the part of the application relative to the second parcel of the plan No. 1, a stone wall shown in that plan to be northeast of the said parcel had been improperly included; that this wall had belonged to the said Lorenza Alburo, for it had existed since March 8, 1881; that the principal timbers of the building that had belonged to the said deceased had rested on it for more than thirty-five years, and the latter's successors had been and were now in the quiet, peaceable and uninterrupted possession of the said wall. At the trial of the case both parties thereto introduced documentary and oral evidence, and the judge of the Court of Land Registration made a personal inspection of the wall in question and of the respective properties of the applicants and the objectors. In the judgment appealed from it is held that the applicants, Domingo Lao and Albina de los Santos, conclusively and satisfactorily proved that they were, and had been for about forty years, the lawful owners and possessors of the four properties sought to be registered; wherefore the court decreed the registration thereof in their names, but ordered that record be made in the decree that the wall marked on the plan of the parcel No. 2 as a stone wall was a party wall. Hence the question to be decided relates solely to the matter of the said wall of the property designated as parcel No. 2 the subject matter of the objection filed by the administrator of the estate of the deceased Lorenza Alburo, owner of the property adjoining that designated as parcel No. 2 inasmuch as the administrator alleges in his objection that the said stone wall forms a part of the property that belonged to the said deceased while the applicants claim that this wall is theirs, being a part of the strong-minded material house constructed on the said parcel of land, Lot No. 2 according to the plan, Exhibit A. Article 572 of the Civil Code provides that the easement of party walls is presumed, unless there is a title or exterior mark or proof to the contrary in the dividing walls of adjoining buildings up to the common point of elevation. As the court held judgment appealed from that the wall which lies between the properties of the applicant and the objectors was a party wall, and as the applicants appealed from this ruling, it devolves upon us to decide whether it is in fact a party wall, as counsel for the administrator of the estate of the deceased Alburo or for her heirs finally admitted that it was in assenting to that decision, although he averred in his written objection that it was the exclusive property of the objectors; or whether, on the contrary, this wall is a part of property marked No. 2 on the plan Exhibit A, as the applicants claims. Article 573 of the Civil Code also declares that it shall be understood that there are exterior signs which conflict with the easement of party wall, when, among other circumstances, the entire wall is built on one of

the lots and not on the line dividing the two adjoining parcels; when the dividing wall, being constructed of stone and cement, has stone projecting at intervals from the surface on one side only and not on the other; and when it supports joists, beams, floors, and the roof timbers of one of the houses but not of the adjoining building.1awphil.net The record shows it to have been duly proven that the enclosing wall of Lot No. 2 of the plan Exhibit A, belonging to the applicants, is much higher than the adjoining building of the objectors; that along the top of the said wall there is a gutter which catches the rain water from the eaves of the roof of the applicants' building and carries it thence to Calle Juan Luna through an iron pipe fastened to the said wall; that one-half of the top of the said wall is covered by the roof of the applicants' building; that the supports of the said wall project toward the side of the applicants' land and that none of the buttresses are on the side of the objectors' lot; that the stones of the wall in dispute are bound or inset in the rear enclosing wall of the applicants' property in such wise that the two walls that inclose the lot form but a single construction, the exterior signs of which show that the wall in question is not a party wall, but that it forms a part of the applicant's building and belongs to them. Besides the signs just referred to, the evidence also shows that on the objectors' land and flanking the disputed wall there is another and lower wall which has no connection with the one in question. Cayetano Arguelles, a master builder, who climbed to the top of the wall in question and examined it, testified that the aforesaid drain caught the rain water from the eaves of the applicants' roof, and that from the outside the division or space between the applicants' wall and the wall on the objectors' land could be seen; that the lower part of this latter wall had two arch like hollows; that according to the testimony of the objector, Ireneo Mendoza, the latter wall was that of an old building that had belonged to the said deceased and was destroyed by an earthquake; and that in the rear of the objectors' land were the ruins of a wall which had also flanked the wall in dispute, and these ruins, according to the said witness Mendoza were what was left of the wall of a latrine formerly existing there. These exterior signs contrary to the existence of a party-wall easement cannot be offset by the circumstance that the dispute wall projects into Calle Juan Luna 74 centimeters farther than the applicants' building, and neither can the fact that the face of this projecting wall is on the same street line as the objectors' building, for the reason that, in view of the said signs contrary to the existence of the easement of party wall, the projection of the wall does not prove that it was a party wall belonging in common to the applicants and the objectors and that the latter shared in the ownership thereof. The objectors have not proved that a part or one-half of the wall in litigation was erected on the land that belonged to the deceased Lorenza Alburo. The fact that the owners of the objectors' property may have surreptitiously inserted some of the timbers or joists of their building in the wall belonging to the applicants is not enough to convert this latter into a party wall, when there are so many exterior signs to indicate the exclusive ownership of the wall and to conflict with the existence of the easement that the objectors endeavor to establish. The wall in litigation is fully proven by the record to belong exclusively to the applicants. All of the applicants' properties, including the wall in question, should therefore be registered. itc-a1f For the foregoing reasons the judgment appealed from is affirmed, but the decree of registration of the property designated as Lot No. 2 shall include the disputed wall as belonging exclusively to the applicants, and that part of said wall is a party wall is hereby reversed; without special finding as to costs. So ordered. Arellano, C.J., Johnson, Carson, Moreland, Trent and Araullo, JJ., concur.

Easement of light and view G.R. No. L-14652 June 30, 1960 petitioner,

JUAN GARGANTOS, vs. TAN YANON and THE COURT OF APPEALS, respondents. Jose T. Constantino P. Tadena for respondents. GUTIERREZ DAVID, J.: Nery

for

petitioner.

Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the judgment of the Court of First Instance of Romblon. The record discloses that the late Francisco Sanz was the former owner of a parcel of land containing 888 square meters, with the buildings and improvements thereon, situated in the poblacion of Romblon. He subdivided the lot into three and then sold each portion to different persons. One portion was purchased by Guillermo Tengtio who subsequently sold it to Vicente Uy Veza. Another portion, with the house of strong materials thereon, was sold in 1927 to Tan Yanon, respondent herein. This house has on its northeastern side, doors and windows over-looking the third portion, which, together with the camarin and small building thereon, after passing through several hands, was finally acquired by Juan Gargantos, petitioner herein. On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the roofing of the old camarin. The permit having been granted, Gargantos tore down the roof of the camarin. On May 11, 1955, Gargantos asked the Municipal Council of Romblon for another permit, this time in order to construct a combined residential house and warehouse on his lot. Tan Yanon opposed approval of this application. Because both the provincial fiscal and district engineer of Romblon recommended granting of the building permit to Gargantos, Tan Yanon filed against Gargantos an action to restrain him from constructing a building that would prevent plaintiff from receiving light and enjoying the view trough the window of his house, unless such building is erected at a distance of not less than three meters from the boundary line between the lots of plaintiff and defendant, and to enjoin the members of Municipal Council of Romblon from issuing the corresponding building permit to defendant. The case as against the members of the Municipal Council was subsequently dismissed with concurrence of plaintiff's council. After trial, the Court of First Instance of Romblon rendered judgment dismissing the complaint and ordering plaintiff to pay defendant the sum of P12,500.00 by way of compensatory, exemplary, moral and moderate damages. On appeal, the Court of Appeals set aside the decision of the Court of First Instance of Romblon and enjoined defendant from constructing his building unless "he erects the same at a distance of not less than three meters from the boundary line of his property, in conformity with Article 673 of the New Civil Code." So Juan Gargantos filed this petition for review of the appellate Court's decision. The focal issue herein is whether the property of respondent Tan Yanon has an easement of light and view against the property of petitioner Gargantos.

The kernel of petitioner's argument is that respondent never acquired any easement either by title or by prescription. Assuredly, there is no deed establishing an easement. Likewise, neither petitioner nor his predecessors-in-interest have ever executed any deed whereby they recognized the existence of the easement, nor has there been final judgment to that effect. Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains that respondent has not acquired an easement by prescription because he has never formally forbidden petitioner from performing any act which would be lawful without the easement, hence the prescriptive period never started. It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in the Yu-Tibo case are not applicable herein because the two estates, that now owned by petitioner, and that owner by respondent, were formerly owned by just one person, Francisco Sanz. It was Sanz who introduced improvements on both properties. On that portion presently belonging to respondent, he constructed a house in such a way that the northeastern side thereof extends to the wall of the camarin on the portion now belonging to petitioner. On said northeastern side of the house, there are windows and doors which serve as passages for light and view. These windows and doors were in existence when respondent purchased the house and lot from Sanz. The deed sale did not provide that the easement of light and view would not be established. This then is precisely the case covered by Article 541, O.C.C (now Article 624, N.C.C) which provides that the existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will continue actively and passively, unless at the time the ownership of the two estate is divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to disappear before the instrument is executed. The existence of the doors and windows on the northeastern side of the aforementioned house, is equivalent to a title, for the visible and permanent sign of an easement is the title that characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It should be noted, however, that while the law declares that the easement is to "continue" the easement actually arises for the first time only upon alienation of either estate, inasmuch as before that time there is no easement to speak of, there being but one owner of both estates (Articles 530, O.C.C., now Articles 613, N.C.C). We find that respondent Tan Yanon's property has an easement of light and view against petitioner's property. By reason of his easement petitioner cannot construct on his land any building unless he erects it at a distance of not less than three meters from the boundary line separating the two estates. Wherefore, the appealed decision is hereby affirmed with costs against petitioner. Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Barrera, JJ., concur. G.R. No. 911 March 12, 1903 plaintiff-appellant,

MAXIMO CORTES, vs. JOSE PALANCA YU-TIBO, defendant-appellant. Felipe G. Calderon, Simplicio del Rosario, for appellee. MAPA, J.:

for

appellant.

This suit was brought to obtain an injunction, in accordance with the provisions of section 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the continuation of certain buildings commenced by the defendant. The court below issued a preliminary injunction during the trial, but, upon, rendering final judgment, dissolved the injunction, with the costs against the plaintiff. The latter excepted to this judgment and assigns error: In the trial the following facts were admitted without contradiction: (1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same street; (2) that these windows have been in the existence since the year 1843 and (3) that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in such a manner that one-half of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. In its decision the court below practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63, from making improvements of any kind therein at any time prior to the complaint. The contention of the plaintiff is that by the constant and uninterrupted use of the windows referred to above during a period of fifty-nine years he acquired from prescription an easement of light in favor of the house No. 65, and as a servitude upon house No. 63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the said easement. He contends that the easement of light is positive; and that therefore the period of possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment of the same commenced, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No. 63, and without opposition on this part. The defendant, on the contrary, contends that the easement is negative, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence of the easement. The court below in its decision held in the easement of light is negative, and this ruling has been assigned by the plaintiff as error to be corrected by this court. A building may receive light in various manners in the enjoyment of an easement of light, because the openings through which the light penetrates may be made in one's own wall, in the wall of one's neighbor, or in a party wall. The legal doctrine applicable in either one of these cases is different, owing to the fact that, although anyone may open windows in his own wall, no one has a right to do so in the wall of another without the consent of the owner, and it is also necessary, in accordance with article 580 of the Civil Code, to obtain the consent of the other coowner when the opening is to be made in a party wall. This suit deals with the first case; that is, windows opened in a wall belonging to the wife of the plaintiff, and it is this phase of the easement which it is necessary to consider in this opinion. When a person opens windows in his own building he does nothing more than exercise an act of ownership inherent in the right of property, which, under article 348 of the Civil Code, empowers him to deal with his property as he may see fit, with no limitations other than those established by law. By reason of the fact that

such an act is performed wholly on a thing which is wholly the property of the one opening the window, it does not in itself establish any easement, because the property is used by its owner in the exercise of dominion, and not as the exercise of an easement: " For a man," says law 13, title 31, third partida, "should not use that which belongs to him as if it were a service only, but as his own property ." Coexistent with this right is the right of the owner of the adjacent property to cover up such windows by building on his own land or raising a wall contiguously to the wall in which the windows are opened (art. 581 of the same Code), by virtue of the reciprocity of rights which should exist between abutting owners, and which would cease to exist if one could do what he pleased on his property and the other could not do the same on his. Hence it is that the use of the windows opened in a wall of one's own property, in the absence of some covenant or express agreement to the contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting property (judgments of the supreme court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 1890), and does not create any right to maintain the windows to the prejudice of the latter (judgment of the supreme court of Spain of the 13th of June, 1877). The mere toleration of such an act does not imply on the part of the abutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it avail the owner of the windows for the effects of possession according to article 1942 of the Civil Code, because it is a mere possession at will. From all this it follows that the easement of light with respect to the openings made in one's own edifice does not consist precisely in the fact of opening them or using them, inasmuch as they may be covered up at any time by the owner of the abutting property, and, as Manresa says in his commentaries on the Civil Code, "there is no true easement as long as the right to impede its use exists ." The easement really consists of in prohibiting or restraining the adjacent owner from doing anything which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not impeding the light ( ne luminibus officiatur). The latter coincides in its effects, from this point of view, with the obligation of refraining from increasing the height of a building ( altius non tollendi), which, although it constitutes a special easement, has for its object, at times, the prevention of any interruption of the light enjoyed by the adjacent owner. It will be readily observed that the owner of the servient estate subject to such easement is under no obligation whatsoever to allow anything to be done on his tenement, nor to do anything there himself, but is simply restrained from doing anything thereon which may tend to cut off the light from the dominant estate, which he would undoubtedly be entitled to do were it not for the existence of the easement. If, then, the first condition is that which is peculiar to positive easements, and the second condition that which is peculiar to negative easements, according to the definition of article 533 of the Civil Code, it is our opinion that the easement of lights in the case of windows opened in one's own wall is of a negative character, and, as such, can not be acquired by prescription under article 538 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate may, by a formal act have prohibited the owner of the servient estate from doing something which it would be lawful from him to do were it not for the easement. The supreme court of Spain, in its decisions upon this subject, has established these principles by a long line of cases. In its judgment of May 14, 1861, the said court holds that "the prescription of the easement of lights does not take place unless there has been some act of opposition on the part of the person attempting to acquire such a right against the person attempting to obstruct its enjoyment." The easements of light and view," says the judgment of March 6, 1875, "because they are of a negative character, can not be acquired by a prescriptive title, even if continuous, or although they may have been used for more than twenty-eight years, if the indispensable requisite for prescription is absent, which is the prohibition on the one part, and the consent on the other, of the freedom of the tenement which it is sought to charge with the easement." In its judgment of June 13, 1877, it is also held that use does not confer the right to maintain lateral openings or windows in one's own wall to the prejudice of the owner of the adjacent tenement, who, being entitled to make use of the soil and of the space above it, may, without restriction, build on his line or increase the height of

existing buildings, unless he has been " forbidden to increase the height of his buildings and to thus cut off the light," and such prohibition has been consented to and the time fixed by law subsequently expired. The court also holds that it is error to give the mere existence or use of windows in a wall standing wholly on the land of one proprietor the creative force of true easement, although they may have existed from the time immemorial. Finally, the judgments of the 12th of November, 1899, and the 31st of May, 1890, hold that "as this supreme court has decided, openings made in walls standing wholly on the land of one proprietor and which overlook the land of another exist by mere tolerance in the absence of an agreement to the contrary, and can not be acquired by prescription, except by computing the time from the execution of some act of possession which tends to deprive the owner of the tenement affected of the right to build thereon." Various other judgments might be cited, but we consider that those above mentioned are sufficient to demonstrate the uniformity of the decisions upon this point. It is true that the supreme court of Spain, in its decisions of February 7 and May 5, 1896, has classified as positive easements of lights which were the object of the suits in which these decisions were rendered in cassation, and from these it might be believed at first glance that the former holdings of the supreme court upon this subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the former decisions above cited. In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These properties were subsequently conveyed to two different persons, but at the time of the separation of the property nothing was said as to the discontinuance of the easement, nor were the windows which constituted the visible sign thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in existence for thirty-five years, and alleged that the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in this particular case was positive, because it consisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541 of the Code, which is of the following tenor: "The existence of apparent sign of an easement between two tenements, established by the owner of both of them, shall be considered, should one be sold, as a title for the active and passive continuance of the easement, unless, at the time of the division of the ownership of both tenements, the contrary should be expressed in the deed of conveyance of either of them, or such sign is taken away before the execution of such deed." The word "active" used in the decision quoted in classifying the particular enjoyment of light referred to therein, presupposes on the part of the owner of the dominant estate a right to such enjoyment arising, in the particular case passed upon by that decision, from the voluntary act of the original owner of the two houses, by which he imposed upon one of them an easement for the benefit of the other. It is well known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code). It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a principle of law that upon a division of a tenement among various persons -- in the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomed -- such easements as may be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character. Therefore, the decision in question is not in conflict with the former rulings of the supreme court of Spain upon the subject, inasmuch as it deals

with an easement of light established by the owner of the servient estate, and which continued in force after the estate was sold, in accordance with the special provisions of article 541 of the Civil Code. Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid down, because it refers to windows opened in a party wall, and not in a wall the sole and exclusive property of the owner of the dominant tenement, as in the cases referred to by the other decisions, and as in the case at bar. The reason for the difference of the doctrine in the one and the other case is that no part owner can, without the consent of the other, make in a party wall a window or opening of any kind, as provided by article 580 of the Civil Code. The very fact of making such openings in such a wall might, therefore, be the basis for the acquisition of a prescriptive title without the necessity of any active opposition, because it always presupposes the express or implied consent of the other part owner of the wall, which consent, in turn, implies the voluntary waiver of the right of such part owner to oppose the making of such openings or windows in such a wall. With respect to the provisions of law 15, title 31, third partida, which the appellant largely relied upon in this oral argument before the court, far from being contrary to it, is entirely in accord with the doctrine of the decisions above referred to. This law provides that "if anyone shall open a window in the wall of his neighbor, through which the light enters his house," by this sole fact he shall acquire a prescriptive title to the easement of light, if the time fixed in the same law (ten years as to those in the country and twenty years as to absentees) expires without opposition on the part of the owner of the wall; but, with the exception of this case, that is to say, when the windows are not opened in the wall of the neighbor, the law referred to requires as a condition to the commencement of the running of the time for the prescriptive acquisition of the easement, that "the neighbor be prohibited from raising his house, and from thereby interrupting the light." That is to say, he must be prohibited from exercising his right to build upon his land, and cover the window of the other. This prohibition, if consented to, serves as a starting point for the prescriptive acquisition of the easement. It is also an indispensable requisite, therefore, in accordance with the law of the partidas, above mentioned, that some act of opposition be performed, in order that an easement may be acquired with respect to openings made in one's own wall. For a proper understanding of this doctrine, it is well to hold in mind that the Code of the partidas, as well as the Roman law, clearly distinguishes two classes of easements with respect to the lights of houses, as may be seen in law 2 of title 31, of the third partida. One of them consists in "the right to pierce the wall of one's neighbor to open a window through which the light may enter one's house" (equivalent to the so-called easement of luminum of the Romans); the other is "the easement which one house enjoys over another, whereby the latter can not at any time be raised to a greater height than it had at the time the easement was established, to the end at the light be not interrupted." ( Ne luminibus officiatur.) For the prescriptive acquisition of the former the time must begin, as we have seen, from the opening of the window in the neighbor's wall. As to the second, the time commences from the date on which he was "prevented from raising his house." Some of the judgments which establish the doctrine above laid down were rendered by the supreme court of Spain interpreting and applying the above cited law 15, title 31, partida 3, and therefore they can not in any sense be regarded as antagonistic to the law itself. The question as to whether the windows of the house of the plaintiff are, or are not, so-called regulation windows, we consider of but little importance in this case, both because the authority of the decisions of the law of the partidas, above cited, refers to all kinds of windows, and not to regulation windows solely, and because the record does not disclose, nor has the appellant even stated, the requirements as to such regulation windows under the law in operation prior to the Civil Code, which he asserts should be applied and on which he relies to demonstrate that he has acquired by prescription the easement in question. With respect to the watershed which, according to the plaintiff, exists over the window in question, the record does

not disclose that the same has been destroyed by the defendant. He expressly denies it on page 7 of his brief, and affirms (p. 8) that the tenant of the appellant's property himself removed it, by reason of the notice served on him; on the other hand, the judgment of the court below contains no findings with respect to this fact, nor does it disclose the former existence of any such watershed. Furthermore, the opinion which we have formed with respect to this matter, in so far as we are able to understand the merits of the case, is that this shed was a mere accessory of the window, apparently having no other purpose than that of protecting it against the inclemency of the weather; this being so, we are of opinion that it should follow the condition of the window itself, in accordance with the legal maxim that the accessory always follows the principal. The appellant contends that the shed should be regarded as a projection within the provisions of article 582 of the Code; but it is sufficient to observe that this article speaks of windows with direct views, balconies, or similar projections, in order to conclude that the article does not refer to such watersheds, which have not the slightest degree of similarity to balconies, nor are they constructed for the purpose of obtaining the view -- this being the subject-matter which this article expressly purports to control -- inasmuch as such sheds have rather the effect of limiting the scope of the view than of increasing it. The fact that the defendant did not cover the windows of the other house adjacent No. 63 at the time he covered the windows of the appellant, a fact which the latter adduces as proof of the recognition on the part of the former of the prescriptive acquisition of the easement of the light in favor of that house, which, according to his statement, is under precisely the same conditions as the house of the plaintiff, does not necessarily imply, in our opinion, any such recognition, as it might be the result of a mere tolerance on the part of the defendant. Certainly the fact of his tolerating the use by the owner of that house of such windows, supposing the facts to be as stated, does not carry with it as a result an obligation to exercise the same forbearance with respect to the plaintiff; but whatever may be the legal status of the windows in the house referred to with respect to the house No. 63, we cannot pass upon the point, nor can we form suppositions concerning the matter for the purpose of drawing conclusions of any kind therefrom to support our opinion, for the simple reason that it is not a point at issue in the case, and more especially because the defendant not only denied the existence of the alleged easement of light in favor of the house referred to, but, on the contrary, he affirms that demand has been made that the windows in said house be closed, as may be seen on page 8 of his brief. The point discussed in this trial being whether the plaintiff has acquired the easement which he seeks to enforce over the house of which the defendant is tenant, it is evident that the provisions of article 585 of the Civil Code can not be invoked without taking for granted the very point at issue. This article refers to cases in which, under any title, the right has been acquired to have direct views, balconies, or belvederes over contiguous property. The existence of such a right being the very point at issue, the supposition upon which the article rests is lacking, and it is therefore not in point. As a result of the opinion above expressed, we hold: 1. That the easement of light which is the object of this litigation is of a negative character, and therefore pertains to the class which can not be acquired by prescription as provided by article 538 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate has, in a formal manner, forbidden the owner of the servient estate to do an act which would be lawful were it not for the easement. 2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the right of the owner of the house No. 63 Calle Rosario (of which the defendant is tenant), to make therein improvements which might obstruct the light of the house No. 65 of the same street, the property of the wife of

the appellant, at any time prior to the complaint, as found by the court below in the judgment assigned as error, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how long a time have elapsed since the windows were opened in the wall of the said house No. 65, because the period which the law demands for such prescriptive acquisition could not have commenced to run, the act with which it must necessarily commence not having been performed. Therefore, we affirm the judgment of the court below and condemn the appellant to the payment of all damages caused to the plaintiff, and to the payment of the costs of this appeal. So ordered. Arellano, C.J., Cooper, Torres, J., did not sit in this case. ON MOTION FOR A REHEARING. The plaintiff asks for a rehearing of the decision of the court of March 12th last upon the ground that the same contains error: First, because the decision holds that the window opened in the plaintiff's own wall and watershed do not constitute the continuous and apparent easements of prospect, light, and ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition to the provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585 of the Civil Code. This allegation is entirely unfounded, inasmuch as the decision of the court contains no declaration as to whether the windows and watershed do or do not constitute continuous and apparent easements, or jus projitiendi and jus spillitiendi. These questions were not drawn into issue by the complaint, and therefore any decision thereon one way or the other would have been mere dicta. What the court did hold was that the easement of light, when it is sought to claim such benefit from a window opened in one's own wall, as does the appellant with respect to the tenement of the defendant, belongs to the class of negative easements, and that on hold on that account the time of possession for prescriptive acquisition of the title thereto must be counted, not from the time of the opening of the windows, but from the time at which the owner thereof has executed some act of opposition tending to deprive the owner of the servient tenement of his right, under the law, build upon it to such height as he might see fit in the legitimate use of his rights of ownership. With respect to the watershed, the court held that the shed in question in the case is not included within the class of projections referred to in article 582 of the Civil Code, and certain it is that neither this article nor any of the other provisions of law cited by the appellant in his motion papers established any doctrine contrary to that laid down in the decision, either with regard to the watershed or with respect to the windows. It is not necessary to say anything further upon this point. It is sufficient to read the text of the laws cited to reach the conclusion that the assertion made by the appellant in his motion papers is entirely gratuitous. Article 582 provides that windows with direct views, balconies, or other similar projections opening upon the tenement of one's neighbor are not permissible unless there are two meters distance between the wall in which such openings are constructed and the adjacent tenement. From this the appellant draws the conclusion that he who opens windows in his own wall without respecting the distance mentioned does not exercise an act of ownership, as stated in the decision, inasmuch as he violates an express provisions of the law. The conclusion reached is evidently false. The appellant confounds the facts with the law -- an act of ownership with the right of ownership. The owner of a thing does not cease to be such owner because in his Willard, and Ladd, JJ., concur.

manner of use or enjoyment thereof he violates some provision of law. The acts which he performs, in our opinion, even if abusive or contrary to law, are in a strict sense acts of ownership, acts in the exercise of dominion, because this character is not derived from a greater or less degree of compliance with the provisions of law, but from the existence of the status of owner on the part of the person who exercises such acts. In order that the act performed by the owner of a wall in opening windows therein be a true act of ownership it is a matter of indifference whether or not the distance prescribed by article 582 of the Code has been respected, although, considered from a legal point of view, it might be an illegal act, as not complying with the conditions imposed by law. The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that "a man should not use that which belongs to him as if it were a service only, but as his own property" is of general application, and does not refer to the easements which is a property owner may establish for the benefit of his heirs, as is erroneously believed by the appellant. The very same law provides that easements which "a man imposes upon his house must be for the benefit of the tenement or thing of another, and not that of his own tenement;" and this is because things are of service to their owner by reason of dominion, and not in the exercise of a right of easement. "Res sua," says a legal maxim, "nemini jure servitutis servit." The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated procedure no effect with respect to possession is applicable as much as to the prescription of real rights as to the prescription of the fee, it being a glaring and self-evident error to affirm the contrary, as does the appellant in his motion papers. Possession is the fundamental basis of the prescription. Without it no kind of prescription is possible, not even the extraordinary. Consequently, if acts of mere tolerance produce no effect with respect to possession, as that article provides, in conformity with article 444 of the same Code, it is evident that they can produce no effect with respect to prescription, whether ordinary or extraordinary. This is true whether the prescriptive acquisition be of a fee or of real rights, for the same reason holds in one and the other case; that is, that there has been no true possession in the legal sense of the word. Hence, it is because the use of windows in one's own wall is the result of a mere tolerance that the supreme court of Spain, in its judgment of June 13, 1877, has held that such user lacks the creative force of a true easement, although continued from time immemorial. The citation of article 1959 of the Civil Code and of law 21, title 29, partida 3, made by the petitioner, is therefore not in point, because both of these provisions of law, which refer to the extraordinary period of prescription presuppose possession as a necessary requisite, even if without either just title or good faith. The second error assigned is that in the decision the court holds that the gravamina constituted by the window and the projection are negative easements, against the provisions of article 533, which define them as positive, which definition, he adds, is supported by the judgments of the supreme court of Spain of February 7 and May 5, 1896, cited in paragraph 12 of the said decision, which judgments declare that the easement resulting from a window is positive. It is not true that article 533 of the Civil Code says that the easement of light is positive, because it does nothing more than give in general terms the definition of positive easements and negative easements, without attempting to specify whether the easement of lights pertains to the first or to the second class. We have declared that the easement is negative, having in mind this very definition of the Code and the doctrine established by the judgments of the supreme court of Spain which have been cited in our opinion. The interpretation which the appellant attempts to give the article of the Civil Code cited is evidently erroneous and, consequently, the citation made by him in support of his contention is not in point.

Our opinion of the true extent and meaning of the judgments of the supreme court of Spain of February 7 and May 5, 1896, has been already sufficiently explained, and it is therefore unnecessary to go into the subject again here. We refer to our decision with respect to what was said therein upon this subject. The decision of the court does not contain the declaration, as gratuitously assumed by the appellant, that the easement resulting from a projection is of a negative character; nor, in fact, had we any occasion to make such a declaration, in view of the nature of the issues raised and discussed during the trial. What we did, indeed, hold was that the watershed mentioned in the complaint, the purpose of which was simply to protect the window in question from sun and rain, was a mere accessory to that window, and that in no case could it be considered as a projection within the provisions of article 582 of the Civil Code, as so erroneously contended by the appellant at the trial. We find nothing in his motion papers which can in any way weaken this holding. The third error is assigned is that the court holds that the easement of light, as negative, can not be acquired by prescription except by counting the period of possession from the time at which the owner of the servient tenement has been prohibited from making improvements which might interfere with said easement, contrary to the provisions of law 14, title 31, partida 3, and articles 538 and 585 of the Civil Code, which establish the contrary. This assertion is entirely destitute of foundation, inasmuch as neither in the law of the partidas nor in the articles of the Civil Code mentioned is to be found the doctrine which the appellant arbitrarily seeks to deduce from them. It is sufficient to read the text to reach the conclusion that the assertion is wholly gratuitous. The fourth error assigned is that the court holds that the watershed, as being an accessory of the window, can not in itself constitute an easement, this being contrary to the provisions of articles 582 and 585 of the Civil Code, and law 2, title 31, partida 3, which do not make any such distinction. Neither of the law cited speaks expressly of watersheds. We have held that article 582 refers solely to windows, balconies, and other similar projections, and that the watershed in question does not pertain to this class of projections, our holding being based upon the reasons given in our decision. The appellant advances no argument worthy of serious consideration, and therefore we continue to believe that our opinion in this matter is strictly in accordance with the law. The appellant has attached to his motion for a rehearing two judgments, one rendered by the Royal Audiencia of Manila September 6, 1877, and the other by the supreme court of Spain on the 22d of February, 1892, and we think it well to say a few words concerning them. In the opinion of the appellant these judgments support the theory contended for by him at the trial, that the easement of lights is positive and not negative. His error in so believing is evident, inasmuch as neither of the judgments referred to establishes any such doctrine. On the contrary, it appears clear, from the first of these judgments, that the easement referred to is negative in the opinion of the court which rendered it. This appears from the eight conclusion of law therein, which is literally as follows: "From the evidence introduced by the defendant, and even from the testimony of witnesses of the plaintiff, it has been proven that since 1828 the house in question has suffered no change or alteration in its roof, which projects over Cosio's lot, which constitutes the active opposition necessary in order to acquire by prescription the right to the light ." It will be seen, then, that the latter part of the preceding transcript of the conclusion of law days down precisely the same doctrine as that expressed in our decision -- that active opposition is a necessary condition for prescriptive acquisition of an easement of light. And this also demonstrates conclusively that the court which

rendered the judgment referred to considered the easement to be negative, inasmuch as positive easements do not require any active opposition as a basis for their prescriptive acquisition, such an act being solely necessary to the prescription of negative easements. It would appear, judging from his allegations as a whole, that the appellant confuses positive easements with continuous easements, and the judgments referred to, in fact, declares in its fourth conclusion of law that the easement of light is continuous. If these were really so the error of the appellant would be manifest, because continuity is not a quality exclusively peculiar to positive easements; there are negative easements which are also continuous. Hence if is that the Civil Code, after classifying easements, in article 532, as continuous and discontinuous, classifies them also as positive and negative (art. 533), thus giving to understand that this latter classification depends upon other characteristics entirely distinct from the continuity or discontinuity of easements. If all continuous easements were positive and all discontinuous easements were negative, then the express division of easements into positive and negative made by the Code, after establishing the division of the same as continuous or discontinuous, would be entirely unnecessary, as they would be entirely merged or included in the latter classification. It is sufficient to read the text of the Code to understand beyond the possibility of a doubt that a negative easement may be continuous, and that a positive easement may be discontinuous, according to the special nature of each one. With respect to the second judgment -- the judgment of the supreme court of Spain of February 22, 1892 -- it is certainly difficult to understand how the appellant could have imagined that he had found therein the slightest ground for his contention, inasmuch as it lays down no doctrine which relates even inference to the subject of easements, and simply holds, in the first of only two paragraphs in which its conclusions are contained, that "judgments should be clear, precise, and responsive to the complaint and the issues properly raised at the trial;" and in the second, that "the judgment appealed was contradictory as to the questions it decides, because it makes certain declarations favorable to some of the contentions in the plaintiff's complaint and then gives judgment for the defendant, without making any distinction." It was for this reason alone, and for no other, that the judgment appealed was reversed and annulled. In the judgment rendered by the same supreme court upon the merits of the case, as a result of this decision in cassation, no other doctrine is laid down than that "the judgment must be that the defendant comply with those claims advanced by the complaint to which he was consented, and that he must be discharged as to those allegations which have been denied by him and which have not been proved by the plaintiff." There is not one word on these judgments which says that the easement of lights is positive, nor that a watershed constitutes a true projection within the meaning attached to this word in article 582 of the Civil Code, as has been vainly contended by the appellant in the trial. Therefore the appellant's motion for a rehearing of the decision of March 12, 1903, is denied. Arellano, C.J., Cooper, Willard Torres and McDonough, JJ., did not sit in this case. and Ladd, JJ., concur.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME COURT OF THE UNITED STATES. WILLARD, J.: The application to this court for the allowance of a writ of error or appeal for the purpose of removing this case to the Supreme Court of the United States is denied.

Section 10 of the act of Congress of July 1, 1902, is as follows: SEC. 10. That the Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme Court of the United States on appeal or writ of error by the party aggrieved, in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the circuit courts of the United States. There is no question in the case relating to the Constitution or any statute of the United States. The evidence submitted by the applicant shows that the value of his property over which the litigation turns is $11,867.70, money of the United States. The fact that the plaintiff owns other houses in different parts of the city as to which he claims an easement of light similar to the one claimed in this case, that the decision in this case destroys all of these claimed easements, and that the value of those other houses exceeds $25,000, gold, is not important. The test is the value of the matter in controversy. The matter in controversy here was the easement of light and air over the property No. 63 Calle del Rosario and in favor of house No. 65. That easement could not be worth more than the house itself. The easements in favor of other houses of the plaintiff over other lots than No. 63 were not in controversy in this suit. (Town of Elgin vs. Marshall, 106 U. S., 578.) So ordered. Arellano, C.J., Torres, Cooper, McDonough, J., did not sit in this case. Voluntary easements Villanueva vs Velasco (Check Legal Easements) Mapa and Ladd, JJ., concur.

i iiNUISANCE Doctrine of attractive nuisance G.R. No. L-3422 June 13, 1952 HIDALGO ENTERPRISES, INC., vs. GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents. Quisumbing, Sycip, Quisumbing and Salazar Antonio M. Moncado for respondents. BENGZON, J.:

petitioner,

for

petitioner.

This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario. It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a foot high from the surface of the ground. Through the wide gate entrance, which is continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his age entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver, having been died of "asphyxia secondary to drowning." The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8. The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. ( See 65 C.J.S., p. 455.) The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S., p. 458). Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other words is the body of water an attractive nuisance? The great majority of American decisions say no. The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.) In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows: Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.

Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by petitioner that the parents of the boy were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual needs no further discussion. The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs. Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur. Remedies for abatement G.R. No. 95279 July 25, 1991 ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN, Administrator, petitioner, vs. HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF ISABELA, Basilan Province, herein represented by BENJAMIN VALENCIA, in his capacity as Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS, ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO TUBILAG, PABLO ANDRES, respondents. Bienvenido G. Martin for petitioner. Laurencio Saavedra for private respondents. MELENCIO-HERRERA, J.:p Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan, which was ordered demolished by respondent Municipal Mayor, Benjamin Valencia. Respondent municipal employees implemented the demolition, for which reason they are also impleaded. The quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946 by Gregoria Francisco, who died in 1976. It stands on a lot owned by the Philippine Ports Authority and faces the municipal wharf. By virtue of Proclamation No. 83 issued by President Elpidio Quirino, said land was declared for the exclusive use of port facilities. On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San, surviving spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for a period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for the storage of copra. On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin San by mail to remove or relocate its quonset building, citing Zoning Ordinance No. 147 of the municipality; noting its antiquated and dilapidated structure; and. stressing the "clean-up campaign on illegal squatters and unsanitary surroundings along Strong Boulevard." This was followed by another letter of 19 May 1989 of the same tenor. Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition on 24 May 1989. Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional Trial Court of Basilan, Branch 2 (docketed as S.P. No. 4). On 7 August 1989, the Trial Court 1 denied the Writ of Prohibition and upheld the power of respondent Mayor to order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal. On 6 September 1989, petitioner's quonset building was completely demolished ( Rollo, p. 49). In its place sprang shanties and nipa huts, photographs of which have been attached to petitioner's Memorandum. On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822) 2 initially reversed the Trial Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not vested with power to order summarily, and without any judicial proceeding, the demolition of the quonset building, which was not a nuisance per se and that petitioner is in legal possession of the land on which the building stands by virtue of the permit issued by the Philippine Ports Authority (Zamboanga Province). The restoration to petitioner of the building materials removed upon demolition, and the payment to it of attorney's fees of P10,000.00, were also ordered. However, upon reconsideration sought by reswever, upon reconsideration sought by respondent officials, Respondent Court 3 reversed itself on 13 June 1990 stating that "although Municipal Mayor Valencia initially issued an order demolition without judicial process, the deficiency was remedied when appellant (petitioners herein) filed a petition for prohibition and injunction and was heard on oral argument after appellees (respondent officials) filed their answer." Respondent Court then quashed the Writ of Prohibition and set aside the order of restitution and payment of attorney's fees. Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal.

The focal issue for determination is whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioner's quonset building. Respondent justify the demolition in the exercise of police power and for reasons of health, safety and general welfare. It also relies on Ordinance No. 147 (CA Records, pp. 85-104) of the Municipality of Isabela. For its part petitioner consistently denies to the Mayor, such power, invoking provisions of the Local Government Code. Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "An Ordinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela . . ." It is not disputed that the quonset building, which is being used for the storage of copra, is located outside the zone for warehouses. It is referred to in Ordinance as a non-conforming structure, which should be relocated. And in the event that an immediate relocation of the building can not be accomplished, Section 16 of the Ordinance provides: A certificate of non-conformance for all non-conforming uses shall be applied for by the owner or agent of the property involved within twelve (12) months from the approval of this Ordinance, otherwise the non-conforming use may be condemned or removed at the owner's expense. Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provision should not be interpreted as authorizing the summary removal of a non-conforming building by the municipal government. For if it does, it must be struck down for being in contravention of the requirements of due process, as originally held by the respondent Court. Moreover, the enforcement and administration of the provisions of the Ordinance resides with the Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147). It is said official who may call upon the City Fiscal to institute the necessary legal proceedings to enforce the provisions of the Ordinance (id., Sec. 2, Ibid.). And any person aggrieved by the decision of the Zoning Administrator regarding the enforcement of the Ordinance may appeal to the Board of Zoning Appeals (id., Sec. 7, Ibid.). That a summary remedy can not be resorted to is further evident from the penal provisions of said Ordinance, reading: Any person who violates any of the provisions of this ordinance shall, upon conviction, be punished by a fine of not less than fifty pesos (P50.00) but not more than two hundred pesos (P200.00) or by imprisonment of not less than one (1) month but not exceeding six (6) months, or both, at the discretion of the Court . . . (ibid., Sec. 11). [Emphasis ours]. Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial remedies. On the contrary, the Local Government Code imposes upon him the duty "to cause to be instituted judicial proceedings in connection with the violation of ordinances" (Local Government Code, Sec. 141 [2] [t]). Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention. The provincial governor, district engineer or district health officer is not authorized to destroy private property consisting of dams and fishponds summarily and without any judicial proceedings whatever under the pretense that such private property constitutes a nuisance. A dam or a fishery constructed in navigable rivers is not a nuisance per se. A dam or fishpond may be a nuisance per accidens where it endangers or impairs the health or depreciates property by causing water to become stagnant. (Monteverde v. Generoso, supra). While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code, Sec. 149 [ee]), it can not declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination. [Municipal councils] do not have the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per se nor can they authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation or use is not such. These things must be determined in the ordinary courts of law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se. It is a legitimate industry . . . . If it be in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the board. The petitioner is entitled to a fair and impartial heating before a judicial tribunal. (Iloilo Cold Storage v. Municipal Council, 24 Phil. 47 [1913]). Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There was no compelling necessity for precipitate action. It follows then that respondent public officials of the Municipality of Isabela, Basilan, transcended their authority in abating summarily petitioner's quonset building. They had deprived petitioner of its property without due process of law. The fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by the Court of Appeals,

the demolition having been a fait accompli prior to hearing and the authority to demolish without a judicial order being a prejudicial issue. For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amount of which is for the Trial Court to determine. We are not inclined to grant petitioner damages, however, as it simply ignored the demand to remove or relocate its quonset building. WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is SET ASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and this case is ordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the determination of the just compensation due petitioner for the demolition of its quonset building. SO ORDERED. Paras, Padilla, Sarmiento and Regalado, JJ., concur. G.R. No. 148408 July 14, 2006 CONCEPCION PARAYNO, petitioner, vs. JOSE JOVELLANOS and the MUNICIPALITY OF CALASIAO, PANGASINAN,* respondents. DECISION CORONA, J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Court questioning the resolution of the Court of Appeals (CA) which dismissed the petition for certiorari, mandamus and prohibition, with prayer for issuance of a preliminary and mandatory injunction, filed by petitioner Concepcion Parayno against respondents Jose Jovellanos and the Municipality of Calasiao, Pangasinan. Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989, some residents of Calasiao petitioned the Sangguniang Bayan (SB) of said municipality for the closure or transfer of the station to another location. The matter was referred to the Municipal Engineer, Chief of Police, Municipal Health Officer and the Bureau of Fire Protection for investigation. Upon their advise, the Sangguniang Bayan recommended to the Mayor the closure or transfer of location of petitioner's gasoline station. In Resolution No. 50, it declared: a) xxx the existing gasoline station is a blatant violation and disregard of existing law to wit: The Official Zoning Code of Calasiao, Art. 6, Section 44,1 the nearest school building which is San Miguel Elementary School and church, the distances are less than 100 meters. No neighbors were called as witnesses when actual measurements were done by HLURB Staff, Baguio City dated 22 June 1989. b) The gasoline station remains in thickly populated area with commercial/residential buildings, houses closed (sic) to each other which still endangers the lives and safety of the people in case of fire. Moreover, additional selling and storing of several LPG tanks in the station (sic). c) The residents of our barangay always complain of the irritating smell of gasoline most of the time especially during gas filling which tend to expose residents especially children to frequent colds, asthma, cough and the like nowadays. d) xxx the gasoline station violated Building and Fire Safety Codes because the station has 2nd floor storey building used for business rental offices, with iron grilled windows, no firewalls. It also endangers the lives of people upstairs. e) It hampers the flow of traffic, the gasoline station is too small and narrow, the entrance and exit are closed to the street property lines. It couldn't cope situation (sic) on traffic because the place is a congested area.2 Petitioner moved for the reconsideration of the SB resolution but it was denied. Hence, she filed a special civil action for prohibition and mandamus with the Regional Trial Court (RTC) of Dagupan City, Branch 44 against respondents. The case, docketed as SP Civil Case No. 99-03010-D, was raffled to the sala of Judge Crispin Laron. Petitioner claimed that her gasoline station was not covered by Section 44 of the Official Zoning Code since it was not a "gasoline service station" but a "gasoline filling station" governed by Section 21 thereof. She added that the decision of the Housing and Land Use Regulatory Board (HLURB),3 in a previous case filed by the same respondent Jovellanos against her predecessor (Dennis Parayno), barred the grounds invoked by respondent municipality in Resolution No. 50. In the HLURB case, respondent Jovellanos opposed the establishment of the gas station on the grounds that: (1) it was within the 100-meter prohibited radius under Section 44 and (2) it posed a pernicious effect on the health and safety of the people in Calasiao. After the hearing on the propriety of issuing a writ of preliminary prohibitory and mandatory injunction, the trial court ruled: There is no basis for the court to issue a writ of preliminary prohibitory and mandatory injunction. Albeit, Section 44 of the Official Zoning Code of respondent municipality does not mention a gasoline filling station, [but] following the principle of ejusdem generis, a gasoline filling station falls within the ambit of Section 44. The gasoline filling station of the petitioner is located under the establishment belonging to the petitioner and is very near several buildings occupied by several persons. Justice dictates that the same should not be allowed to continue operating its business on that

particular place. Further, the gasoline filling station endangers the lives and safety of people because once there is fire, the establishment and houses nearby will be razed to the ground.4(emphasis supplied) Petitioner moved for reconsideration of the decision but it was denied by the trial court. Petitioner elevated the case to the CA via a petition for certiorari, prohibition and mandamus, 5 with a prayer for injunctive relief. She ascribed grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part of Judge Laron who dismissed her case. After the CA dismissed the petition, petitioner filed a motion for reconsideration but the same was denied. Hence, this appeal. Before us, petitioner insists that (1) the legal maxim of ejusdem generis did not apply to her case; (2) the closure/transfer of her gasoline filling station by respondent municipality was an invalid exercise of the latter's police powers and (3) it was the principle of res judicata that applied in this case.6 We find merit in the petition. The Principle of Ejusdem Generis We hold that the zoning ordinance of respondent municipality made a clear distinction between "gasoline service station" and "gasoline filling station." The pertinent provisions read: xxx xxx xxx Section 21. Filling Station. A retail station servicing automobiles and other motor vehicles with gasoline and oil only. 7 xxx xxx xxx Section 42. Service Station. A building and its premises where gasoline oil, grease, batteries, tires and car accessories may be supplied and dispensed at retail and where, in addition, the following services may be rendered and sales and no other. a. Sale and servicing of spark plugs, batteries, and distributor parts; b. Tire servicing and repair, but not recapping or regrooving; c. Replacement of mufflers and tail pipes, water hose, fan belts, brake fluids, light bulbs, fuses, floor mats, seat covers, windshield wipers and wiper blades, grease retainers, wheel, bearing, mirrors and the like; d. Radiator cleaning and flushing; e. Washing and polishing, and sale of automobile washing and polishing materials; f. Grease and lubricating; g. Emergency wiring repairs; h. Minor servicing of carburators; i. Adjusting and repairing brakes; j. Minor motor adjustments not involving removal of the head or crankcase, or raising the motor.8 xxx xxx xxx It is evident from the foregoing that the ordinance intended these two terms to be separate and distinct from each other. Even respondent municipality's counsel admitted this dissimilarity during the hearing on the application for the issuance of a writ of preliminary prohibitory and mandatory injunction. Counsel in fact admitted: 1. That there exist[ed] an official zoning code of Calasiao, Pangasinan which [was] not yet amended; 2. That under Article III of said official zoning code there [were] certain distinctions made by said municipality about the designation of the gasoline filling station and that of the gasoline service station as appearing in Article III, Nos. 21 and 42, [respectively]; 3. That the business of the petitioner [was] one of a gasoline filling station as defined in Article III, Section 21 of the zoning code and not as a service station as differently defined under Article 42 of the said official zoning code; 4. That under Section 44 of the official zoning code of Calasiao, the term filling station as clearly defined under Article III, Section 21, [did] not appear in the wordings thereof;9(emphasis supplied) The foregoing were judicial admissions which were conclusive on the municipality, the party making them. 10 Respondent municipality thus could not find solace in the legal maxim of ejusdem generis11 which means "of the same kind, class or nature." Under this maxim, where general words follow the enumeration of particular classes of persons or things, the general words will apply only to persons or things of the same general nature or class as those enumerated. 12 Instead, what applied in this case was the legal maxim expressio unius est exclusio alterius which means that the express mention of one thing implies the exclusion of others. 13 Hence, because of the distinct and definite meanings alluded to the two terms by the zoning ordinance, respondents could not insist that "gasoline service station" under Section 44 necessarily included "gasoline filling station" under Section 21. Indeed, the activities undertaken in a "gas service station" did not automatically embrace those in a "gas filling station." The Exercise of Police Powers Respondent municipality invalidly used its police powers in ordering the closure/transfer of petitioner's gasoline station. While it had, under RA 7160,14 the power to take actions and enact measures to promote the health and general welfare of its constituents, it should have given due deference to the law and the rights of petitioner.

A local government is considered to have properly exercised its police powers only when the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive. 15 The first requirement refers to the equal protection clause and the second, to the due process clause of the Constitution.16 Respondent municipality failed to comply with the due process clause when it passed Resolution No. 50. While it maintained that the gasoline filling station of petitioner was less than 100 meters from the nearest public school and church, the records do not show that it even attempted to measure the distance, notwithstanding that such distance was crucial in determining whether there was an actual violation of Section 44. The different local offices that respondent municipality tapped to conduct an investigation never conducted such measurement either. Moreover, petitioner's business could not be considered a nuisance which respondent municipality could summarily abate in the guise of exercising its police powers. The abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property, 17 hence, it cannot be closed down or transferred summarily to another location. As a rule, this Court does not pass upon evidence submitted by the parties in the lower courts. 18 We deem it necessary, however, to recall the findings of the HLURB which petitioner submitted as evidence during the proceedings before the trial court, if only to underscore petitioner's compliance with the requirements of law before she put up her gasoline station. Another factor that should not be left unnoticed is the diligence exercised by [petitioner] in complying with the requirements of the several laws prior to the actual implementation of the project as can be attested by the fact that [petitioner] has secured the necessary building permit and approval of [her] application for authority to relocate as per the letter of the Energy Regulatory Board xxx. 19 On the alleged hazardous effects of the gasoline station to the lives and properties of the people of Calasiao, we again note: Relative to the allegations that the project (gasoline station) is hazardous to life and property, the Board takes cognizance of the respondent's contention that the project "is not a fire hazard since petroleum products shall be safely stored in underground tanks and that the installation and construction of the underground tanks shall be in accordance with the Caltex Engineering Procedures which is true to all gasoline stations in the country. xxx Hence, the Board is inclined to believe that the project being hazardous to life and property is more perceived than factual. For, after all, even the Fire Station Commander, after studying the plans and specifications of the subject proposed construction, recommended on 20 January 1989, "to build such buildings after conform (sic) all the requirements of PP 1185." It is further alleged by the complainants that the proposed location is "in the heart of the thickly populated residential area of Calasiao." Again, findings of the [HLURB] staff negate the allegations as the same is within a designated Business/Commercial Zone per the Zoning Ordinance. xxx20 (emphasis supplied) The findings of fact of the HLURB are binding as they are already final and conclusive vis--vis the evidence submitted by respondents. The Principle of Res Judicata Petitioner points out that the HLURB decision in the previous case filed against her predecessor (Dennis Parayno) by respondent Jovellanos had effectively barred the issues in Resolution No. 50 based on the principle of res judicata. We agree. Res judicata refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on all points and matters determined in the former suit. 21 For res judicata to apply, the following elements must be present: (1) the judgment or order must be final; (2) the judgment must be on the merits; (3) it must have been rendered by a court having jurisdiction over the subject matter and the parties and (4) there must be, between the first and second actions, identity of parties, of subject matter and of cause of action.22 Respondent municipality does not contest the first, second and third requisites. However, it claims that it was not a party to the HLURB case but only its co-respondent Jovellanos, hence, the fourth requisite was not met. The argument is untenable. The absolute identity of parties is not required for the principle of res judicata to apply.23 A shared identity of interests is sufficient to invoke the application of this principle.24 The proscription may not be evaded by the mere expedient of including an additional party. 25 Res judicata may lie as long as there is a community of interests between a party in the first case and a party in the second case although the latter may not have been impleaded in the first.26 In the assailed resolution of respondent municipality, it raised the same grounds invoked by its co-respondent in the HLURB: (1) that the resolution aimed to close down or transfer the gasoline station to another location due to the alleged violation of Section 44 of the zoning ordinance and (2) that the hazards of said gasoline station threatened the health and safety of the public. The HLURB had already settled these concerns and its adjudication had long attained finality. It is to the interest of the public that there should be an end to litigation by the parties over a subject matter already fully and fairly adjudged. Furthermore, an individual should not be vexed twice for the same cause. 27

WHEREFORE, the petition is hereby GRANTED. The assailed resolution of the Court of the Appeals is REVERSED and SET ASIDE. Respondent Municipality of Calasiao is hereby directed to cease and desist from enforcing Resolution No. 50 against petitioner insofar as it seeks to close down or transfer her gasoline station to another location. No costs. SO ORDERED. Puno, Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, J.J., concur. G.R. No. 148339 February 23, 2005 LUCENA GRAND CENTRAL vs. JAC LINER, INC., Respondent. DECISION

TERMINAL,

INC.,

petitioner,

CARPIO MORALES, J.: Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes to and from Lucena City, assailed, via a petition for prohibition and injunction1 against the City of Lucena, its Mayor, and the Sangguniang Panlungsod of Lucena before the Regional Trial Court (RTC) of Lucena City, City Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that, inter alia, the same constituted an invalid exercise of police power, an undue taking of private property, and a violation of the constitutional prohibition against monopolies. The salient provisions of the ordinances are: Ordinance No. 16312 AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A COMMON BUS-JEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA xxx SECTION 1. There is hereby granted to the Lucena Grand Central Terminal, Inc., its successors or assigns, hereinafter referred to as the "grantee", a franchise to construct, finance, establish, operate, and maintain a common bus-jeepney terminal facility in the City of Lucena. SECTION 2. This franchise shall continue for a period of twenty-five years, counted from the approval of this Ordinance, and renewable at the option of the grantee for another period of twenty-five (25) years upon such expiration. xxx SECTION 4. Responsibilities and Obligations of the City Government of Lucena. During the existence of the franchise, the City Government of Lucena shall have the following responsibilities and obligations: xxx (c) It shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or jeepney terminal. xxx Ordinance No. 17783 AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL BUSES, MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS PURPOSE, AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO. 1557, SERIES OF 1995 xxx SECTION 1. The entrance to the City of Lucena of all buses, mini-buses and out-of-town passenger jeepneys is hereby regulated as follows: (a) All buses, mini-buses and out-of-town passenger jeepneys shall be prohibited from entering the city and are hereby directed to proceed to the common terminal, for picking-up and/or dropping of their passengers. (b) All temporary terminals in the City of Lucena are hereby declared inoperable starting from the effectivity of this ordinance. xxx SECTION 3. a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows: Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local government units going to Lucena City are directed to proceed to the Common Terminal located at Diversion Road, Brgy. Ilayang Dupay, to unload and load passengers. xxx c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows: Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities and/or local government units shall utilize the facilities of the Lucena Grand Central Terminal at Diversion Road, Brgy. Ilayang Dupay, this City, and no other terminals shall be situated inside or within the City of Lucena; d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows: Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities and/or local government units shall avail of the facilities of the Lucena Grand Central Terminal which is hereby designated as the officially sanctioned common terminal for the City of Lucena;

e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows: The Lucena Grand Central Terminal is the permanent common terminal as this is the entity which was given the exclusive franchise by the Sangguniang Panglungsod under Ordinance No. 1631; (Emphasis and underscoring supplied) These ordinances, by granting an exclusive franchise for twenty five years, renewable for another twenty five years, to one entity for the construction and operation of one common bus and jeepney terminal facility in Lucena City, to be located outside the city proper, were professedly aimed towards alleviating the traffic congestion alleged to have been caused by the existence of various bus and jeepney terminals within the city, as the "Explanatory Note"-Whereas Clause adopting Ordinance No. 1778 states: WHEREAS, in line with the worsening traffic condition of the City of Lucena, and with the purpose of easing and regulating the flow of the same, it is imperative that the Buses, Mini-Buses and out-of-town jeepneys be prohibited from maintaining terminals within the City, but instead directing to proceed to the Lucena Grand Central Terminal for purposes of picking-up and/or dropping off their passengers; 4 Respondent, who had maintained a terminal within the city, was one of those affected by the ordinances. Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the grantee of the exclusive franchise for the operation of the common terminal,5 was allowed to intervene in the petition before the trial court. In the hearing conducted on November 25, 1998, all the parties agreed to dispense with the presentation of evidence and to submit the case for resolution solely on the basis of the pleadings filed.6 By Order of March 31, 1999,7 Branch 54 of the Lucena RTC rendered judgment, the dispositive portion of which reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered, as follows: 1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of the police power of the City Government of Lucena insofar as the grant of franchise to the Lucena Grand Central Terminal, Inc., to construct, finance, establish, operate and maintain common bus-jeepney terminal facility in the City of Lucena; 2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the effect that the City Government shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or jeepney terminal, as illegal and ultra vires because it contravenes the provisions of Republic Act No. 7160, otherwise known as "The Local Government Code"; 3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra vires act of the City Government of Lucena arising from an invalid, oppressive and unreasonable exercise of the police power, more specifically, declaring illegal [sections 1(b), 3(c) and 3(e)]; 4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the respondents public officials, the City Mayor and the Sangguniang Panglungsod of Lucena, to cease and desist from implementing Ordinance No. 1778 insofar as said ordinance prohibits or curtails petitioner from maintaining and operating its own bus terminal subject to the conditions provided for in Ordinance No. 1557, Sec. 3, which authorizes the construction of terminal outside the poblacion of Lucena City; and likewise, insofar as said ordinance directs and compels the petitioner to use the Lucena Grand Central Terminal Inc., and furthermore, insofar as it declares that no other terminals shall be situated, constructed, maintained or established inside or within the City of Lucena; and furthermore, 5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal Inc., dated October 19, 1998, is hereby DENIED for lack of merit. SO ORDERED. (Emphasis and underscoring supplied)8 Petitioners Motion for Reconsideration9 of the trial courts order having been denied by Order of August 6, 1999, 10 it elevated it via petition for review under Rule 45 before this Court. 11 This Court, by Resolution of November 24, 1999, 12 referred the petition to the Court of Appeals with which it has concurrent jurisdiction, no special and important reason having been cited for it to take cognizance thereof in the first instance. By Decision of December 15, 2000,13 the appellate court dismissed the petition and affirmed the challenged orders of the trial court. Its motion for reconsideration14 having been denied by the appellate court by Resolution dated June 5, 2001, 15 petitioner once again comes to this Court via petition for review,16 this time assailing the Decision and Resolution of the Court of Appeals. Decision on the petition hinges on two issues, to wit: (1) whether the trial court has jurisdiction over the case, it not having furnished the Office of the Solicitor General copy of the orders it issued therein, and (2) whether the City of Lucena properly exercised its police power when it enacted the subject ordinances. Petitioner argues that since the trial court failed to serve a copy of its assailed orders upon the Office of the Solicitor General, it never acquired jurisdiction over the case, it citing Section 22, Rule 3 of the Rules which provides: SEC. 22. Notice to the Solicitor General.In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court in its discretion, may require the appearance of the Solicitor General who may be heard in person or

through representative duly designated by him. (Emphasis and underscoring supplied) Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively provide: SEC. 3. Notice on Solicitor General. In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question. SEC. 4. Local government ordinances. In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local government unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard . (Emphasis and underscoring supplied) Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor General about the action is a jurisdictional defect. In fact, Rule 3, Section 22 gives the courts in any action involving the "validity" of any ordinance, inter alia, "discretion" to notify the Solicitor General. Section 4 of Rule 63, which more specifically deals with cases assailing the constitutionality, not just the validity, of a local government ordinance, directs that the Solicitor General "shall also be notified and entitled to be heard." Who will notify him, Sec. 3 of the same rule provides it is the party which is assailing the local governments ordinance. More importantly, however, this Court finds that no procedural defect, fatal or otherwise, attended the disposition of the case. For respondent actually served a copy of its petition upon the Office of the Solicitor General on October 1, 1998 , two days after it was filed. The Solicitor General has issued a Certification to that effect.17 There was thus compliance with above-quoted rules. Respecting the issue of whether police power was properly exercised when the subject ordinances were enacted: As with the State, the local government may be considered as having properly exercised its police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise stated, there must be a concurrence of a lawful subject and lawful method.18 That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. In Calalang v. Williams19 which involved a statute authorizing the Director of Public Works to promulgate rules and regulations to regulate and control traffic on national roads, this Court held: In enacting said law, therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations.20 (Emphasis supplied) The questioned ordinances having been enacted with the objective of relieving traffic congestion in the City of Lucena, they involve public interest warranting the interference of the State. The first requisite for the proper exercise of police power is thus present. Respondents suggestion to have this Court look behind the explicit objective of the ordinances which, to it, was actually to benefit the private interest of petitioner by coercing all bus operators to patronize its terminal does not lie. 21 Lim v. Pacquing22 instructs: . . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a select group which was later given authority to operate the jai-alai under PD No. 810. The examination of legislative motivation is generally prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438 [1971] per Black, J.) There is, in the first place, absolute lack of evidence to support ADCs allegation of improper motivation in the issuance of PD No. 771. In the second place, as already averred, this Court cannot go behind the expressed and proclaimed purposes of PD No. 771, which are reasonable and even laudable. (Underscoring supplied)23 This leaves for determination the issue of whether the means employed by the Lucena Sangguniang Panlungsod to attain its professed objective were reasonably necessary and not unduly oppressive upon individuals. With the aim of localizing the source of traffic congestion in the city to a single location, 24 the subject ordinances prohibit the operation of all bus and jeepney terminals within Lucena, including those already existing, and allow the operation of only one common terminal located outside the city proper, the franchise for which was granted to petitioner. The common carriers plying routes to and from Lucena City are thus compelled to close down their existing terminals and use the facilities of petitioner. In De la Cruz v. Paras,25 this Court declared unconstitutional an ordinance characterized by overbreadth. In that case, the Municipality of Bocaue, Bulacan prohibited the operation of all night clubs, cabarets and dance halls within its jurisdiction for the protection of public morals. Held the Court: It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable restrictions rather than by an absolute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation." It is clear that in the

guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein employed. (Underscoring supplied)26 In Lupangco v. Court of Appeals,27 this Court, in declaring unconstitutional the resolution subject thereof, advanced a similar consideration. That case involved a resolution issued by the Professional Regulation Commission which prohibited examinees from attending review classes and receiving handout materials, tips, and the like three days before the date of examination in order to preserve the integrity and purity of the licensure examinations in accountancy. Besides being unreasonable on its face and violative of academic freedom, the measure was found to be more sweeping than what was necessary, viz: Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged leakages in the licensure examinations will be eradicated or at least minimized. Making the examinees suffer by depriving them of legitimate means of review or preparation on those last three precious days when they should be refreshing themselves with all that they have learned in the review classes and preparing their mental and psychological make-up for the examination day itself would be like uprooting the tree to get rid of a rotten branch. What is needed to be done by the respondent is to find out the source of such leakages and stop it right there. If corrupt officials or personnel should be terminated from their loss, then so be it. Fixers or swindlers should be flushed out. Strict guidelines to be observed by examiners should be set up and if violations are committed, then licenses should be suspended or revoked. x x x (Emphasis and underscoring supplied)28 As in De la Cruz29 and Lupangco,30 the ordinances assailed herein are characterized by overbreadth. They go beyond what is reasonably necessary to solve the traffic problem. Additionally, since the compulsory use of the terminal operated by petitioner would subject the users thereof to fees, rentals and charges, such measure is unduly oppressive, as correctly found by the appellate court. 31 What should have been done was to determine exactly where the problem lies and then to stop it right there. The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights. (Underscoring supplied) 32 A due deference to the rights of the individual thus requires a more careful formulation of solutions to societal problems. From the memorandum33 filed before this Court by petitioner, it is gathered that the Sangguniang Panlungsod had identified the cause of traffic congestion to be the indiscriminate loading and unloading of passengers by buses on the streets of the city proper, hence, the conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the city streets. Bus terminals per se do not, however, impede or help impede the flow of traffic. How the outright proscription against the existence of all terminals, apart from that franchised to petitioner, can be considered as reasonably necessary to solve the traffic problem, this Court has not been enlightened. If terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the streets instead of inside the terminals, then reasonable specifications for the size of terminals could be instituted, with permits to operate the same denied those which are unable to meet the specifications. In the subject ordinances, however, the scope of the proscription against the maintenance of terminals is so broad that even entities which might be able to provide facilities better than the franchised terminal are barred from operating at all. Petitioner argues, however, that other solutions for the traffic problem have already been tried but proven ineffective. But the grant of an exclusive franchise to petitioner has not been shown to be the only solution to the problem. While the Sangguniang Panlungsod, via Ordinance No. 1557, 34 previously directed bus owners and operators to put up their terminals "outside the poblacion of Lucena City," petitioner informs that said ordinance only resulted in the relocation of terminals to other wellpopulated barangays, thereby giving rise to traffic congestion in those areas. 35 Assuming that information to be true, the Sangguniang Panlungsod was not without remedy. It could have defined, among other considerations, in a more precise manner, the area of relocation to avoid such consequences. As for petitioners argument that the challenged ordinances were enacted pursuant to the power of the Sangguniang Panlungsod to "[r]egulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon and, when necessary in the interest of public welfare, authorize the removal of encroachments and illegal constructions in public places": 36 Absent any showing, nay allegation, that the terminals are encroaching upon public roads, they are not obstacles. The buses which indiscriminately load and unload passengers on the city streets are. The power then of the Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend to terminals.1a\^/phi1.net Neither are terminals public nuisances as petitioner argues. For their operation is a legitimate business which, by itself, cannot be said to be injurious to the rights of property, health, or comfort of the community. But even assuming that terminals are nuisances due to their alleged indirect effects upon the flow of traffic, at most they are nuisance per accidens, not per se.

Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without judicial proceedings, as was done in the case at bar. In Estate of Gregoria Francisco v. Court of Appeals,37 this Court held: Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention.l^vvphi1.net (Underscoring supplied)381awphi1.nt In Pampanga Bus Co., Inc. v. Municipality of Tarlac 39 where the appellant-municipality similarly argued that the terminal involved therein is a nuisance that may be abated by the Municipal Council via an ordinance, this Court held: "Suffice it to say that in the abatement of nuisances the provisions of the Civil Code (Articles 694-707) must be observed and followed. This appellant failed to do." As for petitioners claim that the challenged ordinances have actually been proven effective in easing traffic congestion: Whether an ordinance is effective is an issue different from whether it is reasonably necessary. It is its reasonableness, not its effectiveness, which bears upon its constitutionality. If the constitutionality of a law were measured by its effectiveness, then even tyrannical laws may be justified whenever they happen to be effective. The Court is not unaware of the resolutions of various barangays in Lucena City supporting the establishment of a common terminal, and similar expressions of support from the private sector, copies of which were submitted to this Court by petitioner. The weight of popular opinion, however, must be balanced with that of an individuals rights. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right. 40 WHEREFORE, the petition is hereby DENIED. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. iii iv v vi vii viii ix x xi xii xiii xiv xv xvi xvii xviii xix xx