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Republic of the Philippines


G.R. No. 75723 June 2, 1995
SIMEON FLORO, petitioner,
ORLANDO A. LLENADO (Dee!"e#$, "u%"&'&u&e# %( )'" *'+e ,ENIFREDA T. LLENADO,
'n )e- o*n %e)!.+ !" A#/'n'"&-!&-'0 o+ &)e E"&!&e o+ O-.!n#o A. L.en!#o !n# !" Le1!.
Gu!-#'!n o+ M'no-" M!. 2e0'n!, A3e.'no !n# An&on'o, !.. "u-n!/e# L.en!#o, !n# &)e
COURT OF APPEALS, respondents.

The instant petition for revie on certiorari presents to !"# issues for resolution, na$el%& !'#
hether or not a valid contract of ease$ent of ri(ht of a% e)ists hen the oner of one estate
voluntaril% allos the oner of an ad*acent estate passa(e throu(h his propert% for a li$ited ti$e,
ithout co$pensation+ and, !"# hether or not an oner,developer of a subdivision can de$and a
co$pulsor% ease$ent of ri(ht of a% over the e)istin( roads of an ad*acent subdivision instead of
developin( his subdivision-s proposed access road as provided in his dul% approved subdivision
Si$eon .loro is the oner of a piece of land /non as the .loro Par/ Subdivision situated in
0aran(a% Salu%so%, Me%caua%an, 0ulacan. 1 The subdivision has its on e(ress and in(ress to and
fro$ the Mac1rthur Hi(ha% b% $eans of its Road 2ot 3 and the PNR level crossin(.
Orlando 1. 2lenado, 2 on the other hand, as the re(istered oner of to !"# parcels of land, ith a
total area of 43,564 s7. $eters, $ore or less, 3 /non as the 2lenado Ho$es Subdivision !82lenado
Ho$es,8 for brevit%#. Prior to its purchase b% 2lenado fro$ the oner .rancisco de 9astro, the land
as /non as the :$$anuel Ho$es Subdivision, a dul% licensed and re(istered housin( subdivision in
the na$e of Soledad Orte(a. 4 0ounded on the South b% the 5 to ; $eter<ide Palanas 9ree/, 5 hich
separates it fro$ the .loro Par/ Subdivision, and on the est b% ricelands belon(in( to Marcial Ipapo,
Montaos and =uevarra, the 2lenado Ho$es does not have an% e)istin( road or passa(e to the
Mac1rthur Hi(ha%. Hoever, a proposed access road traversin( the idle riceland of Marcial Ipapo
has been specificall% provided in the subdivision plan of the :$$anuel Ho$es Subdivision, hich as
dul% approved b% the defunct Hu$an Settle$ent Re(ulator% 9o$$ission !no Housin( and 2and >se
Re(ulator% 0oard#. 5
So$eti$e in .ebruar%, '?@4, the 2lenados sou(ht, and ere (ranted, per$ission b% the .loros to
use Road 2ots 3 and 5 of the .loro Par/ Subdivision as passa(ea% to and fro$ Mac1rthur
Hi(ha%. On 1pril 6, '?@4, hoever, .loro barricaded Road 2ot 5 ith a pile of roc/s, ooden
posts and adobe stones, thereb% preventin( its use b% the 2lenados.
Their re7uest for the reopenin( of Road 2ot 5 havin( been denied, Orlando 2lenado instituted on
1pril '4, '?@4, a co$plaint before the Re(ional Trial 9ourt !RT9# of Malolos, 0ulacan, a(ainst
Si$eon .loro for :ase$ent of Ri(ht of Aa% ith Pra%er for the Issuance of a Arit of Preli$inar%
Mandator% In*unction and Da$a(es. The co$plaint as doc/eted as 9ivil 9ase No. ;@43<M and
raffled off to 0ranch BIB, presided over b% Hon. Cud(e 9a$ilo Montesa.
1fter hearin( and ocular inspection, the trial court, in an order dated Cul% '5, '?@4, 7 (ranted the
pra%er for the issuance of a rit of preli$inar% $andator% in*unction upon the filin( of a bond b%
2lenado in the a$ount of one hundred thousand pesos !P'DD,DDD.DD#. .loro as ordered&
'. To open the road b% re$ovin( the roc/s and ooden posts and,or to re$ove
the barricade on the sub*ect road of the .loro Par/ Subdivision and en*oinin( hi$
and an% person or persons under hi$ fro$ doin( or perfor$in( an% act or acts
hich ill prevent !22:N1DO# or his a(ents or an% person actin( under
!22:N1DO-s# instructions fro$ passin( throu(h the sub*ect subdivision road to
(et into and to (et out of the afore$entioned properties of !22:N1DO# until
further order fro$ this 9ourt.
.loro $oved for reconsideration but as denied the relief sou(ht. 6 He then filed ith the 9ourt of
1ppeals a petition forcertiorari and prohibition ith petition for a rit of preli$inar% in*unction and
restrainin( order, but later on, $oved to ithdra his petition. His $otion for ithdraal as (ranted
b% the appellate court in its Resolution dated March 4D, '?@3 hich declared the case closed and
ter$inated. 9
In the $eanti$e, Orlando 2lenado died and as substituted b% his ife Aenifreda T. 2lenado as
ad$inistratri) of his estate and its le(al (uardian of their four !3# $inor children. 17 Trial on the
$erits of the case hich as suspended pendin( resolution of the petition before the 9ourt of 1ppeals,
On October ';, '?@3, the trial court rendered *ud($ent dis$issin( the case and liftin( the rit of
preli$inar% $andator% in*unction previousl% issued. The dispositive portion of the
decision 11 reads&
AH:R:.OR:, *ud($ent is hereb% rendered dis$issin( the instant co$plaint for
lac/ of $erit, and the rit of preli$inar% $andator% in*unction issued in favor of
the plaintiff is hereb% ordered dissolved and,or lifted. On the counterclai$ posed
b% defendant, the plaintiff is hereb% ordered to pa% defendant the folloin(
a. P4D,DDD.DD as actual da$a(es suffered b% defendant+
b. P66,5DD.DD as co$pensation for the use of defendant-s
c. P'5,DDD.DD as attorne%-s fees+ and,
d. To pa% the costs of the suit.
On appeal b% 2lenado, the appellate court set aside the decision of the trial court in a
decision 12 pro$ul(ated on .ebruar% '', '?@;, the dispositive portion of hich reads as follos&
AH:R:.OR:, pre$ises considered, the decision appealed fro$ is hereb% S:T
1SID: and another one entered&
!'# =rantin( the establish$ent of a le(al or co$pulsor% ease$ent of ri(ht of a%
passin( throu(h Road 2ots 3 and 5 of defendant-s .loro Par/ Subdivision in favor
of plaintiff-s 2lenado Ho$es Subdivision+
!"# Orderin( defendant to re$ove i$$ediatel% all of the obstructions, such as
alls, roc/s and posts ith hich he had barricaded Road 2ot 5 for the purpose
of preventin( plaintiff fro$ usin( defendant-s subdivision as passa(e a% to the
Mac1rthur Hi(ha%+
!4# Orderin( defendant to pa% to plaintiff, upon finalit% of this decision, the
!a# P;D,DDD.DD E te$perate or $oderate da$a(es
!b# P'DD,DDD.DD E $oral da$a(es+ and
!c# P4D,DDD.DD E attorne%-s fees+
!3# Orderin( plaintiff to pa% to defendant the a$ount of P;D,DDD.DD ithin ten
!'D# da%s fro$ the date of finalit% of this decision as inde$nit% for the ri(ht of
a% pursuant to the $andate of 1rticle ;3? of the 9ivil 9ode+ and
!5# Orderin( defendant to pa% the costs.
The liabilit% of the defendant under No. !4# !supra# shall be le(all% co$pensated
b% the liabilit% of the plaintiff under No. !3# !supra# auto$aticall% to the e)tent
that the a$ount of one is covered b% the a$ount of the other.
On 1u(ust '3, '?@;, the appellate court in separate resolutions denied .loro-s $otion for
reconsideration and supple$entar% $otion 13 and (ranted 2lenado-s $otion for partial e)ecution
pendin( appeal. 14 The latter resolution provided in its dispositive portion, thus&
AH:R:.OR:, upon the postin( b% plaintiff<appellant of a bond in the a$ount
of ON: H>NDR:D THO>S1ND P:SOS !P'DD,DDD.DD# approved b% this
9ourt, let a rit of partial e)ecution pendin( appeal be issued orderin( the
defendant<appellee to re$ove i$$ediatel% all of the obstructions, includin( all
alls, roc/s, posts, and other $aterials ith hich he has barricaded Road 2ot 5,
for the purpose of preventin( plaintiff<appellant fro$ usin( defendant-s
subdivision as passa(e a% to the Mac1rthur Hi(ha%. Said Order shall include
Road 2ot 3 so that plaintiff<appellant ill have free access to Mac1rthur
The rit of partial e)ecution pendin( appeal as issued on October ", '?@; after the instant
Petition had been filed and after the 9ourt had resolved on Septe$ber '5, '?@; to re7uire 2lenado
to co$$ent thereon. On $otion of .loro, the 9ourt issued a restrainin( order on October "?,
'?@;, 15 en*oinin( the appellate court fro$ carr%in( out its rit of partial e)ecution pendin( appeal.
Subse7uentl%, the instant petition as (iven due course. 15
In a petition to revie a decision of the 9ourt of 1ppeals under Rule 35 of the Rules of 9ourt, the
*urisdiction of the court is ordinaril% confined to reviein( errors of la co$$itted b% the 9ourt
of 1ppeals, its findin(s of fact bein( conclusive on the 9ourt. 17 There are, hoever, e)ceptional
circu$stances that ould co$pel the 9ourt to revie the findin(s of fact of the 9ourt of 1ppeals,
su$$ariFed in Remalante v. Tibe 16 and subse7uent cases 19 as follos& !'# hen the inference $ade
is $anifestl% $ista/en, absurd or i$possible+ !"# hen there is a (rave abuse of discretion+ !4# hen
the findin( is (rounded entirel% on speculations, sur$ises or con*ectures+ !3# hen the *ud($ent of the
9ourt of 1ppeals is based on $isapprehension of facts+ !5# hen the findin(s of fact are conflictin(+ !;#
hen the 9ourt of 1ppeals in $a/in( its findin(s ent be%ond the issues of the case and the sa$e is
contrar% to the ad$issions of both appellant and appellee+ !6# hen the findin(s of the 9ourt of
1ppeals are contrar% to those of the trial court+ !@# hen the findin(s of fact are conclusions ithout
citation of specific evidence on hich the% are based+ !?# hen the 9ourt of 1ppeals $anifestl%
overloo/ed certain relevant facts not disputed b% the parties and hich, if properl% considered, ould
*ustif% a different conclusion+ and, !'D# hen the findin(s of fact of the 9ourt of 1ppeals are pre$ised
on the absence of evidence and are contradicted b% the evidence on record.
The findin(s and conclusions of the 9ourt of 1ppeals, bein( contrar% to the findin(s and
conclusions of the trial court, the instant case falls ithin the e)ception. Thus, the 9ourt $a%
scrutiniFe the evidence on the record to brin( to li(ht the real facts of the case. 27
It is not disputed that so$eti$e in .ebruar% '?@4, .loro (ranted the 2lenados verbal per$ission to
pass throu(h the .loro Par/ Subdivision in (oin( to and fro$ the Mac1rthur Hi(ha%. Ahether
such per$ission, as clai$ed b% .loro, as for the $onth of March onl%, ithout co$pensation
and as a nei(hborl% (esture for the purpose $erel% of enablin( the 2lenados to install stone
$onu$ents !$o*ones# on their land, 21 or as in relation to the ease$ent of ri(ht of a% (ranted in
their favor, as insisted b% the 2lenados, 22 the fact re$ains that no such contract of ease$ent of ri(ht of
a% as actuall% perfected beteen .loro and 2lenado. 0oth Orlando 23 and Aenifreda
2lenado 24 testified that the conditions of the ease$ent of ri(ht of a% ere still to be dran up b%
.loro-s la%er. Thus, no co$pensation as a(reed upon, and none as paid, for the passa(e throu(h
.loro-s propert% durin( the $onth of March. 25
Hoever, hen Aenifreda sa .loro in the evenin( of 1pril 6, '?@4 to ne(otiate for the reopenin(
of Road 2ot 5 and .loro laid don his
conditions 25 for the re7uested reopenin( and presu$abl% for the re7uested ease$ent of ri(ht of a%,
Orlando re*ected said conditions for bein( onerous. 27
In Dionisio v. Ortiz, 26 here therein private respondents clai$ed to have ever% ri(ht to use Ho$art
Road as passa(ea% to :DS1 b% reason of a standin( oral contract of ease$ent of ri(ht of a% ith
therein petitioner, so that the latter did not have the ri(ht to put a barricade in front of private
respondents- (ate and to stop the$ fro$ usin( said (ate as passa(ea% to Ho$art Road, the 9ourt
There is no 7uestion that a ri(ht of a% as (ranted in favor of the private
respondents over Ho$art Road but the records disclose that such ri(ht of a%
e)pired in Dece$ber '?@@. The continued use of the ease$ent en*o%ed b%
G9I:1 includin( the private respondents is b% the $ere tolerance of the oner
pendin( the rene(otiation of the ter$s and conditions of said ri(ht of a%. . . .
1bsent an a(ree$ent of the parties as to the consideration, a$on( others, no
contract of ease$ent of ri(ht of a% has been validl% entered into b% the
petitioners and G9I:1. Thus the private respondents- clai$ of an ease$ent of
ri(ht of a% over Ho$art Road has no le(al or factual basis.
1s in the Dionisio case, the use of Road 2ots 3 and 5 b% the 2lenados durin( the $onth of March
as b% $ere tolerance of .loro pendin( the ne(otiation of the ter$s and conditions of the ri(ht of
a%. This is evident fro$ the testi$on% of Aenifreda that 8the% said to us to (o on hile the% are
preparin( for the papers8 and that 8e can use that for a hile, hile the% ere $a/in( for the
papers.8 29 1lthou(h such use as in anticipation of a voluntar% ease$ent of ri(ht of a%, no such
contract as validl% entered into b% reason of the failure of the parties to a(ree on its ter$s and
conditions. Thus, private respondents 2lenados cannot clai$ entitle$ent to a ri(ht of a% throu(h the
.loro Par/ Subdivision on the basis of a voluntar% ease$ent.
Havin( ruled that no voluntar% ease$ent of ri(ht of a% had been established in favor of private
respondents 2lenados, e no deter$ine hether or not the% are entitled to a co$pulsor%
ease$ent of ri(ht of a%.
.or the 2lenados to be entitled to a co$pulsor% servitude of ri(ht of a% under the 9ivil 9ode, the
preconditions provided under 1rticles ;3? and ;5D thereof $ust be established. These
preconditions are& !'# that the do$inant estate is surrounded b% other i$$ovables and has no
ade7uate outlet to a public hi(ha% !1rt. ;3?, par. '#+ !"# after pa%$ent of proper inde$nit% !1rt.
;3?, par. '#+ !4# that the isolation as not due to acts of the proprietor of the do$inant estate !1rt.
;3?, last par.#+ and, !3# that the ri(ht of a% clai$ed is at the point least pre*udicial to the servient
estate+ and insofar as consistent ith this rule, here the distance fro$ the do$inant estate to a
public hi(ha% $a% be the shortest !1rt. ;5D#. 37
The burden of provin( the e)istence of the prere7uisites to validl% clai$ a co$pulsor% ri(ht of
a% lies on the oner of the do$inant estate. 31 Ae find that private respondents have failed in this
Si(nificantl%, hen Orlando 2lenado filed the co$plaint for le(al ease$ent under 1rticles ;3? and
;5D of the 9ivil 9ode, he focused his ar(u$ent on the absence of an% road, other than the closed
road of the .loro Par/ Subdivision, as his $eans of in(ress and e(ress to and fro$ his propert%.
Hoever, he o$itted to state that there is a proposed access road throu(h the Ipapo propert%.
Danilo Ravello, an en(ineer e$plo%ed as Pro*ect Officer of the Hu$an Settle$ent Re(ulator%
9o$$ission !HSR9# since '?@', testified that his duties consisted in evaluatin( and processin(
subdivision plans and $a/in( the proper reco$$endation for their approval or disapproval. The
application of Soledad Orte(a for the :$$anuel Ho$es Subdivision, 32 appearin( on pa(e '"D of
the records of the HSR9, had the folloin( attach$ents& !'# S/etch Plan of the propert% containin( an
area of 43,?64 s7. $.+ 33 !"# Aaterline 2a%out
Plan+ 34 !4# Vicinit% Plan+ 35 !3# Road Plan 2a%out+ 35 and !5# 9onsolidation Subdivision
Plan. 37 1ccordin( to Ravello, as per Plans :)hs. 8'D<18 and 8'D<98, Road 2ot 4 of the :$$anuel
Ho$es Subdivision starts and ends ith ad*acent properties+ on one end, the propert% oned b%
Mariano Monadero and at the other, the propert% oned b% a certain Ventura Tan Mariano. 1s per
Plans, the access road to the subdivision should have co$e fro$ the Mac1rthur Hi(ha% throu(h the
Ipapo propert%. 36 Havin( found on ocular inspection that the access road indicated in the Plan did not
actuall% e)ist, the HSR9 re7uired applicant Soledad Orte(a to sub$it a ritten ri(ht of a% clearance
fro$ Ipapo, hich she did and on the basis of hich, her application on behalf of the :$$anuel
Ho$es Subdivision as approved. 39
Ahen Orlando 2lenado ac7uired the sub*ect propert%, he adopted the subdivision plans of
:$$anuel Ho$es and rena$ed it as the 2lenado Ho$es Subdivision. 1ccordin(l%, he applied for
the issuance of a ne Develop$ent Per$it and 2icense to Sell in his na$e as the ne oner of
the subdivision. Subse7uentl%, the correspondin( license to sell and develop$ent per$it ere
issued. 1s shon b% the 9onsolidation Subdivision Plan 47 sub$itted b% Orlando 2lenado, the
na$es Soledad Orte(a,:$$anuel Ho$es Subdivision ere $erel% crossed out and, in lieu thereof, the
na$es Orlando 2lenado,2lenado Ho$es Subdivision ere ritten. In said subdivision plan hich as
dul% approved b% the HSR9, the Ipapo 1ccess Road as retained.
On Cul% ', '?@4, durin( the pendenc% of 9ivil 9ase No. ;@43<M, Orlando 2lenado filed ith the
HSR9 an application for the a$end$ent of the ori(inal 9onsolidation Subdivision Plan of the
2lenado Ho$es
Subdivision. 41 The proposed a$end$ents, as indicated in :)h. 8''<18, 42 ere& !'# the conversion of
2ot '3 of 0loc/ ; into a road lot, desi(ned to connect ith Road 2ot 5 of the .loro Ho$es Subdivision+
and, !"# the closin( of both ends of Road 2ot 4, the portion leadin( to the Ventura Tan Mariano
propert% and the portion leadin( to the Ipapo ri(ht of a% !1driano Monadero propert%#, to be
converted into saleable residential lots. The first proposed alteration, the conversion of 2ot '3, 0loc/ ;
into a road lot as approved on March "D,
'?@3. 43 The access road of the 2lenado Ho$es Subdivision, hoever, re$ained in the Subdivision
Plan to be throu(h the Ipapo propert%, as approved b% the HSR9.
Ahen as/ed b% the court as to the polic% of the HSR9 re(ardin( the approval of a subdivision
plan in connection ith the ri(ht of a% issue, :n(r. Ravello responded that as a prere7uisite for
approval, the subdivision $ust have an access road. It as not necessar% that the access road be a
paved road. 1 dirt road as sufficient provided that the oner of the lot used as access road (ives
his consent and the oner,developer,applicant of the proposed subdivision develops the proposed
access road, 44 as approved b% the HSR9, in co$pliance ith Section "? of Presidential Decree No.
?56 hich states&
Sec. "?. Right of way to Public Road. E The oner or developer of a subdivision
ithout access to an% e)istin( public road or street $ust secure a ri(ht of a% to
a public road or street and such ri(ht of a% $ust be developed and $aintained
accordin( to the re7uire$ent of the (overn$ent authorities concerned.
On appeal to the court of 1ppeals, private respondents 2lenado sub$itted a letter of Marcial Ipapo
dated Cul% 4, '?@5 addressed to the
HSR9, 45 infor$in( the latter that he did not (ive a road ri(ht of a% over his propert% in favor of
Soledad Orte(a, the developer of :$$anuel Ho$es Subdivision. This letter see$s to be an after$ath
of the testi$on% of :n(r. Ravello that the notariFed affidavit of Ipapo sub$itted b% Soledad Orte(a to
the HSR9 could not be located in the records of the 9o$$ission.45 This ne $atter, hoever, is
inad$issible in evidence, not havin( been authenticated in accordance ith Section "D, Rule '4" of the
Rules of 9ourt. It as, therefore, erroneous on the part of the 9ourt of 1ppeals to consider this piece of
evidence in its Resolution .or The Motion .or Reconsideration dated 1u(ust '3, '?@;. 47
There bein( an e)istin( ri(ht of a% over the Ipapo propert%, the first re7uire$ent for a (rant of a
co$pulsor% ease$ent of ri(ht of a% over the .loro Par/ Subdivision has not been $et.
In Talisay-Silay illing !o. v. !ourt of "irst #nstance of $egros Occidental, 46 the court e)plained
hat is $eant b% pa%$ent or prepa%$ent of the re7uired inde$nit% under 1rticle ;3? of the 9ivil
9ode, as follos&
. . . Prepa%$ent, as e used the ter$ $eans the deliver% of the proper inde$nit%
re7uired b% la for the da$a(e that $i(ht be incurred b% the servient estate in the
event the le(al ease$ent is constituted. The fact that a voluntar% a(ree$ent upon
the e)tent of co$pensation cannot be reached b% the parties involved, is not an
i$pedi$ent to the establish$ent of such ease$ent. Precisel%, the action of the
do$inant estate a(ainst the servient estate should include a pra%er for the fi)in(
of the a$ount hich $a% be due fro$ the for$er to the latter.
In the case at bench, no proof as presented b% private respondent 2lenado that he co$plied ith
this re7uire$ent. The co$plaint for ease$ent of ri(ht of a% filed b% hi$ in the loer court did
not contain a pra%er for the fi)in( of the a$ount that he $ust pa% .loro in the event that the
ease$ent of ri(ht of a% be constituted. Thus, the e)istence of the second re7uisite has li/eise
not been established.
There can be no den%in( that the isolation of the 2lenado Ho$es Subdivision is the doin( of its
oner,developer,applicant. It appears that the access road indicated in the Plan of the :$$anuel
Ho$es Subdivision and the 2lenado Ho$es Subdivision for hich a ri(ht of a% over the Ipapo
propert% as procured, as $erel% for the sa/e of securin( an approval of the proposed
develop$ent plan. There ere no proofs of actual or/ havin( been done to construct a road,
even *ust a dirt road, over the ri(ht of a% that ould connect Road 2ot 4 of the 2lenado Ho$es
Subdivision to the Mac1rthur Hi(ha%. Private respondent 2lenado ad$itted that the Ipapo
riceland as no lon(er bein( cultivated and there as alread% a fence $ade of adobe all
constructed on it. 49Indications are that it has alread% been abandoned as a ricefield. There as no
reason for private respondent-s failure to develop the ri(ht of a% e)cept the inconvenience and
e)penses it ould cost hi$. Hence, the third re7uisite has not been $et.
If the servitude re7uested b% private respondent 2lenado is alloed, other subdivision
developers,oners ould be encoura(ed to hastil% prepare a subdivision plan ith fictitious
provisions for access roads $erel% for re(istration purposes. Thereafter, said developers could
abandon their dul% approved plans and, for hatever reason, open up another a% throu(h another
propert% under the prete)t that the% have inade7uate outlets to a public road or hi(ha%.
.urther$ore, if such practice ere tolerated, the ver% purpose for hich Presidential Decree No.
?56 as enacted, that is, to protect subdivision bu%ers fro$ unscrupulous subdivision
oners,developers ho rene(e on their duties to develop their subdivisions in accordance ith the
dul% approved subdivision plans, ould be defeated.
The 9ourt ta/es co(niFance of the fact that, instead of developin( the proposed access road,
private respondent 2lenado applied for the conversion of 2ot '3 of 0loc/ ; into a road lot to
connect it ith Road 2ot 5 of the .loro Par/ Subdivision, citin( as reason therefor, that the
a$end$ent sou(ht ould create a 8$ore ade7uate and practical passa(e8 fro$ the 2lenado
Ho$es Subdivision to the Mac1rthur National Hi(ha% and vice<versa. The 8convenience8 of
usin( Road 2ots 3 and 5 of the .loro Par/ Subdivision ill not suffice, hoever, to *ustif% the
ease$ent in favor of private respondent.
In order to *ustif% the i$position of the servitude of ri(ht of a%, there $ust be a real, not a
fictitious or artificial necessit% for it. Mere convenience for the do$inant estate is not hat is
re7uired b% la as the basis for settin( up a co$pulsor% ease$ent. :ven in the face of a necessit%,
if it can be satisfied ithout i$posin( the servitude, the sa$e should not be i$posed. 57 This
ease$ent can also be established for the benefit of a tene$ent ith an inade7uate outlet, but not hen
the outlet is $erel% inconvenient. Thus, hen a person has alread% established an ease$ent of this
nature in favor of his tene$ent, he cannot de$and another, even if the first passa(e has defects hich
$a/e passa(e i$possible, if those defects can be eli$inated b% proper repairs. 51
In the case of Ramos v. %atchalian, 52 the 9ourt denied access to Sucat Road throu(h =atchalian
1venue in vie of the fact that petitioner had a road ri(ht of a% provided b% the Sobrina Rodri(ueF
2o$bos Subdivision indicated as 2ot 3'44<=<'" in its subdivision plan for the bu%ers of its lots,
notithstandin( that said lot as still undeveloped and inconvenient to petitioner. :ven if Ra$os, the
petitioner therein, had 8to pass throu(h other lots belon(in( to other oners, hich are (rass% and
co(onal, as te$porar% in(ress,e(ress ith (reat inconvenience particularl% due to flood and $ud,8 the
9ourt did not allo the ease$ent because it ould run counter to e)istin( *urisprudence that $ere
convenience for the do$inant estate does not suffice to serve as basis for the servitude. This rulin( as
reiterated in Rivera v. #ntermediate &ppellate !ourt 53and !ostabella !orporation v. !ourt of
&ppeals. 54
1s borne out b% the records of this case, despite the closure of the sub*ect road, construction or/
at 2lenado Ho$es Subdivision continued. The alternative route ta/en b% private respondent is
ad$ittedl% inconvenient because he has to traverse several ricelands and rice paddies belon(in( to
different persons, not to $ention that said passa(e, as found b% the trial court, is i$passable durin(
the rain% season. Hoever, private respondent has no one to bla$e but hi$self for not developin(
the proposed access road throu(h the Ipapo propert%.
Aorth% of $ention is the trial court -s reason 55 for the denial of the ease$ent of ri(ht of a%, thus&
. . . Ahile it is true that the conversion of said salable !sic# 2ot '3, 0loc/ ; into a
Road 2ot has been approved b% the Hu$an Settle$ent Re(ulator% 9o$$ission,
such approval, hoever, does not ipso facto connect Road 2ot 5 and 3 !:)h. 9<'#
of the .loro Par/ Subdivision in the absence of consent and,or approval of the
oner of said .loro Par/ Subdivision. . . . It should be e$phasiFed that the end of
Road 2ot 4 of 2lenado Ho$es Subdivision facin( the Mac1rthur Hi(ha% as per
approved subdivision plan, sub*ect of the proposed a$end$ent, has been
desi(nated,specified as an access road directl% leadin( to the Mac1rthur
Hi(ha%. It is the shortest route and the road ali(n$ent is direct and in a strai(ht
line perpendicular to the Mac1rthur Hi(ha%. The disapproval, therefore, of the
closure and conse7uent conversion of both ends of Road 2ot 4 into residential
lots, in effect, $aintains Road 2ot 4 as an access road of 2lenado Ho$es
Subdivision to the $ain hi(ha%. There appears a se$blance of deception if the
provision for !the# proposed access road in the approved subdivision plan of
:$$anuel Ho$es Subdivision, no 2lenado Ho$es Subdivision, ould not be
i$ple$ented as it ould appear that the sa$e as indicated in the plans $erel%
for purposes of approval of the subdivision but not actuall% to develop and avail
of the sa$e as ori(inall% intended.
It is also orthhile to observe that on Nove$ber "?, '?@5, the then Minister of Public
Aor/s and Hi(ha%s found the construction of the concrete culvert across Palanas 9ree/
ille(al in conte$plation of Presidential Decree No. "?;, 2etters of Instructions No. '? and
Presidential Decree No. 'D;6 and ordered private respondent herein to re$ove or
de$olish the sa$e, to be carried out b% the 9hief 9ivil :n(ineer, 0ulacan :n(ineerin(
District, at the e)pense of private respondent. 55
.ailin( to establish the e)istence of the prere7uisites under 1rticles ;3? and ;5D of the 9ivil 9ode,
private respondent 2lenado-s bid for a co$pulsor% ease$ent of ri(ht of a% over Road 2ots 3 and
5 of the .loro Par/ Subdivision $ust fail.
It appears, fro$ the records that durin( the period fro$ March '?@4 until the closure of the sub*ect
roads on 1pril 6, '?@4, private respondent as alloed to pass thru petitioner-s subdivision
ithout an% a(ree$ent on co$pensation. Durin( the sa$e period, the sub*ect roads !Road 2ots 3
and 5# ere da$a(ed due to the truc/s and heav% e7uip$ent passin( thereon. Custice and e7uit%
de$and that petitioner be co$pensated for the said da$a(e. Hence, the loer court-s decision
aardin( to petitioner Thirt% Thousand Pesos !P4D,DDD.DD# as actual and co$pensator% da$a(es
should be affir$ed.
Petitioner should li/eise be inde$nified for the use of his propert% fro$ Cul% '5, '?@4 !upon the
reopenin( of the sub*ect road pursuant to the issuance of a rit of preli$inar% $andator%
in*unction# until October ';, '?@; !hen the rit as lifted#. In the absence of a specific
provision applicable in the case at bench as to the a$ount of proper inde$nit%, the aard of Si)t%
Thousand Pesos !P;D,DDD.DD# as te$perate or $oderate da$a(es pursuant to 1rticles """3 and
"""5 of the 9ivil 9ode 57 is considered proper and reasonable. 56
1s re(ards the clai$ for attorne%-s fees, considerin( that the petitioner as co$pelled to file a
petition for revie oncertiorari before this 9ourt, the a$ount of Thirt% Thousand Pesos
!P4D,DDD.DD# is *ust and reasonable.
AH:R:.OR:, this appealed decision of the 9ourt of 1ppeals is S:T 1SID: and the decision of
the trial court, as herein $odified, is R:INST1T:D. 9osts a(ainst private respondent.
"eliciano' elo' (itug and "rancisco' )).' concur.