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THIRD DIVISION
[G.R. No. 124699. July 31, 2003]
BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS
AND HEIRS OF MAGDALENO VALDEZ SR., respondents.
D E C I S I O N
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court
seeking to annul and set aside the decision
[1]
dated November 17, 1995
of the Court of Appeals, Tenth Division, which reversed the
decision
[2]
dated November 27, 1991 of the Regional Trial Court of Cebu
City, Branch IX, which ruled in favor of herein petitioner, Bogo-Medellin
Milling Company, Inc. and dismissed herein private respondents'
complaint for payment of compensation and/or recovery of possession
of real property and damages with application for restraining order or
preliminary injunction; and its resolution dated March 2, 1996 denying
petitioner's motion for reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio
Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and
Daylinda Argawanon-Melendres (hereafter the heirs), purchased from
Feliciana Santillan, on December 9, 1935, a parcel of unregistered land
covered by Tax Declaration No. 3935 with an area of one hectare, 34
ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu.
[3]
He
took possession of the property and declared it for tax purposes in his
name.
[4]

Prior to the sale, however, the entire length of the land from north
to south was already traversed in the middle by railroad tracks owned by
petitioner Bogo-Medellin Milling Co., Inc. (hereafter Bomedco). The
tracks were used for hauling sugar cane from the fields to petitioners
sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private
respondents inherited the land. However, unknown to them, Bomedco
was able to have the disputed middle lot which was occupied by the
railroad tracks placed in its name in the Cadastral Survey of Medellin,
Cebu in 1965. The entire subject land was divided into three, namely,
Cadastral Lot Nos. 953, 954 and 955. Lot Nos. 953 and 955 remained in
the name of private respondents. However, Lot No. 954, the narrow lot
where the railroad tracks lay, was claimed by Bomedco as its own and
was declared for tax purposes in its name.
[5]

It was not until 1989 when private respondents discovered the
aforementioned claim of Bomedco on inquiry with the Bureau of
Lands. Through their lawyer, they immediately demanded the legal basis
for Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry
addressed to petitioner went unheeded, as was their subsequent
demand for payment of compensation for the use of the land.
[6]

On June 8, 1989, respondent heirs filed a Complaint for Payment
of Compensation and/or Recovery of Possession of Real Property and
Damages with Application for Restraining Order/Preliminary Injunction
against Bomedco before the Regional Trial Court of Cebu.
[7]
Respondent
heirs alleged that, before she sold the land to Valdez, Sr. in 1935,
Santillan granted Bomedco, in 1929, a railroad right of way for a period
of 30 years. When Valdez, Sr. acquired the land, he respected the
grant. The right of way expired sometime in 1959 but respondent heirs
allowed Bomedco to continue using the land because one of them was
then an employee of the company.
[8]

In support of the complaint, they presented an ancient document
an original copy of the deed of sale written in Spanish and dated
December 9, 1935
[9]
to evidence the sale of the land to Magdaleno
Valdez, Sr.; several original real estate tax receipts
[10]
including Real
Property Tax Receipt No. 3935
[11]
dated 1922 in the name of Graciano de
los Reyes, husband of Feliciana Santillan, and Real Property Tax Receipt
No. 09491
[12]
dated 1963 in the name of Magdaleno Valdez, Sr.
Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was
the owner and possessor of Cadastral Lot No. 954, having allegedly
bought the same from Feliciana Santillan in 1929, prior to the sale of the
property by the latter to Magdaleno Valdez, Sr. in 1935. It also
contended that plaintiffs claim was already barred by prescription and
laches because of Bomedcos open and continuous possession of the
property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale
[13]
dated March 18,
1929; seven real estate tax receipts
[14]
for the property covering the
period from 1930 to 1985; a 1929 Survey Plan of private land for Bogo-
Medellin Milling Company;
[15]
a Survey Notification Card;
[16]
Lot Data
Computation for Lot No. 954;
[17]
a Cadastral Map for Medellin
Cadastre
[18]
as well as the testimonies of Vicente Basmayor, Geodetic
Engineer and property custodian for Bomedco, and Rafaela A. Belleza,
Geodetic Engineer and Chief of the Land Management Services of the
DENR, Region VIII.
In its decision dated November 27, 1991, the trial court
[19]
rejected
Bomedco's defense of ownership on the basis of a prior sale, citing that
its evidence a xerox copy of the Deed of Sale dated March 18, 1929
was inadmissible and had no probative value. Not only was it not signed
by the parties but defendant Bomedco also failed to present the original
copy without valid reason pursuant to Section 4, Rule 130 of the Rules of
Court.
[20]

Nonetheless, the trial court held that Bomedco had been in
possession of Cadastral Lot No. 954 in good faith for more than 10 years,
thus, it had already acquired ownership of the property through
acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT
easements can be acquired by prescription after ten (10) years. The
apparent characteristic of the questioned property being used by
defendant as an easement is no longer at issue, because plaintiffs
themselves had acknowledged that the existence of the railway tracks of
defendant Bomedco was already known by the late Magdaleno Valdez,
herein plaintiffs predecessor-in-interest, before the late Magdaleno
Valdez purchased in 1935 from the late Feliciana Santillan the land
described in the Complaint where defendants railway tracks is
traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to the continuity of
defendants use of the strip of land as easement is *sic] also manifest
from the continuous and uninterrupted occupation of the questioned
property from 1929 up to the date of the filing of the instant
Complaint. In view of the defendants UNINTERRUPTED possession of
the strip of land for more than fifity (50) years, the Supreme Courts
ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not
applicable. This is because in said case the easement in question was a
strip of dirt road whose possession by the dominant estate occurs only
everytime said dirt road was being used by the dominant estate. Such
fact would necessarily show that the easements possession by the
dominant estate was never continuous. In the instant case however,
there is clear continuity of defendants possession of the strip of land it
had been using as railway tracks. Because the railway tracks which
defendant had constructed on the questioned strip of land had been
CONTINUOUSLY occupying said easement. Thus, defendant Bomedcos
apparent and continuous possession of said strip of land in good faith for
more than ten (10) years had made defendant owner of said strip of land
traversed by its railway tracks. Because the railway tracks which
defendant had constructed on the questioned strip of land had been
continuously occupying said easement [sic]. Thus, defendant Bomedcos
apparent and continuous possession of said strip of land in good faith for
more than ten (10) years had made defendant owner of said strip of land
traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which
found that Bomedco did not acquire ownership over the lot. It
consequently reversed the trial court. In its decision dated November
17, 1995, the appellate court held that Bomedco only acquired an
easement of right of way by unopposed and continuous use of the
land, but not ownership, under Article 620 of the Civil Code.
The appellate court further ruled that Bomedcos claim of a prior
sale to it by Feliciana Santillan was untrue. Its possession being in bad
faith, the applicable prescriptive period in order to acquire ownership
over the land was 30 years under Article 1137 of the Civil Code. Adverse
2

possession of the property started only in 1965 when Bomedco
registered its claim in the cadastral survey of Medellin. Since only 24
years from 1965 had elapsed when the heirs filed a complaint against
Bomedco in 1989, Bomedcos possession of the land had not yet ripened
into ownership.
And since there was no showing that respondent heirs or their
predecessor-in-interest was ever paid compensation for the use of the
land, the appellate court awarded compensation to them, to be
computed from the time of discovery of the adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate
court in its resolution dated March 22, 1996, Bomedco now interposes
before us this present appeal by certiorari under Rule 45, assigning the
following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
REVERSED AND SET ASIDE THE TRIAL COURTS DECISION DISMISSING
PRIVATE RESPONDENTS COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
ORDERED THE PETITIONER TO PAY THE PRIVATE RESPONDENT THE
REASONABLE VALUE OF LOT 954 AND THE AMOUNT OF TEN THOUSAND
(P10,000.00) PESOS AS REASONABLE ATTORNEYS FEES.
Petitioner Bomedco reiterates its claim of ownership of the
land through extraordinary acquisitive prescription under Article 1137 of
the Civil Code and laches to defeat the claim for compensation or
recovery of possession by respondent heirs. It also submits a third
ground originally tendered by the trial court acquisition of the
easement of right of way by prescriptionunder Article 620 of the Civil
Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive
prescription under Article 1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in
the continuous possession of petitioner since 1929. But possession, to
constitute the foundation of a prescriptive right, must be possession
under a claim of title, that is, it must be adverse.
[21]
Unless coupled with
the element of hostility towards the true owner, possession, however
long, will not confer title by prescription.
[22]

After a careful review of the records, we are inclined to believe the
version of respondent heirs that an easement of right of way was
actually granted to petitioner for which reason the latter was able to
occupy Cadastral Lot No. 954. We cannot disregard the fact that, for the
years 1930, 1937, 1949, 1962 and 1963, petitioner unequivocally
declared the property to be a central railroad right of way or sugar
central railroad right of way in its real estate tax receipts when it could
have declared it to be industrial land as it did for the years 1975 and
1985.
[23]
Instead of indicating ownership of the lot, these receipts
showed that all petitioner had was possession by virtue of the right of
way granted to it. Were it not so and petitioner really owned the land,
petitioner would not have consistently used the phrases central railroad
right of way and sugar central railroad right of way in its tax
declarations until 1963. Certainly an owner would have found no need
for these phrases. A person cannot have an easement on his own land,
since all the uses of an easement are fully comprehended in his general
right of ownership.
[24]

While it is true that, together with a persons actual and adverse
possession of the land, tax declarations constitute strong evidence of
ownership of the land occupied by him,
[25]
this legal precept does not
apply in cases where the property is declared to be a mere easement of
right of way.
An easement or servitude is a real right, constituted on the
corporeal immovable property of another, by virtue of which the owner
has to refrain from doing, or must allow someone to do, something on
his property, for the benefit of another thing or person. It exists only
when the servient and dominant estates belong to two different owners.
It gives the holder of the easement an incorporeal interest on the land
but grants no title thereto. Therefore, an acknowledgment of the
easement is an admission that the property belongs to another.
[26]

Having held the property by virtue of an easement, petitioner
cannot now assert that its occupancy since 1929 was in the concept of
an owner. Neither can it declare that the 30-year period of
extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely
imposed on the property in its favor, its possession immediately became
adverse to the owner in the late 1950s when the grant was alleged by
respondent heirs to have expired. It stresses that, counting from the late
1950s (1959 as found by the trial court), the 30-year extraordinary
acquisitive prescription had already set in by the time respondent heirs
made a claim against it in their letters dated March 1 and April 6, 1989.
We do not think so. The mere expiration of the period of
easement in 1959 did not convert petitioners possession into an adverse
one. Mere material possession of land is not adverse possession as
against the owner and is insufficient to vest title, unless such possession
is accompanied by the intent to possess as an owner.
[27]
There should be
a hostile use of such a nature and exercised under such circumstances as
to manifest and give notice that the possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by
petitioner sugar mill from which an adverse claim can be implied, its
possession of the lot can only be presumed to have continued in the
same character as when it was acquired (that is, it possessed the land
only by virtue of the original grant of the easement of right of way),
[28]
or
was by mere license or tolerance of the owners (respondent heirs).
[29]
It
is a fundamental principle of law in this jurisdiction that acts of
possessory character executed by virtue of license or tolerance of the
owner, no matter how long, do not start the running of the period of
prescription.
[30]

After the grant of easement expired in 1959, petitioner never
performed any act incompatible with the ownership of respondent heirs
over Cadastral Lot No. 954. On the contrary, until 1963, petitioner
continued to declare the sugar central railroad right of way in its realty
tax receipts, thereby doubtlessly conceding the ownership of respondent
heirs. Respondents themselves were emphatic that they simply tolerated
petitioners continued use of Cadastral Lot No. 954 so as not to
jeopardize the employment of one of their co-heirs in the sugar mill of
petitioner.
[31]

The only time petitioner assumed a legal position adverse to
respondents was when it filed a claim over the property in 1965 during
the cadastral survey of Medellin. Since then (1965) and until the filing of
the complaint for the recovery of the subject land before the RTC of
Cebu in 1989, only 24 years had lapsed. Since the required 30-year
extraordinary prescriptive period had not yet been complied with in
1989, petitioner never acquired ownership of the subject land.
Laches
Neither can petitioner find refuge in the principle of laches. It is
not just the lapse of time or delay that constitutes laches. The essence
of laches is the failure or neglect, for an unreasonable and unexplained
length of time, to do that which, through due diligence, could or should
have been done earlier, thus giving rise to a presumption that the party
entitled to assert it had either abandoned or declined to assert it.
[32]

Its essential elements are: (a) conduct on the part of the
defendant, or of one under whom he claims, giving rise to the situation
complained of; (b) delay in asserting complainants rights after he had
knowledge of defendants acts and after he has had the opportunity to
sue; (c) lack of knowledge or notice by defendant that the complainant
will assert the right on which he bases his suit; and (d) injury or prejudice
to the defendant in the event the relief is accorded to the
complainant.
[33]

The second element (which in turn has three aspects) is lacking in
the case at bar. These aspects are: (a) knowledge of defendant's action,
(b) opportunity to sue defendant after obtaining such knowledge and (c)
delay in the filing of such suit.
[34]

Records show that respondent heirs only learned about
petitioners claim on their property when they discovered the inscription
for the cadastral survey in the records of the Bureau of Lands in 1989.
Respondents lost no time in demanding an explanation for said claim in
3

their letters to the petitioner dated March 1, 1989 and April 6,
1989. When petitioner ignored them, they instituted their complaint
before the Regional Trial Court of Cebu City on June 8, 1989.
Petitioners reliance on Caro vs. Court of Appeals
[35]
and Vda. de
Alberto vs. Court of Appeals
[36]
is misplaced. There, laches was applied to
bar petitioners from questioning the ownership of the disputed
properties precisely because they had knowledge of the adverse claims
on their properties yet tarried for an extraordinary period of time before
taking steps to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a
rule of equity and applied not to penalize neglect or sleeping on ones
rights but rather to avoid recognizing a right when to do so would result
in a clearly unfair situation. The question of laches is addressed to the
sound discretion of the court and each case must be decided according
to its particular circumstances.
[37]
It is the better rule that courts, under
the principle of equity, should not be guided or bound strictly by the
statute of limitations or the doctrine of laches if wrong or injustice will
result.
It is clear that petitioner never acquired ownership over Cadastral
Lot No. 954 whether by extraordinary acquisitive prescription or by
laches.
Acquisition of Easement of Right of Way By
Prescription Under Art. 620 of the Civil Code
Petitioner contends that, even if it failed to acquire ownership of
the subject land, it nevertheless became legally entitled to the easement
of right of way over said land by virtue of prescription under Article 620
of the Civil Code:
Continuous and apparent easements are acquired either by virtue of a
title or by prescription of ten years.
The trial court and the Court of Appeals both upheld this view for
the reason that the railroad right of way was, according to
them, continuous and apparent in nature. The more or less permanent
railroad tracks were visually apparent and they continuously occupied
the subject strip of land from 1959 (the year the easement granted by
Feliciana Santillan to petitioner expired). Thus, with the lapse of the 10-
year prescriptive period in 1969, petitioner supposedly acquired the
easement of right of way over the subject land.
Following the logic of the courts a quo, if a road for the use of
vehicles or the passage of persons is permanently cemented or
asphalted, then the right of way over it becomes continuous in
nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either
continuous or discontinuous according to the manner they are
exercised, not according to the presence of apparent signs or physical
indications of the existence of such easements. Thus, an easement is
continuous if its use is, or may be, incessant without the intervention of
any act of man, like the easement of drainage;
[38]
and it is discontinuous
if it is used at intervals and depends on the act of man, like the easement
of right of way.
[39]

The easement of right of way is considered discontinuous because
it is exercised only if a person passes or sets foot on somebody elses
land. Like a road for the passage of vehicles or persons, an easement of
right of way of railroad tracks is discontinuous because the right is
exercised only if and when a train operated by a person passes over
another's property. In other words, the very exercise of the servitude
depends upon the act or intervention of man which is the very essence
of discontinuous easements.
The presence of more or less permanent railroad tracks does not in
any way convert the nature of an easement of right of way to one that is
continuous. It is not the presence of apparent signs or physical
indications showing the existence of an easement, but rather
the manner of exercise thereof, that categorizes such easement into
continuous or discontinuous. The presence of physical or visual signs
only classifies an easement into apparent or non-apparent. Thus, a road
(which reveals a right of way) and a window (which evidences a right to
light and view) are apparent easements, while an easement of not
building beyond a certain height is non-apparent.
[40]

In Cuba, it has been held that the existence of a permanent railway
does not make the right of way a continuous one; it is only apparent.
Therefore, it cannot be acquired by prescription.
[41]
In Louisiana, it has
also been held that a right of passage over another's land cannot be
claimed by prescription because this easement is discontinuous and can
be established only by title.
[42]

In this case, the presence of railroad tracks for the passage of
petitioners trains denotes the existence of an apparent but
discontinuous easement of right of way. And under Article 622 of the
Civil Code, discontinuous easements, whether apparent or not, may be
acquired only by title. Unfortunately, petitioner Bomedco never
acquired any title over the use of the railroad right of way whether by
law, donation, testamentary succession or contract. Its use of the right
of way, however long, never resulted in its acquisition of the easement
because, under Article 622, the discontinuous easement of a railroad
right of way can only be acquired by title and not by prescription.
To be sure, beginning 1959 when the original 30-year grant of right
of way given to petitioner Bomedco expired, its occupation and use of
Cadastral Lot No. 954 came to be by mere tolerance of the respondent
heirs. Thus, upon demand by said heirs in 1989 for the return of the
subject land and the removal of the railroad tracks, or, in the alternative,
payment of compensation for the use thereof, petitioner Bomedco
which had no title to the land should have returned the possession
thereof or should have begun paying compensation for its use.
But when is a party deemed to acquire title over the use of such
land (that is, title over the easement of right of way)? In at least two
cases, we held that if: (a) it had subsequently entered into
a contractual right of way with the heirs for the continued use of the
land under the principles of voluntary easements or (b) it had filed a case
against the heirs for conferment on it of a legal easement of right of way
under Article 629 of the Civil Code, then title over the use of the land is
deemed to exist. The conferment of a legal easement of right of way
under Article 629 is subject to proof of the following:
(1) it is surrounded by other immovables and has no
adequate outlet to a public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudicial
to the servient estate, and, insofar as consistent with
this rule, the distance from the dominant estate to
the highway is the shortest.
[43]

None of the above options to acquire title over the railroad right of
way was ever pursued by petitioner despite the fact that simple
resourcefulness demanded such initiative, considering the importance of
the railway tracks to its business. No doubt, it is unlawfully occupying
and using the subject strip of land as a railroad right of way without valid
title yet it refuses to vacate it even after demand of the
heirs. Furthermore, it tenaciously insists on ownership thereof despite a
clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys
fees in the amount of P10,000 considering the evident bad faith of
petitioner in refusing respondents just and lawful claims, compelling the
latter to litigate.
[44]

WHEREFORE, the petition is DENIED. The appealed decision dated
November 17, 1995 and resolution dated March 2, 1996 of the Court of
Appeals are AFFIRMED with MODIFICATION. Petitioner Bogo-Medellin
Milling Company, Inc. is hereby ordered to vacate the subject strip of
land denominated as Cadastral Lot No. 954, remove its railway tracks
thereon and return its possession to the private respondents, the heirs
of Magdaleno Valdez, Sr. It is also hereby ordered to pay private
respondents attorney's fees in the amount of P10,000.
SO ORDERED.
Puno, (Chairman), Panganiban, and Carpio-Morales, JJ., concur.
Sandoval-Gutierrez, J., on official leave.
4







Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-37409 May 23, 1988
NICOLAS VALISNO, plaintiff-appellant,
vs.
FELIPE ADRIANO, defendant-appellee.
GRIO-AQUINO, J.:
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 plaintiff-appellant 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
5

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.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.















Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-66520 August 30, 1988
EDUARDO C. TAEDO, petitioner,
vs.
HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court,
7th Judicial Region, Branch XXI, Cebu City; Spouses ROMEO SIM and
PACITA S. SIM; and Spouses ANTONIO CARDENAS and MAE LINDA
CARDENAS, respondents.
PADILLA, J.:
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:
6

The private respondent Antonio Cardenas was the owner of two (2)
contiguous parcels of land situated in Cebu City which he had inherited
from Lourdes Cardenas and more particularly known as Lot 7501-A, with
an area of 140 square meters and Lot 7501-B, with an area of 612 square
meters. On Lot 7501-A is constructed an apartment building, while the
improvements on Lot 7501-B consist of one four-door apartment of
concrete and strong materials; one two-storey house of strong materials;
a bodega of strong materials; and a septic tank for the common use of
the occupants of Lots 7501-A and 7501-B. A small portion of the
apartment building on Lot 7501-A also stands on Lot 7501-B.
On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein
petitioner Eduardo C. Taedo.
1

Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said
Eduardo C. Taedo as a security for the payment of a loan in the amount
of P10,000.00.
2

Antonio Cardenas further agreed that he would sell Lot 7501-B only to
Eduardo Taedo in case he should decide to sell it, as the septic tank in
Lot 7501-B services Lot 7501-A and the apartment building on Lot 7501-
A has a part standing on Lot 7501-B. This was confirmed in a letter, dated
26 February 1982, wherein Antonio Cardenas asked Taedo not to
deduct the mortgage loan of P10,000.00 from the purchase price of Lot
7501-A "because as we have previously agreed, I will sell to you Lot
7501-B."
3

Antonio Cardenas, however, sold Lot 7501-B to the herein respondent
spouses Romeo and Pacita Sim.
4
Upon learning of the sale, Eduardo
Taedo offered to redeem the property from Romeo Sim. But the latter
refused. Instead, Romeo Sim blocked the sewage pipe connecting the
building of Eduardo Taedo built on Lot 7501-A, to the septic tank in Lot
7501-B. He also asked Taedo to remove that portion of his building
enroaching on Lot 7501-B. As a result, Eduardo Taedo, invoking the
provisions of Art. 1622 of the Civil Code, filed an action for legal
redemption and damages, with a prayer for the issuance of a writ of
preliminary injunction, before the Regional Trial Court of Cebu, docketed
therein as Civil Case No. CEB-994, against the spouses Romeo and Pacita
Sim, Antonio Cardenas and his wife Mae Linda Cardenas, the Register of
Deeds of Cebu City, and Banco Cebuano, Cebu City Development Bank.
5

Answering, the spouses Romeo and Pacita Sim claimed that they are the
absolute owners of Lot 7501-B and that Eduardo Taedo has no right to
redeem the land under Art. 1622 of the Civil Code as the land sought to
be redeemed is much bigger than the land owned by Taedo.
6

Antonio Cardenas, upon the other hand, admitted that he had agreed to
sell Lot 7501-B to Eduardo Taedo and claimed by way of cross-claim
against the spouses Romeo and Pacita Sim that the Deed of Sale he had
executed in favor of said spouses was only intended as an equitable
mortgage, to secure the payment of amounts received by him from said
spouses as petty loans .
7

In answer to the cross-claim, the spouses Romeo and Pacita Sim insisted
that the sale executed by Antonio Cardenas of Lot 7501-B in their favor
was an absolute one.
8

Thereafter, or on 14 October 1983, the spouses Romeo and Pacita Sim
filed motions to dismiss the complaint and the cross-claim, for lack of
cause of action.
9

Acting upon these motions and other incidental motions, the respondent
judge issued the questioned order of 5 December 1983 dismissing the
complaint and cross-claim.
10

Taedo filed a motion for reconsideration of the order, but his motion
was denied on 20 January 1984.
11

Hence, the present recourse by petitioner Tanedo.
The Court finds merit in the petition. The dismissal of the complaint on
the ground of lack of cause of action, is precipitate. The settled rule
where dismissal of an action is sought on the ground that the complaint
does not state a cause of action is, that the insufficiency of the cause of
action must appear on the face of the complaint. And the test of the
sufficiency of the ultimate facts alleged in the complaint to constitute a
cause of action, is whether or not, admitting the facts alleged, the court
can render a valid judgment upon the same in accordance with the
prayer of the complaint. For this purpose, the movant is deemed to
admit hypothetically the truth of the facts thus averred.
12

In the instant case, it cannot be denied that petitioner Tanedo cannot
redeem the entire Lot 7501-B from the spouses Romeo and Pacita Sim
pursuant to the provisions of Art. 1622 Romeo and Pacita Sim pursuant
to the provisions of Art. 1622 of the Civil Code, since the lot sought to be
redeemed, has an area of 612 square meters which is much bigger, 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
Cardenassureptiously [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
7

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.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.





Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

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..
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
8

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 counter-averred, among others, that it and its
predecessors-in-interest had permitted the temporary, intermittent, and
gratuitous use of, or passage through, its property by the private
respondents and others by mere tolerance and purely as an act of
neighborliness. It justified the walling in of its property in view of the
need to insure the safety and security of its hotel and beach resort, and
for the protection of the privacy and convenience of its hotel patrons
and guests. At any rate, the petitioner alleged, the private respondents
were not entirely dependent on the subject passageway as they (private
respondents) had another existing and adequate access to the public
road through other properties. With respect to the dike it allegedly
constructed, the petitioner stated that what it built was a breakwater on
the foreshore land fronting its property and not a dike as claimed by the
private respondents. Moreover, contrary to the private respondents'
accusation, the said construction had 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.
9

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 respondentsSO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 77628 March 11, 1991
TOMAS ENCARNACION, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF
10

THE LATE EUSEBIO DE SAGUN and THE HEIRS OF THE LATE ANICETA
MAGSINO VIUDA DE SAGUN,* 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
11

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.
THIRD DIVISION
[G.R. No. 75723. June 2, 1995.]


SIMEON FLORO, Petitioner, v. ORLANDO A. LLENADO (Deceased),
substituted by his wife WENIFREDA T. LLENADO, in her own behalf as
Administratrix of the Estate of Orlando A. Llenado and as Legal Guardian
of Minors Ma. Bexina, Avelino and Antonio, all surnamed Llenado, and
the COURT OF APPEALS, Respondents.


D E C I S I O N


ROMERO, J.:


The instant petition for review on Certiorari presents two (2) issues for
resolution, namely: (1) whether or not a valid contract of easement of
right of way exists when the owner of one estate voluntarily allows the
owner of an adjacent estate passage through his property for a limited
time, without compensation; and, (2) whether or not an
owner/developer of a subdivision can demand a compulsory easement
of right of way over the existing roads of an adjacent subdivision instead
of a developing his subdivision's purposed access road as provided in his
duly approved subdivision plan.nadchanroblesvirtuallawlibrary

Simeon Floro is the owner of a piece of land known as the Floro Park
Subdivision situated in Barangay Saluysoy, Meycauayan, Bulacan. 1 The
subdivision has its own egress and ingress to and from the MacArthur
Highway by means of its Road Lot 4 and the PNR level crossing.

Orlando A. Llenado, 2 on the other hand, was the registered owner of
two (2) parcels of land, with the total area of 34, 573 sq. meters, more or
less, 3 known as the Llenado Homes Subdivision ("Llenado Homes," for
brevity). Prior to its purchase by Llenado from the owner Francisco de
Castro, the land was known as the Emmanuel Homes Subdivision, a duly
licensed and registered housing subdivision in the name of Soledad
Ortega. 4 Bounded on the South by the 5 to 6 meter-wide Palanas Creek,
5 which separates it from the Floro Park Subdivision, and on the west by
ricelands belonging to Marcial Ipapo, Montaos and Guevarra, the
Llenado Homes does not have any existing road or passage to the
MacArthur Highway. However, a proposed access road traversing the
idle riceland of Marcial Ipapo has been specifically provided in the
subdivision plan of Emmanuel Homes Subdivision which was duly
approved by the defunct Human Settlement Regulatory Commission
(now Housing and Land Use Regulatory Board). 6

Sometime in February, 1983, the Llenados sought, and were granted,
permission by the Floros to use Road Lots 4 and 5 of the Floro Park
Subdivision as the passageway to and from MacArthur Highway. On April
7, 1983, however, Floro barricaded Road Lot 5 with a pile of rocks,
wooden posts and adobe stones, thereby preventing its use by the
Llenados.

Their request for the reopening of Road Lot 5 having been denied,
Orlando Llenado instituted on April 13, 1983, a complaint before the
Regional Trial Court (RTC) of Malolos, Bulacan, against Simeon Floro for
Easement of Right of Way with the Prayer of the Issuance of a Writ of
Preliminary Mandatory Injunction and Damages. The complaint was
docketed as the Civil Case No. 6834-M and raffled off to Branch XIX,
presided over by Hon. Judge Camilio Montesa.

After hearing and ocular inspection, the trial court, in an Order dated
July 15, 1983, 7 granted the prayer for the issuance of a writ of
preliminary mandatory injunction upon the filing of a bond by Llenado in
the amount of one hundred thousand pesos (P100,000.00). Floro was
ordered:nadchanroblesvirtualawlibrary

"1. To open the road by removing the rocks and wooden posts and/or to
remove the barricade on the subject road of the Floro Park Subdivision
and enjoining him and any person or persons under him from doing or
performing any acts which will prevent (LLENADO) or his agents or any
person acting under (LLENADO's) instruction from passing through the
subject subdivision road to get into and to get out of the
aforementioned properties of (LLENADO) until further order from this
Court."

Floro moved for reconsideration but was denied the relief sought. 8 He
then filed with the Court of Appeals a petition for Certiorari and
prohibition with petition for a writ of preliminary injunction and
restraining order, but later on, moved to withdraw his petition. His
motion for withdrawal was granted by the appellate court in its
Resolution dated March 30, 1984 which declared the case closed and
terminated. 9

In the meantime, Orlando Llenado died and was substituted by his wife
Wenifreda T. Llenado as administratrix of his estate and as legal guardian
of their four (4) minor children. 10 Trial on the merits of the case which
was suspended pending resolution of the petition before the Court of
Appeals, resumed.

On October 16, 1984, the trial court rendered judgment dismissing the
case and lifting the writ of preliminary mandatory injunction previously
issued. The dispositive portion of the decision 11
reads:nadchanroblesvirtualawlibrary

"WHEREFORE, judgment is hereby rendered dismissing the instant
complaint for lack of merit, and the writ of preliminary mandatory
injunction issued in favor of the plaintiff is hereby ordered dissolved
and/or lifted. On the counterclaim posed by defendant, the plaintiff is
hereby ordered to pay defendant the following
amounts:nadchanroblesvirtualawlibrary

a. P30,000.00 as actual damages suffered by defendant;
12


b. P77,500.00 as a compensation for the use of defendant's property;

c. P15,000.00 as attorney's fees and;

d. To pay the costs of the suit.

SO ORDERED."

On the appeal by Llenado, the appellate court set aside the decision of
the trial court in a decision 12 promulgated on February 11, 1986, the
dispositive portion of which reads as
follows:nadchanroblesvirtualawlibrary

"WHEREFORE, premises considered, the decision appealed from is
hereby SET ASIDE and another one
entered:nadchanroblesvirtualawlibrary

(1) Granting the establishment of a legal or compulsory easement of
right of way passing through Road Lots 4 and 5 of defendant's Floro Park
Subdivision in favor of plaintiff's Llenado Homes Subdivision;

(2) Ordering defendant to remove immediately all of the obstructions,
such as walls, rocks and posts with which he had barricaded Road Lot 5
for the purpose of preventing plaintiff from using defendant's
subdivision as passage way to the MacArthur Highway;

(3) Ordering defendant to pay to plaintiff, upon finality of this decision,
the following:nadchanroblesvirtualawlibrary

(a) P60,000.00 temperate or moderate damages

(b) P100,000.00 moral damages; and

(c) P30,000.00 attorney's fees;

(4) Ordering plaintiff to pay to defendant the amount of P60,000.00
within ten (10) days from the date of finality of this decision as
indemnity for the right of way pursuant to the mandate of Article 649 of
the Civil Code; and

(5) Ordering defendant to pay the costs.

The liability of the defendant under No. (3) (supra) shall be legally
compensated by the liability of the plaintiff under No. (4) (supra)
automatically to the extent that the amount of one is covered by the
amount of the other.

SO ORDERED."

On August 14, 1986, the appellate court in separate resolutions denied
Floro's motion for reconsideration and supplementary motion 13 and
granted Llenado's motion for partial execution pending appeal. 14 The
latter resolution provided in its dispositive portion,
thus:nadchanroblesvirtualawlibrary

"WHEREFORE, upon the posting by plaintiff appellant of a bond in the
amount of ONE HUNDRED THOUSAND PESOS (P100,000.00) approved by
this Court, let a writ of partial execution pending appeal be issued
ordering the defendant-appellee to remove immediately all of the
obstructions, including all walls, rocks, posts, and other materials with
which he barricaded Road Lot 5, for the purpose of preventing plaintiff-
appellant from using defendant's subdivision as passage way to the
MacArthur Highway. Said Order shall include Road Lot 4 so that plaintiff-
appellant will have free access to MacArthur Highway.

SO ORDERED."

The writ of partial execution pending appeal was issued on October 2,
1986 after the instant Petition had been filed and after the Court had
resolved on September 15, 1986 to require Llenado to comment
thereon. On motion of Floro, the Court issued a restraining order on
October 29, 1986, 15 enjoining the appellate court from carrying out its
writ of partial execution pending appeal. Subsequently, the instant
petition was given due course. 16

In a petition to review a decision of the Court of Appeals under Rule 45
of the Rules of Court, the jurisdiction of the Court is ordinarily confined
to reviewing errors of law committed by the court of Appeals, its findings
of fact being conclusive on the Court. 17 There are, however, exceptional
circumstances that would compel the Court to review the findings of fact
of the Court of Appeals, summarized in Remalante v. Tibe 18 and
subsequent cases 19 as follows: (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is a grave
abuse of discretion; (3) when the finding is grounded entirely on
speculations, surmises or conjectures; (4) when the judgment of the
Court of Appeals is based on misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the Court of Appeals in making
its findings went beyond the issues of the case and the same is contrary
to the admissions of both appellant and appellee; (7) when the findings
of the Court of Appeals are contrary to those of the trial court; (8) when
the findings of fact are conclusions without citation of a specific evidence
on which they are based; (9) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which,
if properly considered, would justify a different conclusion; and, (10)
when the finding of fact of the Court of Appeals are premised in the
absence of evidence and are contradicted by the evidence on record.

The findings and conclusions of the Court of Appeals, being contrary to
the findings and conclusions of the trial court, the instant case falls
within the exception. Thus, the Court may scrutinize the evidence on the
record to bring to light the real facts of the case. 20

It is not disputed that sometime in February 1983, Floro granted the
Llenados verbal permission to pass through the Floro Park Subdivision in
going to and from the MacArthur Highway. Whether such permission, as
claimed by Floro, was the month of March only, without compensation
and as a neighborly gesture for the purpose merely of enabling the
Llenados to install stone monuments (mojones) on their land, 21 or was
in relation to the easement of right of way granted in their favor, as
insisted by the Llenados, 22 the fact remains that no such contract of
easement of right of way was actually perfected between Floro and
Llenado. Both Orlando 23 and Wenifreda Llenado 24 testified the
conditions of the easement of right of way were still to be up by Floro's
lawyer. Thus, no compensation was agreed upon, and none was paid, for
the passage through Floro's property during the month of March. 25

However, when Wenifreda saw Floro in the evening of April 7, 1983 to
negotiate for the reopening of Road Lot 5 and Floro laid down his
conditions 26 for the requested reopening and presumably for the
requested easement of right of way, Orlando rejected said conditions for
being onerous. 27

In Dionisio v. Ortiz, 28 where therein private respondents claimed to
have every right to use Howmart Road as passageway to EDSA by reason
of a standing oral contract of easement of right of way with therein
petitioner, so that the latter did not have the right to put a barricade in
front of private respondent's gate and to stop them from using said gate
as a passageway to Howmart Road, the Court
said:nadchanroblesvirtualawlibrary

"There is no question that a right of way was granted in favor of the
private respondents over Howmart Road but the records disclose that
such right of way expired in December 1988. The continued use of the
easement enjoyed by QCIEA including the private respondents is by the
mere tolerance of the owner pending the renegotiation of the terms and
conditions of said right of way. . . . Absent an agreement of the parties as
to the consideration, among others, no contract of easement of right of
way has been validly entered into by the petitioner and QCIEA. Thus the
private respondent's claim of an easement of right of way over Howmart
Road has no legal or factual basis."

As in the Dionisio case, the use of Road Lots 4 and 5 by the Llenados
during the month of March was by mere tolerance of Floro pending the
negotiation of the terms and conditions of the right of way. This is
evident from the testimony of Wenifreda that "they said to us to go on
while they are preparing for the papers" and that "We can use that for a
while, while they were making for the papers." 29 Although such use was
in anticipation of a voluntary easement of right of way, no such contract
was validly entered into by reason of the failure of the parties to agree
on its terms and conditions. Thus, private respondents Llenados cannot
claim entitlement to a right of way through the Floro Park Subdivision on
the basis of a voluntary easement.

13

Having ruled that no voluntary easement of right of way had been
established in favor of private respondents Llenados, we now determine
whether or not they are entitled to a compulsory easement of right of
way.

For the Llenados to be entitled to a compulsory servitude of right of way
under the Civil Code, the preconditions provided under Articles 649 and
650 thereof must be established. These preconditions are: (1) that the
dominant estate is surrounded by other immovables and has no
adequate outlet to a public highway (Art. 649, par. 1); (2) after payment
of proper indemnity (Art. 649, par. 1); (3) that the isolation was not due
to acts of the proprietor of the dominant estate (Art. 649, last par.); and,
(4) that the right of way claimed is at the point least prejudicial to the
servient estate; and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the
shortest (Art. 650). 30

The burden of providing the existence of the prerequisites to validly
claim a compulsory right of way lies on the owner of the dominant
estate. 31 We find that private respondents have failed in this regard.

Significantly, when Orlando Llenado filed the complaint for legal
easement under Articles 649 and 650 of the Civil Code, he focused his
argument on the absence of any road, other than the closed road of the
Floro Park Subdivision, as his means of ingress and egress to and from his
property. However, he omitted to state that there is a proposed access
road through the Ipapo property.

Danilo Ravello, an engineer employed as Project Officer of the Human
Settlement Regulatory Commission (HSRC) since 1981, testified that his
duties consisted in evaluating and processing subdivision plans and
making the proper recommendation for their approval or disapproval.
The application of Soledad Ortega for the Emmanuel Homes Subdivision,
32 appearing on page 120 of the records of the HSRC, had the following
attachments: (1) Sketch Plan of the property containing an area of
34,973 sq. m.; 33 (2) Waterline Layout Plan; 34 (3) Vicinity Plan; 35 (4)
Road Plan Layout; 36 and (5) Consolidation Subdivision Plan. 37
According to Ravello, as per Plan Exhs. "10-A" and "10-C", Road Lot 3 of
the Emmanuel Homes Subdivision starts and ends with adjacent
properties; on one end, the property owned by Mariano Monadero and
the other, the property owned by a certain Ventura Tan Mariano. As per
Plans, the access road to the subdivision should have come from the
MacArthur Highway through the Ipapo property. 38 Having found on
ocular inspection that the access road indicated in the Plan did not
actually exist, the HSRC required applicant Soledad Ortega to submit a
written right of way clearance from Ipapo, which she did and on the
basis of which her application on behalf of the Emmanuel Homes
Subdivision was approved. 39

When Orlando Llenado acquired the subject property, he adopted the
subdivision plans of Emmanuel Homes and renamed it as the Llenado
Homes Subdivision. Accordingly, he applied for the issuance of a new
Development Permit and License to Sell in his name as the new owner of
the subdivision. Subsequently, the corresponding license to sell and
development permit were issued. As shown by the Consolidation
Subdivision Plan 40 submitted by Orlando Llenado, the names Soledad
Ortega/Emmanuel Homes Subdivision were merely crossed out and, in
lieu thereof, the names Orlando Llenado/Llenado Homes Subdivision
were written. In said subdivision plan which was duly approved by the
HSRC, the Ipapo Access Road was retained.

On July 1, 1983, during the pendency of Civil Case No. 6834-M, Orlando
Llenado filed with the HSRC an application for the amendment of the
original Consolidation Subdivision Plan of the Llenado Homes
Subdivision. 41 The proposed amendments, as indicated in Exh. "11-A",
42 were: (1) the conversion of Lot 14 of Block 6 into a road lot, designed
to connect with Road Lot 5 of the Floro Homes Subdivision; and, (2) the
closing of both ends of Road Lot 3, the portion leading to the Ventura
Tan Mariano property and the portion leading to the Ipapo right of way
(Adriano Monadero property), to be converted into salable residential
lots. The first proposed alteration, the conversion of Lot 14, Block 6 into
a road lot was approved on March 20, 1984. 43 The access road of
Llenado Homes Subdivision, however, remained in the Subdivision Plan
to be through the Ipapo property, as approved by the HSRC.

When asked by the court as to the policy of the HSRC regarding the
approval of a subdivision plan in connection with the right of way issue,
Engr. Ravello responded that as a prerequisite for approval, the
subdivision must have an access road. It was not necessary that the
access road be a paved road. A dirt road was a sufficient provided that
the owner of the lot used as access road gives his consent and the
owner/developer/applicant of the proposed subdivision develops the
proposed access road, 44 as approved by the HSRC in compliance with
Section 29 of Presidential Decree No. 957 which
states:nadchanroblesvirtualawlibrary

"SEC. 29 Right of Way to Public Road The owner or developer of a
subdivision without access to any existing public road or street must
secure a right of way to a public road or street and such right of way
must be developed and maintained according to the requirement of the
government authorities concerned."

On appeal to the Court of Appeals, private respondents Llenado
submitted a letter of Marcial Ipapo dated July 3, 1985 addressed to the
HSRC, 45 informing the latter that he did not give a road right of way
over his property in favor of Soledad Ortega, the developer of Emmanuel
Homes Subdivision. This letter seems to be an aftermath of the
testimony of Engr. Ravello that the notarized affidavit of Ipapo
submitted by Soledad Ortega to the HSRC could not be located in the
records of the Commission. 46 This new matter, however, is inadmissible
in evidence, not having been authenticated in accordance with Section
20, Rule 132 of the Rules of the Court. It was, therefore, erroneous on
the part of the Court of Appeals to consider this piece of evidence in its
Resolution For the Motion For Reconsideration dated August 124, 1986.
47

There being an existing right of way over the Ipapo property, the first
requirement for a grant of a compulsory easement of right of way over
the Floro Park Subdivision has not been met.

In Talisay-Silay Milling Co. v. Court of First Instance of Negros Occidental,
48 the Court explained what is meant by payment or prepayment of the
required indemnity under Article 649 of the Civil Code, as
follows:nadchanroblesvirtualawlibrary

". . . Prepayment, as we used the term means the delivery of the proper
indemnity required by law for the damage that might be incurred by the
servient estate in the event the legal easement upon the extent of
compensation cannot be reached by the parties involved, is not an
impediment to the establishment of such easement. Precisely, the actin
of the dominant estate against the servient estate should include a
prayer for the fixing of the amount which may be due from the former to
the latter."

In the case at bench, no proof was presented by private respondent
Llenado that he complied with this requirement. The complaint for
easement of right of way filed by him in the lower court did not contain a
prayer for the fixing of the amount that he must pay Floro in the event
that the easement of right of way be constituted. Thus, the existence of
the second requisite has likewise not been established.

There can be no denying that the isolation of the Llenado Homes
Subdivision is the doing of its owner/developer/applicant. It appears that
the access road indicated in the Plan of the Emmanuel Homes
Subdivision and the llenado Homes Subdivision for which a right of way
over the Ipapo property was procured, was merely for the sake of
securing an approval of the proposed development plan. There were no
proofs of actual work having been done to construct a road, even just a
dirty road, over the right of way that would connect road Lot 3 of the
Llenado Homes Subdivision to the MacArthur Highway. Private
respondents llenado admitted that the Ipapo riceland was no longer
being cultivated and there was already a fence made of adobe wall
constructed on it. 49 Indication are that it has already been abandoned
as a ricefield. There was no reason for private respondent's failure to
develop the right of way except the inconvenience and expenses it
would cost him. Hence, the third requisite has not been met.

If the servitude requested by private respondent Llenado is allowed,
other subdivision developers/owners would be encouraged to hastily
prepare a subdivision plan with fictitious provisions for access roads
merely for registration purposes. Thereafter, said developers could
abandon their duly approved plans and, for whatever reason, open up
another way through another property under the pretext that they have
inadequate outlets to a public road or highway. Furthermore, if such
14

practice were tolerated, the very purpose for which Presidential Decree
No. 957 was enacted, that is to protect subdivision buyers from
unscrupulous subdivision owners/developers who renege on their duties
to develop their subdivision plans, would be defeated.

The Court takes cognizance of the fact that, instead of developing the
proposed access road, private respondent Llenado applied for the
conversion of Lot 14 of Block 6 into a road lot to connect it with Road Lot
5 of the Floro Park Subdivision, citing as reason therefor, that the
amendment sought would create a "more adequate and practical
passage" from Llenado Homes Subdivision to the MacArthur National
Highway and vise-versa. The "convenience" of using Road Lots 4 and 5 of
the Floro Park Subdivision will not suffice, however, to justify the
easement in favor of private respondent.

In order to justify the imposition of the servitude of right of way, there
must be a real, not a fictitious or artificial necessity for it. Mere
convenience for the dominant estate is not what is required by law as
the basis for setting up a compulsory easement. Even in the face of a
necessity, if it can be satisfied without imposing the servitude, the same
should not be imposed. 50 This easement can also be established for the
benefit of a tenement with an inadequate outlet, but nit when the outlet
is merely inconvenient. Thus, when a person had already established an
easement of this nature in favor of his tenement, he cannot demand
another, even if those defects can be eliminated by proper repairs. 51

In the case of Ramos v. Gatchalian, 52 the Court denied access to Sucat
Road through Gatchalian Avenue in view of the fact that petitioner had a
road right of way provided by the Sobrina Rodriguez Lombos Subdivision
indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its
lots, notwithstanding that said lot was still undeveloped and
inconvenient to petitioner. Even if Ramos, the petitioner therein, had "to
pass through other lots belonging to other owners, which are grassy and
cogonal, as temporary ingress/egress with great inconvenience
particularly due to flood and mud," the Court did not allow the easement
because it would run counter to existing jurisprudence that mere
convenience for the dominant estate does not suffice to serve as basis
for the servitude. This ruling was reiterated in Rivera v. Intermediate
Appellate Court 53 and Constabella Corporation v. Court of Appeals. 54

As borne out by the records of this case, despite the closure of the
subject road, construction work at Llenado Homes Subdivision
continued. The alternative route taken by private respondent is
admittedly inconvenient because he has to transverse several ricelands
and rice paddies belonging to different persons, not to mention that said
passage, as found by the trial court, is impassable during the rainy
season. However, private respondent has no one to blame but himself
for not developing the proposed access road through the Ipapo
property.

Worthy of mention is the trial court's reason 55 for the denial of the
easement of right of way, thus:nadchanroblesvirtualawlibrary

". . . While it is true that the conversion of said salable (sic) Lot 14, Block
6 into a Road Lot has been approved by the Human Settlement
Regulatory Commission, such approval, however, does not ipso facto
connect Road Lot 5 and 4 (Exh. C-1) of the Floro Park Subdivision in the
absence of consent and/or approval of the owner of said Floro Park
Subdivision. . . . It should be emphasized that the end of Road Lot 3 of
Llenado Homes Subdivision facing MacArthur Highway as per approved
subdivision plan, subject of the proposed amendment, has been
designated/specified as an access road directly leading to the MacArthur
Highway. It is the shortest route and the road alignment is direct and in
straight line perpendicular to the MacArthur Highway. The disapproval,
therefore, of the closure and consequent conversion of both ends of
Road Lot 3 into residential lots, in effect, maintains Road Lot 3 as an
access road of Llenado Homes Subdivision to the main highway. There
appears a semblance of deception if the provision for (the) proposed
access road in the approved subdivision plan of Emmanuel Homes
Subdivision, now Llenado Homes Subdivision, would not be
implemented as it would appear that the same was indicated in the
plans merely for purposes of approval of the subdivision but not actually
to develop and avail of the same was originally intended."

It is also worthwhile to observe that on November 29, 1985 the then
Minister of Public Works and Highways found the construction of the
concrete culvert across Palanas Creek illegal in contemplation of
Presidential Decree No. 296, Letters of Instructions No. 19 and
Presidential Decree No. 1067 and ordered private respondent herein to
remove or demolish the same, to be carried out by the Chief Civil
Engineer, Bulacan Engineering District, at the expense of private
respondent. 56

Failing to establish the existence of the prerequisites under Articles 649
and 650 of the Civil Code, private respondent Llenado's bid for a
compulsory easement of right of way over Road Lots 4 and 5 of the Floro
Park Subdivision must fail.

It appears from the records that during the period from March 1983 until
the closure of the subject roads on April 7, 1983, private respondent was
allowed to pass thru petitioner's subdivision without any agreement or
compensation. During the same period, the subject roads (Road Lots 4
and 5) were damaged due to trucks and heavy equipment passing
thereon. Justice and equity demand that petitioner be compensated for
the said damage. Hence, the lower court's decision awarding to
petitioner Thirty Thousand Pesos (P30,000.00) as actual and
compensatory damages should be affirmed.

Petitioner should likewise be indemnified for the use of his property
from July 15, 19983 (upon the reopening of the subject road pursuant to
the issuance of a writ of preliminary mandatory injunction) until October
16, 1986 (when the writ was lifted). In the absence of a specific provision
applicable in the case at bench as to the amount of proper indemnity,
the award of Sixty Thousand Pesos (P60,000.00) as temperate or
moderate damages pursuant to Articles 2224 and 2225 of the Civil Code
57 is considered proper and reasonable. 58

As regards the claim for attorney's fees, considering that the petitioner
was compelled to file a petition for review on Certiorari before this
Court, the amount of Thirty Thousand Pesos (P30,000.00) is just
reasonable. nadchanroblesvirtuallawlibrary

WHEREFORE, the appealed decision of the Court of Appeals is SET ASIDE
and the decision of the trial court, as herein modified, is REINSTATED.
Costs against private respondent.

SO ORDERED.

Feliciano, Melo, Vitug and Francisco, JJ., concur.



















15

FIRST DIVISION
[G.R. No. 95252. September 5, 1997]
LA VISTA ASSOCIATION, INC., petitioner, vs. COURT OF APPEALS, SOLID
HOMES, INC., ATENEO DE MANILA UNIVERSITY, ROMULO
VILLA, LORENZO TIMBOL, EMDEN ENCARNACION, VICENTE
CASIO, JR., DOMINGO REYES, PEDRO C. MERCADO, MARIO
AQUINO, RAFAEL GOSECO, PORFIRIO CABALU, JR. and
ANTONIO ADRIANO, in their behalf and in behalf of the
residents of LOYOLA GRAND VILLAS, INC., PHASES I AND
II, respondents.
D E C I S I O N
BELLOSILLO, J.:
MANGYAN ROAD is a 15-meter wide thoroughfare in Quezon City
abutting Katipunan Avenue on the west, traversing the edges of La Vista
Subdivision on the north and of the Ateneo de Manila University and
Maryknoll (now Miriam) College on the south. Mangyan Road serves as
the boundary between LA VISTA on one side and ATENEO and
MARYKNOLL on the other. It bends towards the east and ends at the
gate of Loyola Grand Villas Subdivision. The road has been the subject of
an endless dispute, the disagreements always stemming from this
unresolved issue: Is there an easement of right-of-way over Mangyan
Road?
In resolving this controversy, the Court would wish to write finis to
this seemingly interminable debate which has dragged on for more than
twenty years.
The area comprising the 15-meter wide roadway was originally
part of a vast tract of land owned by the Tuasons in Quezon City and
Marikina. On 1 July 1949 the Tuasons sold to Philippine Building
Corporation a portion of their landholdings amounting to 1,330,556
square meters by virtue of a Deed of Sale with Mortgage. Paragraph
three (3) of the deed provides that x x x the boundary line between the
property herein sold and the adjoining property of the VENDORS shall be
a road fifteen (15) meters wide, one-half of which shall be taken from the
property herein sold to the VENDEE and the other half from the portion
adjoining belonging to the VENDORS.
On 7 December 1951 the Philippine Building Corporation, which
was then acting for and in behalf of Ateneo de Manila University
(ATENEO) in buying the properties from the Tuasons, sold, assigned and
formally transferred in a Deed of Assignment with Assumption of
Mortgage, with the consent of the Tuasons, the subject parcel of land to
ATENEO which assumed the mortgage. The deed of assignment states -
The ASSIGNEE hereby agrees and assumes to pay the mortgage
obligation on the above-described land in favor of the MORTGAGOR and
to perform any and all terms and conditions as set forth in the Deed of
Sale with Mortgage dated July 1, 1949, hereinabove referred to, which
said document is incorporated herein and made an integral part of this
contract by reference x x x x
On their part, the Tuasons developed a part of the estate adjoining
the portion sold to Philippine Building Corporation into a residential
village known as La Vista Subdivision. Thus the boundary between LA
VISTA and the portion sold to Philippine Building Corporation was the
15-meter wide roadway known as the Mangyan Road.
On 6 June 1952 ATENEO sold to MARYKNOLL the western portion
of the land adjacent to Mangyan Road. MARYKNOLL then constructed a
wall in the middle of the 15-meter wide roadway making one-half of
Mangyan Road part of its school campus. The Tuasons objected and
later filed a complaint before the then Court of First Instance of Rizal for
the demolition of the wall. Subsequently, in an amicable settlement,
MARYKNOLL agreed to remove the wall and restore Mangyan Road to its
original width of 15 meters.
Meanwhile, the Tuasons developed its 7.5-meter share of the 15-
meter wide boundary. ATENEO deferred improvement on its share and
erected instead an adobe wall on the entire length of the boundary of its
property parallel to the 15-meter wide roadway.
On 30 January 1976 ATENEO informed LA VISTA of the formers
intention to develop some 16 hectares of its property along Mangyan
Road into a subdivision. In response, LA VISTA President Manuel J.
Gonzales clarified certain aspects with regard to the use of Mangyan
Road. Thus -
x x x The Mangyan Road is a road fifteen meters wide, one-half of which
is taken from your property and the other half from the La Vista
Subdivision. So that the easement of a right-of-way on your 7 1/2 m.
portion was created in our favor and likewise an easement of right-of-
way was created on our 7 1/2 portion of the road in your favor
(paragraph 3 of the Deed of Sale between the Tuasons and the Philippine
Building Corporation and Ateneo de Manila dated 1 July 1949 x x x x
On 28 April 1976 LA VISTA President Manuel J. Gonzales, in a letter
to ATENEO President Fr. Jose A. Cruz, S. J., offered to buy under specified
conditions the property ATENEO was intending to develop. One of the
conditions stipulated by the LA VISTA President was that [i]t is the
essence of the offer that the mutual right of way between the Ateneo de
Manila University and La Vista Homeowners Association will be
extinguished. The offer of LA VISTA to buy was not accepted by
ATENEO. Instead, on 10 May 1976 ATENEO offered to sell the property
to the public subject to the condition that the right to use the 15-meter
roadway will be transferred to the vendee who will negotiate with the
legally involved parties regarding the use of such right as well as the
development costs for improving the access road.
LA VISTA became one of the bidders. However it lost to Solid
Homes, Inc., in the bidding. Thus on 29 October 1976 ATENEO executed
a Deed of Sale in favor of Solid Homes, Inc., over parcels of land covering
a total area of 124,424 square meters subject, among others, to the
condition that -
7. The VENDOR hereby passes unto the VENDEE, its assigns and
successors-in-interest the privileges of such right of way which the
VENDOR acquired, and still has, by virtue of the Deeds mentioned in the
immediately preceeding paragraph hereof; provided, that the VENDOR
shall nonetheless continue to enjoy said right of way privileges with the
VENDEE, which right of way in favor of the VENDOR shall be annotated
on the pertinent road lot titles. However it is hereby agreed that the
implementation of such right of way shall be for the VENDEEs sole
responsibility and liability, and likewise any development of such right of
way shall be for the full account of the VENDEE. In the future, if needed,
the VENDOR is therefore free to make use of the aforesaid right of way,
and/or Mangyan Road access, but in such a case the VENDOR shall
contribute a pro-rata share in the maintenance of the area.
Subsequently, Solid Homes, Inc., developed a subdivision now
known as Loyola Grand Villas and together they now claim to have an
easement of right-of-way along Mangyan Road through which they could
have access to Katipunan Avenue.
LA VISTA President Manuel J. Gonzales however informed Solid
Homes, Inc., that LA VISTA could not recognize the right-of-way over
Mangyan Road because, first, Philippine Building Corporation and its
assignee ATENEO never complied with their obligation of providing the
Tuasons with a right-of-way on their 7.5-meter portion of the road and,
second, since the property was purchased for commercial purposes,
Solid Homes, Inc., was no longer entitled to the right-of-way as Mangyan
Road was established exclusively for ATENEO in whose favor the right-of-
way was originally constituted. LA VISTA, after instructing its security
guards to prohibit agents and assignees of Solid Homes, Inc., from
traversing Mangyan Road, then constructed one-meter high cylindrical
concrete posts chained together at the middle of and along the entire
length of Mangyan Road thus preventing the residents of LOYOLA from
passing through.
Solid Homes, Inc., complained to LA VISTA but the concrete posts
were not removed. To gain access to LOYOLA through Mangyan Road an
opening through the adobe wall of ATENEO was made and some six (6)
cylindrical concrete posts of LA VISTA were destroyed. LA VISTA then
stationed security guards in the area to prevent entry to LOYOLA through
Mangyan Road.
16

On 17 December 1976, to avert violence, Solid Homes, Inc.,
instituted the instant case, docketed as Civil Case No. Q-22450, before
the then Court of First Instance of Rizal and prayed that LA VISTA be
enjoined from preventing and obstructing the use and passage of
LOYOLA residents through Mangyan Road. LA VISTA in turn filed a third-
party complaint against ATENEO. On 14 September 1983 the trial court
issued a preliminary injunction in favor of Solid Homes, Inc. (affirming an
earlier order of 22 November 1977), directing LA VISTA to desist from
blocking and preventing the use of Mangyan Road. The injunction order
of 14 September 1983 was however nullified and set aside on 31 May
1985 by the then Intermediate Appellate Court
[1]
in AC-G.R. SP No.
02534. Thus in a petition for review on certiorari, docketed as G.R. No.
71150, Solid Homes, Inc., assailed the nullification and setting aside of
the preliminary injuntion issued by the trial court.
Meanwhile, on 20 November 1987 the Regional Trial Court of
Quezon City rendered a decision on the merits
[2]
in Civil Case No. Q-
22450 affirming and recognizing the easement of right-of-way along
Mangyan Road in favor of Solid Homes, Inc., and ordering LA VISTA to
pay damages thus -
ACCORDINGLY, judgment is hereby rendered declaring that an easement
of a right-of-way exists in favor of the plaintiff over Mangyan Road, and,
consequently, the injunction prayed for by the plaintiff is granted,
enjoining thereby the defendant, its successors-in-interest, its/their
agents and all persons acting for and on its/their behalf, from closing,
obstructing, preventing or otherwise refusing to the plaintiff, its
successors-in-interest, its/their agents and all persons acting for and on
its/their behalf, and to the public in general, the unobstructed ingress
and egress on Mangyan Road, which is the boundary road between the
La Vista Subdivision on one hand, and the Ateneo de Manila University,
Quezon City, and the Loyola Grand Villas Subdivision, Marikina, Metro
Manila, on the other; and, in addition the defendant is ordered to pay
the plaintiff reasonable attorneys fees in the amount
of P30,000.00. The defendant-third-party plaintiff is also ordered to pay
the third-party defendant reasonable attorneys fees for another amount
of P15,000.00. The counter-claim of the defendant against the plaintiff
is dismissed for lack of merit. With costs against the defendant.
Quite expectedly, LA VISTA appealed to the Court of Appeals,
docketed as CA-G.R. CV No. 19929. On 20 April 1988 this Court, taking
into consideration the 20 November 1987 Decision of the trial court,
dismissed the petition docketed as G.R. No. 71150 wherein Solid Homes,
Inc., sought reversal of the 31 May 1985 Decision in AC-G.R. SP No.
02534 which nullified and set aside the 14 September 1983 injunction
order of the trial court. There we said -
Considering that preliminary injunction is a provisional remedy which
may be granted at any time after the commencement of the action and
before judgment when it is established that the plaintiff is entitled to the
relief demanded and only when his complaint shows facts entitling such
reliefs (Section 3(a), Rule 58) and it appearing that the trial court had
already granted the issuance of a final injunction in favor of petitioner in
its decision rendered after trial on the merits (Sections 7 & 10, Rule 58,
Rules of Court), the Court resolved to Dismiss the instant petition having
been rendered moot and academic. An injunction issued by the trial
court after it has already made a clear pronouncement as to the
plaintiffs right thereto, that is, after the same issue has been decided on
the merits, the trial court having appreciated the evidence presented, is
proper, notwithstanding the fact that the decision rendered is not yet
final (II Moran, pp. 81-82, 1980 ed.). Being an ancillary remedy, the
proceedings for preliminary injunction cannot stand separately or
proceed independently of the decision rendered on the merit of the
main case for injunction. The merit of the main case having been
already determined in favor of the applicant, the preliminary
determination of its non-existence ceases to have any force and effect.
[3]

On the other hand, in CA-G.R. CV No. 19929, several incidents
were presented for resolution: two (2) motions filed by Solid Homes,
Inc., to cite certain officers of LA VISTA for contempt for alleged violation
of the injunction ordaining free access to and egress from Mangyan
Road, to which LA VISTA responded with its own motion to cite Solid
Homes, Inc., for contempt; a motion for leave to intervene and to re-
open Mangyan Road filed by residents of LOYOLA; and, a petition
praying for the issuance of a restraining order to enjoin the closing of
Mangyan Road. On 21 September 1989 the incidents were resolved by
the Court of Appeals
[4]
thus -
1. Defendant-appellant La Vista Association, Inc., its Board of Directors
and other officials and all persons acting under their orders and in their
behalf are ordered to allow all residents of Phase I and II of Loyola Grand
Villas unobstructed right-of-way or passage through the Mangyan Road
which is the boundary between the La Vista Subdivision and the Loyola
Grand Villas Subdivision;
2. The motion to intervene as plaintiffs filed by the residents of Loyola
Grand Villas Subdivision is GRANTED; and
3. The motions for contempt filed by both plaintiff-appellee and
defendant-appellant are DENIED.
This resolution is immediately executory.
[5]

On 15 December 1989 both motions for reconsideration of Solid
Homes, Inc., and LA VISTA were denied. In separate petitions, both
elevated the 21 September 1989 and 15 December 1989 Resolutions of
the Court of Appeals to this Court. The petition of Solid Homes, Inc.,
docketed as G.R. No. 91433, prayed for an order directing the appellate
court to take cognizance of and hear the motions for contempt, while
that of LA VISTA in G.R. No. 91502 sought the issuance of a preliminary
injunction to order Solid Homes, Inc., ATENEO and LOYOLA residents to
desist from intruding into Mangyan Road.
On 22 May 1990, pending resolution of G.R. Nos. 91433 and
91502, the Second Division of the Court of Appeals
[6]
in CA-G.R. CV No.
19929 affirmed in toto the Decision of the trial court in Civil Case No. Q-
22450. On 6 September 1990 the motions for reconsideration and/or re-
raffle and to set the case for oral argument were denied. In view of the
affirmance of the Decision by the Court of Appeals in CA-G.R. CV No.
19929 this Court dismissed the petition in G.R. No. 91502 for being moot
as its main concern was merely the validity of a provisional or
preliminary injunction earlier issued. We also denied the petition in G.R.
No. 91433 in the absence of a discernible grave abuse of discretion in the
ruling of the appellate court that it could not entertain the motions to
cite the parties for contempt because a charge of contempt committed
against a superior court may be filed only before the court against whom
the contempt has been committed (Sec. 4, Rule 71, Rules of Court).
[7]

Consequently we are left with the instant case where petitioner LA
VISTA assails the Decision of respondent Court of Appeals affirming in
toto the Decision of the trial court which rendered a judgment on the
merits and recognized an easement of right-of-way along Mangyan
Road, permanently enjoining LA VISTA from closing to Solid Homes, Inc.,
and its successors-in-interest the ingress and egress on Mangyan Road.
In its first assigned error, petitioner LA VISTA argues that
respondent appellate court erred in disregarding the decisions in (a) La
Vista Association, Inc., v. Hon. Ortiz,
[8]
affirmed by this Court in Tecson v.
Court of Appeals;
[9]
(b) La Vista Association, Inc., v. Hon.
Leviste,
[10]
affirmed by this Court in Rivera v. Hon. Intermediate
Appellate Court;
[11]
and, (c) La Vista v. Hon. Mendoza,
[12]
and in holding
that an easement of right-of-way over Mangyan Road exists.
[13]

We do not agree with petitioner. The reliance of petitioner on the
cited cases is out of place as they involve the issuance of a preliminary
injunction pending resolution of a case on the merits. In the instant case,
however, the subject of inquiry is not merely the issuance of a
preliminary injunction but the final injunctive writ which was issued after
trial on the merits. A writ of preliminary injunction is generally based
solely on initial and incomplete evidence. The opinion and findings of
fact of a court when issuing a writ of preliminary injunction are
interlocutory in nature and made even before the trial on the merits is
terminated. Consequently there may be vital facts subsequently
presented during the trial which were not obtaining when the writ of
preliminary injunction was issued. Hence, to equate the basis for the
issuance of a preliminary injunction with that for the issuance of a final
injunctive writ is erroneous. And it does not necessarily mean that when
a writ of preliminary injunction issues a final injunction
follows. Accordingly, respondent Court of Appeals in its assailed
Decision rightly held that -
We are unswayed by appellants theory that the cases cited by them in
their Brief (pages 17 and 32) and in their motion for early resolution
(page 11, Rollo) to buttress the first assigned error, are final judgments
on the merits of, and therefore res judicata to the instant query. It is
17

quite strange that appellant was extremely cautious in not mentioning
this doctrine but the vague disquisition nevertheless points to this same
tenet, which upon closer examination negates the very
proposition. Generally, it is axiomatic that res judicata will attach in
favor of La Vista if and when the case under review was disposed of on
the merits and with finality (Manila Electric Co., vs. Artiaga, 50 Phil. 144;
147; S. Diego vs. Carmona, 70 Phil. 281; 283; cited in Comments on the
Rules of Court, by Moran, Volume II, 1970 edition, page 365; Roman
Catholic Archbishop vs. Director of Lands, 35 Phil. 339; 350-351, cited in
Remedial Law Compendium, by Regalado, Volume I, 1986 Fourth revised
Edition, page 40). Appellants suffer from the mistaken notion that the
merits of the certiorari petitions impugning the preliminary injunction
in the cases cited by it are tantamount to the merits of the main case,
subject of the instant appeal. Quite the contrary, the so-called final
judgments adverted to dealt only with the propriety of the issuance or
non-issuance of the writ of preliminary injunction, unlike the present
recourse which is directed against a final injunctive writ under Section
10, Rule 58. Thus the invocation of the disputed matter herein is
misplaced.
[14]

We thus repeat what we said in Solid Homes, Inc., v. La
Vista
[15]
which respondent Court of Appeals quoted in its assailed
Decision
[16]
-
Being an ancillary remedy, the proceedings for preliminary injunction
cannot stand separately or proceed independently of the decision
rendered on the merits of the main case for injunction. The merits of
the main case having been already determined in favor of the applicant,
the preliminary determination of its non-existence ceases to have any
force and effect.
Petitioner LA VISTA in its lengthy Memorandum also quotes our
ruling in Ramos, Sr., v. Gatchalian Realty, Inc.,
[17]
no less than five (5)
times
[18]
-
To allow the petitioner access to Sucat Road through Gatchalian Avenue
inspite of a road right-of-way provided by the petitioners subdivision for
its buyers simply because Gatchalian Avenue allows petitioner a much
greater ease in going to and coming from the main thoroughfare is to
completely ignore what jurisprudence has consistently maintained
through the years regarding an easement of a right-of-way, that mere
convenience for the dominant estate is not enough to serve as its
basis. To justify the imposition of this servitude, there must be a real,
not a fictitious or artificial, necessity for it (See Tolentino, Civil Code of
the Philippines, Vol. II, 2nd ed., 1972, p. 371)
Again this is misplaced. Ramos, Sr., v. Gatchalian Realty,
Inc.,
[19]
concerns a legal or compulsory easement of right-of-way -
Since there is no agreement between the contending parties in this case
granting a right-of-way by one in favor of the other, the establishment of
a voluntary easement between the petitioner and the respondent
company and/or the other private respondents is ruled out. What is left
to examine is whether or not petitioner is entitled to a legal or
compulsory easement of a right-of-way -
which should be distinguished from a voluntary easement. A legal or
compulsory easement is that which is constituted by law for public use
or for private interest. By express provisions of Arts. 649 and 650 of the
New Civil Code, the owner of an estate may claim a legal or compulsory
right-of-way only after he has established the existence of four (4)
requisites, namely, (a) the estate is surrounded by other immovables and
is without adequate outlet to a public highway; (b) after payment of the
proper indemnity; (c) the isolation was not due to the proprietors own
acts; and, (d) the right-of-way claimed is at a point least prejudicial to the
servient estate, and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the
shortest.
[20]
A voluntary easement on the other hand is constituted
simply by will or agreement of the parties.
From the facts of the instant case it is very apparent that the
parties and their respective predecessors-in-interest intended to
establish an easement of right-of-way over Mangyan Road for their
mutual benefit, both as dominant and servient estates. This is quite
evident when: (a) the Tuasons and the Philippine Building Corporation in
1949 stipulated in par. 3 of their Deed of Sale with Mortgage that the
boundary line between the property herein sold and the adjoining
property of the VENDORS shall be a road fifteen (15) meters wide, one-
half of which shall be taken from the property herein sold to the VENDEE
and the other half from the portion adjoining belonging to the vendors;
(b) the Tuasons in 1951 expressly agreed and consented to the
assignment of the land to, and the assumption of all the rights and
obligations by ATENEO, including the obligation to contribute seven and
one-half meters of the property sold to form part of the 15-meter wide
roadway; (c) the Tuasons in 1958 filed a complaint against MARYKNOLL
and ATENEO for breach of contract and the enforcement of the
reciprocal easement on Mangyan Road, and demanded that MARYKNOLL
set back its wall to restore Mangyan Road to its original width of 15
meters, after MARYKNOLL constructed a wall in the middle of the 15-
meter wide roadway; (d) LA VISTA President Manuel J. Gonzales
admitted and clarified in 1976, in a letter to ATENEO President Fr. Jose A.
Cruz, S.J., that Mangyan Road is a road fifteen meters wide, one-half of
which is taken from your property and the other half from the La Vista
Subdivision. So that the easement of a right-of-way on your 7 1/2 m.
portion was created in our favor and likewise an easement of right-of-
way was created on our 7 1/2 m. portion of the road in your favor;
(e) LA VISTA, in its offer to buy the hillside portion of the ATENEO
property in 1976, acknowledged the existence of the contractual right-
of-way as it manifested that the mutual right-of-way between the
Ateneo de Manila University and La Vista Homeowners Association
would be extinguished if it bought the adjacent ATENEO property and
would thus become the owner of both the dominant and servient
estates; and, (f) LA VISTA President Luis G. Quimson, in a letter
addressed to the Chief Justice, received by this Court on 26 March 1997,
acknowledged that one-half of the whole length of (Mangyan Road)
belongs to La Vista Assn., Inc. The other half is owned by Miriam
(Maryknoll) and the Ateneo in equal portions;
These certainly are indubitable proofs that the parties concerned
had indeed constituted a voluntary easement of right-of-way over
Mangyan Road and, like any other contract, the same could be
extinguished only by mutual agreement or by renunciation of the owner
of the dominant estate. Thus respondent Court of Appeals did not
commit a reversible error when it ruled that -
Concerning the pivotal question posed herein on the existence of an
easement, we are of the belief, and thus hereby hold that a right-of-way
was properly appreciated along the entire route of Mangyan
Road. Incidentally, the pretense that the court a quo erred in holding
that Mangyan Road is the boundary road between La Vista and Ateneo
(page 31, Appellants Brief) does not raise any critical eyebrow since the
same is wholly irrelevant to the existence of a servitude thereon from
their express admission to the contrary (paragraph 1, Answer).
Ones attention should rather be focused on the contractual stipulations
in the deed of sale between the Tuason Family and the Philippine
Building Corporation (paragraph 3, thereof) which were incorporated in
the deed of assignment with assumption of mortgage by the Philippine
Building Corporation in favor of Ateneo (first paragraph, page 4 of the
deed) as well as in the deed of sale dated October 24, 1976 when the
property was ultimately transferred by Ateneo to plaintiff-appellee. Like
any other contractual stipulation, the same cannot be extinguished
except by voluntary rescission of the contract establishing the servitude
or renunciation by the owner of the dominant lots (Chuanico vs. Ibaez,
7 CA Reports, 2nd Series, 1965 edition, pages 582; 589, cited in Civil Law
Annotated, by Padilla, Volume II, 1972 Edition, pages602-603), more so
when the easement was implicitly recognized by the letters of the La
Vista President to Ateneo dated February 11 and April 28, 1976 (page 22,
Decision; 19 Ruling Case Law 745).
The free ingress and egress along Mangyan Road created by the
voluntary agreement between Ateneo and Solid Homes, Inc., is thus
legally demandable (Articles 619 and 625, New Civil Code) with the
corresponding duty on the servient estate not to obstruct the same so
much so that -
When the owner of the servient tenement performs acts or constructs
works impairing the use of the servitude, the owner of the dominant
tenement may ask for the destruction of such works and the restoration
of the things to their condition before the impairment was committed,
with indemnity for damages suffered (3 Sanchez Roman 609). An
injunction may also be obtained in order to restrain the owner of the
servient tenement from obstructing or impairing in any manner the
18

lawful use of the servitude (Resolme v. Lazo, 27 Phil. 416; 417;
418). (Commentaries and Jurisprudence on the Civil Code of the
Philippines, by Tolentino, Volume 2, 1963 edition, page 320)
[21]

Resultantly, when the court says that an easement exists, it is not
creating one. For, even an injunction cannot be used to create one as
there is no such thing as a judicial easement. As in the instant case, the
court merely declares the existence of an easement created by the
parties. Respondent court could not have said it any better -
It must be emphasized, however, that We are not constituting an
easement along Mangyan Road, but merely declaring the existence of
one created by the manifest will of the parties herein in recognition of
autonomy of contracts (Articles 1306 and 619, New Civil Code; Tolentino,
supra, page 308; Civil Code of the Philippines, by Paras, Volume II, 1984
edition, page 549).
[22]

The argument of petitioner LA VISTA that there are other routes to
LOYOLA from Mangyan Road is likewise meritless, to say the least. The
opening of an adequate outlet to a highway can extinguish only legal or
compulsory easements, not voluntary easements like in the case at
bar. The fact that an easement by grant may have also qualified as an
easement of necessity does not detract from its permanency as a
property right, which survives the termination of the necessity.
[23]

That there is no contract between LA VISTA and Solid Homes, Inc.,
and thus the court could not have declared the existence of an easement
created by the manifest will of the parties, is devoid of merit. The
predecessors-in-interest of both LA VISTA and Solid Homes, Inc., i.e., the
Tuasons and the Philippine Building Corporation, respectively, clearly
established a contractual easement of right-of-way over Mangyan
Road. When the Philippine Building Corporation transferred its rights
and obligations to ATENEO the Tuasons expressly consented and agreed
thereto. Meanwhile, the Tuasons themselves developed their property
into what is now known as LA VISTA. On the other hand, ATENEO sold
the hillside portions of its property to Solid Homes, Inc., including the
right over the easement of right-of-way. In sum, when the easement in
this case was established by contract, the parties unequivocally made
provisions for its observance by all who in the future might succeed
them in dominion.
The contractual easement of right-of-way having been confirmed,
we find no reason to delve on the issue concerning P.D. No. 957 which
supposedly grants free access to any subdivision street to government or
public offices within the subdivision. In the instant case, the rights under
the law have already been superseded by the voluntary easement of
right-of-way.
Finally, petitioner questions the intervention of some LOYOLA
residents at a time when the case was already on appeal, and submits
that intervention is no longer permissible after trial has been
concluded. Suffice it to say that in Director of Lands v. Court of
Appeals,
[24]
we said -
It is quite clear and patent that the motions for intervention filed by the
movants at this stage of the proceedings where trial has already been
concluded, a judgment thereon had been promulgated in favor of
private respondent and on appeal by the losing party x x x the same was
affirmed by the Court of Appeals and the instant petition for certiorari to
review said judgment is already submitted for decision by the Supreme
Court, are obviously and manifestly late, beyond the period prescribed
under x x x Section 2, Rule 12 of the Rules of Court (now Sec. 2, Rule 19,
1997 Rules of Civil Procedure).
But Rule 12 of the Rules of Court, like all other Rules therein
promulgated, is simply a rule of procedure, the whole purpose and
object of which is to make the powers of the Court fully and completely
available for justice. The purpose of procedure is not to thwart
justice. Its proper aim is to facilitate the application of justice to the rival
claims of contending parties. It was created not to hinder and delay but
to facilitate and promote the administration of justice. It does not
constitute the thing itself which courts are always striving to secure to
litigants. It is designed as the means best adopted to obtain that
thing. In other words, it is a means to an end.
The denial of the motions for intervention arising from the strict
application of the Rule due to alleged lack of notice to, or the alleged
failure of, movants to act seasonably will lead the Court to commit an act
of injustice to the movants, to their successors-in-interest and to all
purchasers for value and in good faith and thereby open the door to
fraud, falsehood and misrepresentation, should intervenors claims be
proven to be true.
After all, the intervention does not appear to have been filed to
delay the proceedings. On the contrary, it seems to have expedited the
resolution of the case as the incidents brought forth by the intervention,
which could have been raised in another case, were resolved together
with the issues herein resulting in a more thorough disposal of this case.
WHEREFORE, the Decision of respondent Court of Appeals dated
22 May 1990 and its Resolution dated 6 September 1990, which affirmed
the Decision of the RTC-Br. 89, Quezon City, dated 20 November 1987,
are AFFIRMED.
SO ORDERED.
Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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 decision
3
of the Regional Trial Court,
Davao City, Branch 14, dismissing petitioners' complaint for the exercise
of the right of first refusal under Presidential Decree No. 1517, injunction
with preliminary injunction, attorney's fees and nullity of amicable
settlement.
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;
19

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.
Davide, Jr., C.J., Kapunan, and Ynares-Santiago, JJ., concur.
Puno, J., on official leave.















FIRST DIVISION
[G. R. No. 114348. September 20, 2000]
20

NATIONAL IRRIGATION ADMINISTRATION, petitioner, vs. COURT OF
APPEALS and DICK MANGLAPUS, respondents.
D E C I S I O N
PARDO, J.:
This case is an appeal
[1]
from the decision of the Court of
Appeals
[2]
affirming in toto the decision of the Regional Trial Court,
Branch 04, Tuguegarao, Cagayan
[3]
ruling in favor of private respondent
Dick Manglapus (hereinafter referred to as "Manglapus"), and ordering
petitioner National Irrigation Administration (hereinafter referred to as
"NIA") to pay Manglapus one hundred fifty thousand six hundred pesos
(P150,600.00), and fifty thousand pesos (P50,000.00), as compensatory
damages, five thousand pesos (P5,000.00), as attorney's fees, and two
thousand pesos (P2,000.00), as litigation expenses and costs.
First, the relevant facts.
On June 28, 1963, a free patent over three (3) hectares of land,
situated in barrio Baybayog, municipality of Alcala, province of Cagayan
was issued in the name of respondent's predecessor-in-interest, Vicente
Manglapus, and registered under Original Certificate of Title No. P-
24814, in his name. The land was granted to Vicente
Manglapus,
[4]
subject to the following proviso expressly stated in the
title:
[5]

"TO HAVE AND TO HOLD the said tract of land, with the appurtenances
thereunto of right belonging unto the said VICENTE MANGLAPUS and to
his heirs and assigns forever, subject to the provisions of sections 113,
121, 122 and 124 of Commonwealth Act. No. 141, as amended which
provide that except in favor of the Government or any of its branches,
units, or institutions, the land hereby acquired shall be inalienable and
shall not be subject to encumbrance for a period of five (5) years from
the date of this patent, and shall not be liable for the satisfaction of any
debt contracted prior to the expiration of that period; that it shall not be
encumbered, alienated, or transferred to any person, corporation,
association or partnership not qualified to acquire lands of the public
domain under said Commonwealth Act No. 141, as amended; and that it
shall not be subject to any encumbrance whatsoever in favor of any
corporation, association or partnership except with the consent of the
grantee and the approval of the Secretary of Agriculture and Natural
Resources and solely for educational, religious or charitable purposes or
for a right of way; and subject finally to all conditions and public
easements and servitudes recognized and prescribed by law especially
those mentioned in sections 109, 110, 111, 112, 113 and 114 of
Commonwealth Act No. 141 as amended, and the right of the
Government to administer and protect the timber found thereon for a
term of five (5) years from the date of this patent, provided, however,
that the grantee or heirs may cut and utilize such timber for his or their
personal use (underscoring ours)."
Subsequently, respondent Manglapus acquired the lot from
Vicente Manglapus by absolute sale.
On July 18, 1974, the land was registered in Dick Manglapus' name
under Transfer Certificate of Title No. T-26658 of the Register of Deeds
for the Province of Cagayan.
[6]
The land is particularly described as
follows:
[7]

"Lot No. 3559, Pls-497, with an area of 30,438 square meters, and
covered by TRANSFER CERTIFICATE OF TITLE NO. T-26658, and Tax
Declaration No. 11985."
Sometime in 1982, NIA entered into a contract with Villamar
Development Construction. Under the contract, NIA was to construct
canals in Amulung, Cagayan and Alcala, Cagayan. NIA then entered a
portion of Manglapus' land and made diggings and fillings thereon.
[8]

The portion of Manglapus' land entered into by NIA is described as
follows:
[9]

"In a sketch prepared by NIA's employee labeled as NIA canal "Lateral
"D", with an area of 7,880 square meters, which is a portion of Lot 3559,
Pls-497."
On March 14, 1991, Manglapus filed with the Regional Trial Court,
Tuguegarao, Cagayan a complaint for damages against
NIA.
[10]
Manglapus alleged that NIA's diggings and fillings destroyed the
agricultural use of his land and that no reasonable compensation was
paid for its taking.
[11]

Despite service of notice of the pretrial conference,
[12]
NIA did not
appear at the pre-trial conference.
[13]

On December 3, 1991, the trial court declared NIA in default and
received Manglapus' evidence ex parte.
[14]

On December 23, 1991, the trial court rendered a decision in favor
of Manglapus, thus:
[15]

"WHEREFORE, and in consideration of the foregoing, the Court finds
preponderance of evidence in favor of the plaintiff and against the
defendant:
"1) Ordering the defendant to pay plaintiff the sum of One Hundred Fifty
Thousand Six Hundred Pesos (P150,600.00) and Fifty Thousand
(P50,000.00) Pesos as compensatory damages;
"2) Ordering the defendant to pay to plaintiff the sum of Five Thousand
Pesos (P5,000.00) as attorney's fees and Two Thousand Pesos
(P2,000.00) as litigation expenses; and
"3) To pay the cost of the suit.
"SO ORDERED."
On January 27, 1992, NIA filed a motion to lift the order of default
dated December 3, 1991, and to set aside the afore-quoted decision of
December 23, 1991.
[16]

On June 3, 1992, the trial court issued a resolution denying the
motion for lack of merit.
[17]

On July 17, 1992, NIA filed a notice of appeal to the Court of
Appeals.
[18]

On July 27, 1992, the trial court gave due course to the appeal and
ordered the transmission of the original records to the Court of
Appeals.
[19]

On July 30, 1992, Manglapus filed a motion for execution of
judgment with the trial court.
[20]

On August 7, 1992, the NIA through the Solicitor General filed an
opposition to the motion for execution.
[21]

On August 17, 1992, the trial court declared that since the notice
of appeal of NIA was given due course, the motion for execution was
"moot and academic."
[22]

On March 8, 1994, the Court of Appeals promulgated its decision,
the dispositive portion of which reads:
[23]

"WHEREFORE, PREMISES CONSIDERED, the decision appealed from is
hereby AFFIRMED in toto and the appeal is hereby DISMISSED.
"SO ORDERED."
Hence, this appeal.
[24]

The sole issue is whether the NIA should pay Manglapus just
compensation for the taking of a portion of his property for use as
easement of a right of way.
We find that NIA is under no such obligation. We sustain the
appeal.
We agree with NIA that the Transfer Certificate of Title
[25]
and the
Original Certificate of Title
[26]
covering the subject parcel of land
contained a reservation granting the government a right of way over the
land covered therein.
[27]

The transfer certificate of title, on which both the trial court and
Court of Appeals relied, contains such a reservation. It states that title to
the land shall be:
[28]

21

"...subject to the provisions of said Land Registration Act and the Public
Land Act, as well as those of Mining Laws, if the land is mineral, and
subject, further to such conditions contained in the original title as may
be subsisting (underscoring ours)."
Under the Original Certificate of Title,
[29]
there was a reservation
and condition that the land is subject to "to all conditions and public
easements and servitudes recognized and prescribed by law especially
those mentioned in Sections 109, 110, 111, 112, 113 and 114,
Commonwealth Act No. 141, as amended." This reservation, unlike the
other provisos
[30]
imposed on the grant, was not limited by any time
period and thus is a subsisting condition.
Section 112, Commonwealth Act No. 141, provides that lands
granted by patent,
"shall further be subject to a right of way not exceeding twenty meters in
width for public highways, railroads, irrigation ditches, aqueducts,
telegraphs and telephone lines, and similar works as the Government or
any public or quasi-public service or enterprises, including mining or
forest concessionaires may reasonably require for carrying on their
business, with damages for the improvements only (underscoring ours)."
We note that the canal NIA constructed was only eleven (11)
meters in width. This is well within the limit provided by
law.
[31]
Manglapus has therefore no cause to complain.
Article 619 of the Civil Code provides that, "Easements are
established either by law or by the will of the owners. The former are
called legal and the latter voluntary easements." In the present case, we
find and declare that a legal easement of a right-of-way exists in favor of
the government. The land was originally public land, and awarded to
respondent Manglapus by free patent. The ruling would be otherwise if
the land were originally private property, in which case, just
compensation must be paid for the taking of a part thereof for public use
as an easement of a right of way.
[32]

Neither can Manglapus argue that he was a transferee or buyer in
good faith. Under the Torrens system, for one to be a buyer in good faith
and for value, the vendee must see the transfer certificate of title and
rely upon the same.
[33]
Here, the annotation on the transfer certificate of
title imposed on Manglapus the duty to refer to the conditions
annotated on the back of the original certificate of title. This, he did not
do. The law cannot protect him. Manglapus is a transferee with notice of
the liens annotated in the title.
One who deals with property registered under the Torrens system
is charged with notice of burdens and claims that are annotated on the
title.
[34]

WHEREFORE, the Court GRANTS the petition for review
on certiorari, and REVERSES the decision of the Court of Appeals in CA-G.
R. CV No. 38835.
IN LIEU THEREOF, the Court SETS ASIDE the decision of the
Regional Trial Court, Branch IV, Tuguegarao, Cagayan in Civil Case No.
4266, and DISMISSES the complaint.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Kapunan, JJ., concur.
Ynares-Santiago, J., no part.