G.R. No.

110067 March 13, 1997

MA. LINDA T. ALMENDRAS, Petitioner,

versus

THE COURT OF APPEALS, URCICIO TAN PANG ENG and FABIANA YAP,
Respondents.

FACTS:

Petitioner, Ma. Linda T. Almendras is the registered owner of a parcel of land which was
surrounded by different properties owned by different people..The land is bounded on the
north and on the east by lots owned by private respondents Tan Pang Eng and Fabiana Yap,
on the south by the lot owned by Celedonio Bongo, and on the west by the properties of
Opone.

Sometime in September 1987, private respondents began building a concrete wall on his property
on the northern and eastern sides of petitioner's lot. For this reason, petitioner wrote private
respondents offering to buy a portion of the latter's lot, so that petitioner could have access to the
provincial road. But her request was denied by private respondents on the ground that there was
an existing private road on the western side of petitioner's property providing adequate outlet to
the provincial road. Private respondents claimed that granting petitioner's request would greatly
reduce the value of his property, as the proposed right of way cuts across the middle of the
property.

In January 1988, Celedonio Bongo also fenced his property, thus closing off the southern
boundary of petitioner's lot. Petitioner brought this action in the Regional Trial Court of Cebu for
the establishment of a right of way through private respondents' land.

Zosimo Opone subsequently closed off the western side of petitioner's property by erecting a
fence on his lot, with the result that petitioner's property became inaccessible.

After trial, the trial court rendered judgment for petitioner, granting her a right of way through
private respondents' property, upon payment by her of P11,470.00 as indemnity. The trial court
ruled that the easements were constituted for the owners of the lots through which the private
road passes and petitioner would have to negotiate with them individually to be allowed to use
the private road herself. Moreover, the road had been closed on petitioner's western boundary by
Zosimo Opone.

Private respondents appealed. The Court of Appeals rendered its decision, reversing the trial
court and holding that the road around petitioner's lot on its western and southern boundaries was
an adequate outlet for petitioner to the provincial road. Although the road is a private one, the
appellate court ruled that the designation of the beneficiaries of the easement in the titles of the
lots was neither specific nor exclusive, that there was no reason for petitioner not to negotiate
with Zosimo Opone before bringing this case, and that the closure by Zosimo Opone of the
western side of petitioner's lot was contrary to P.D. No. 1529, because it was done without the
approval of the Regional Trial Court as required therein. In any event, it was held that mere
inconvenience to the petitioner in negotiating with numerous parties for whose benefit the
easement was established was not a reason for granting petitioner an easement through private
respondents' property.

Petitioner filed a motion for reconsideration but her motion was denied for having been filed late
and for lack of merit. Hence, this petition.

ISSUE: Whether or not petitioner is entitled to a right of way through private respondents'
property

RULING: No.There is no dispute that the road abutting the western boundary of petitioner's lot,
known as the Opone road, is an existing, passable, private road which connects to another road,
the Tudtud road, on the southern side of petitioner's lot. This road leads to the Cebu-Banilad
Cadre Provincial Road located on the eastern side of petitioner's lot.

It appears that the lots traversed by the private road originally constituted only one lot, that is,
Lot 1 of the subdivision plan PSU-89847, registered under TCT No. 55684 in the name of the
Opone siblings. This lot was subdivided into seven lots, namely, Lot 1-A to Lot 1-G. A right of
way was constituted running almost the entire length of the eastern boundary of all these lots,
beginning with Lot 1-G, which belongs to Zosimo Opone, through Lot 1-A which belongs to
Silvestre Opone. The servitude was annotated on the transfer certificates of title covering the
seven lots.

Petitioner's property abuts 9.74 meters of the aforesaid right of way. As already stated, the
Opone road connects to another right of way on the property of Bienvenido Tudtud .This right of
way was constituted by Bienvenido Tudtud in favor of the individual owners of Lot 1-A to Lot
1-G by virtue of an instrument entitled "Easement of Right of Way."

In holding that petitioner's right of way should be constituted on the properties on the western
and southern boundaries of petitioner's lot, instead of through the land of private respondents as
the trial court ruled, the Court of Appeals pointed to the fact that the Tudtud and the Opone roads
already constitute permanent easements. It held that although the Tudtud easement was
constituted by naming the owners of the individual lots, the annotation of the easement
nevertheless categorically states that the easement is established "as a gesture of Bienvenido
Tudtud's love and service to his fellowmen," which, the appellate court interpreted to mean for
the benefit of the public in general.

The owner of a landlocked property has the right to demand a right of way through the
neighboring estates. The easement must be established at the point which is least prejudicial to
the servient estate and, whenever possible, the shortest to the highway. If these two conditions
exist on different properties, the land where establishment of the easement will cause the least
prejudice should be chosen. Thus, it has been held that "where the easement may be established
on any of several tenements surrounding the dominant estate, the one where the way is shortest
and will cause the least damage should be chosen. However, . . . if these two (2) circumstances
do not concur in a single tenement, the way which will cause the least damage should be used,
even if it will not be the shortest.

In the case at bar, the trial court ruled that the easement should be constituted through the land of
private respondents on the eastern side because it would be the shortest way to the provincial
road, being only 17.45 meters long, compared to 149.22 meters if the easement was constituted
on the Opone and Tudtud roads on the western and southern sides of petitioner's land.

The way may be longer and not the most direct way to the provincial road, but if the
establishment of the easement in favor of petitioner on these roads will cause the least prejudice,
then the easement should be constituted there. However, this can only be determined if the
several lot owners (i.e., the Opones and their buyers and those of Bienvenido Tudtud) are before
the court, for the determination of the point least prejudicial to the owners of servient estates (if
there are two or more possible sites for an easement) requires a comparative evaluation of the
physical conditions of the estates. It is not possible to determine whether the estates which would
be least prejudiced by the easement would be those of the owners of the Opone and Tudtud
properties because they have not been heard. Although evidence concerning the condition of
their estates has been presented by private respondents, it is impossible to determine with
certainty which estate would be least prejudiced by the establishment of an easement for
petitioner until these parties have been heard. Any decision holding them liable to bear the
easement would not be binding on them since they are not parties to this action.